Intellectual Property Rights PDF

INTELLECTUAL PROPERTY RIGHTS WIPO  WIPO ( World Intellectual Property Organization ) was established by the WIPO Convention in 1967  The WIPO is a specialized agency of the United Nations.  It promotes the protection of IP throughout the world.  Its headquarters are...

INTELLECTUAL PROPERTY RIGHTS WIPO  WIPO ( World Intellectual Property Organization ) was established by the WIPO Convention in 1967  The WIPO is a specialized agency of the United Nations.  It promotes the protection of IP throughout the world.  Its headquarters are in Geneva, Switzerland Intellectual Property Law In India  There are many big and small intellectual property law firms worldwide, like in India, USA, UK, Chicago etc, providing qualitative help to inventors and creators of product.  In India intellectual property rights are safely protected and controlled by well- established statutory and judicial framework.  Apart From that, there are many attorneys and law firm of intellectual property in India in various states. What is “Intellectual Property”?  Intellectual Property is a property that arises from the human intellect. It is a product of human creation.  Intellectual Property comprises 2 distinct forms: * Literary & Artistic Works * Industrial Property “Literary & Artistic Works” They are books, paintings, musical compositions, plays, movies, radio/tv programs, performances, & other artistic works.  How are they Protected? Protected by “COPYRIGHT” “Industrial Property”  Industrial Property describes physical matter that is the product of an idea or concept for commercial purposes.  How are they Protected? * By Patented objects * By Trademarks  * By Industrial Designs * By Trade Secrets * By Layout-designs * By Geographical Indications Major Types of IP Functional & Technical Inventions: Patents Act, 1970 Amended in 1999 & 2005 Purely Artistic works: Copyright Act, 1957 Amended in1982,1984, 1992,1994 & 1999 A symbol, logo, word, sound, color, design, etc.: Trademark Act, 1999 Amended in 1994,1996 & 2000 PATENTS (1) It is covered under the Act called the Patents Act, 1970 [Amended by Patents Act, 2005] (2) It extends to the whole of India. (3) It shall come into force on such date as the Central Government may publish, by notification in the Official Gazette. Definition:  A patent describes an invention for which the inventor claims the exclusive right. INVENTION PATENABLE IF.....  NEW (Novel)  USEFUL  NOT OBVIOUS  PERTAINS TO PATENTABLE SUBJECT MATTER Patentable Subject Matter Invention  Relates To A Process Or Product Or Both  Involves An Inventive Step  Be Capable Of Industrial Application  A Machine Life & Duration  Term of the patent is 20 years from the date of filling for all types of inventions.  Priority date- first to file  The date of patent is the date of filing the application for patent.   The term of the patent is counted from this date. Fees For Filing Patent  The Government fee for filing a patent application in India is Rs.750/- for individuals and Rs.3, 000/- for legal entities.  No fee for 1st and 2nd year  Renewal fee, on yearly basis, is required to be paid for 3rd to 20th for keeping the patent in force.  Patent lapses if renewal fee is not paid within the prescribed period. Is A Patent Granted In One Country Enforceable In Other Countries?  No, there is nothing like a global patent or a world patent. Patent rights are essentially territorial in nature  Granting a patent in one country of the Union does not force other countries to grant the patent for the same invention.  The refusal of the patent in one country does not mean that it will be terminated in all the countries Patent Holders In INDIA  The list of top 10 patents holders in India comprises only pharmaceutical and bio-tech companies.  In India, 184 patents are held by the Council of Scientific and Industrial Research, followed by ‘Ranbaxy’  While the top 10 patents holders across the world are IT companies, in India, no IT firm has patents. Youngest Patent-holder on wheelchair  JAIPUR: Drawing inspiration from scientist Stephen Hawking, a wheelchair-bound nine- year-old boy here has invented a game of six-player circular chess. The boy, Hridayeshwar Singh Bhati has got the game's design patented in his name. TRADEMARK 1. It is covered under the Act called the Trade Marks Act, 1999. 2. The Act came into effect on September 15, 2003. It replaced the Trade and Merchandise Marks Act, 1958. 3. It extends to the whole of India. 4. It shall come into force on such date as the Central Government may publish, by notification in the Official Gazette Trademark: 1. A symbol, logo, word, sound, color, design, or other device that is used to identify a business or a product in commerce. 2. Different Symbols are : ™ Intent to use application filed for product SM Intent to use application filed for services ® Registered trademark Registration Procedure  Application for search.  Application for registration.  Examination of trademark.  Advertisement of trademark.  Filing of opposition.  Certificate issued. DURATION & FEES OF TRADEMARK  Trademark is valid for 10 years from the date of application which may be renewed for further period of 10 years on payment of prescribed fees.  Service mark Rights are reserved exclusively for owners for 17 year & it can also be renewed.  The Govt. fees is Rs. 2,500 for each class of goods or services. Applicability Of Trademark  A trademark is a sign Used on, or in connection with the marketing of goods or services.  “Used on” the goods means that it may appear not only on the goods themselves but on the container or wrapper in which the goods are when they are sold. A) Set apart from surrounding text…. B) Correct use: Raymond Textile is India's leading producer of worsted suiting fabric with over 60% market share. ‘Raymond Textile’ is India's leading producer of worsted suiting fabric with over 60% market share. C) Incorrect use: D) Raymond Textile is India's leading producer of worsted suiting fabric with over 60% market share. B) Specify font, size, proportion and placement Correct use Incorrect use: ftosa  C) Do not change spelling Correct use: - Calvin Klein - Tommy Hilfiger - MPC POTTERIES GWALIOR Incorrect use: - Kalvin Klein - Tommy-Hilfiger - MPC P/G Trademarks Trademarks Name Logotype Symbol Slogan Shape Color COPYRIGHT  The Indian CopyrightAct,1957 governs the system of copyrights in India. [Amended in 1982, 1984, 1992, 1994 & 1999]  Meaning : It is a right which Grants protection to the unique expression of Ideas. Original  The term original in the copyright law means that the work originated with the author.  There is no requirement for novelty or uniqueness as there is in patent law.  Copyright law protects the expression of an idea. Not the idea itself. What is covered by copyright? Literary Films Dramatic Musical Artistic Sound Recording What is not covered by copyright?  Ideas  Facts  Recipes  Works lacking originality (e.g. The phone book)  Names, titles or short phrases Registration Procedure  Register a copyright by completing a simple application form, along with the appropriate fee  Need not send a copy of your work,  It may appear with the same title, but if each work has been created independently, each will have its own copyright protection. Duration of Copyright  Author’s lifetime + 50 years from the end of the calendar year in which the author dies,  50 years for films and sound recordings,  25 years for typographical arrangements of a published edition,  Copyright protection always expires on December 31 of the last calendar year of protection. What is “Fair Use”?  Gives permission to use copyrighted materials if certain criteria are met  Protects freedom of speech  Promotes public benefits like education Take action against Infringements What constitutes Infringement?  Any reproduction, use , distribution, performance, etc. of the work without the permission of the owner.  An identical or substantial similar reproduction is also covered  Infringement – Damages - Injunction Remedies for Patent Infringement A suit can lie in the District or High court, It may issue an injunction either to prevent the infringer from any further use & award damages to the patent owner or will pay the patent owner royalties for further use. Apple sued HTC over iPhone patents Apple sued phone maker HTC and has filed a complaint with the U.S. International Trade Commission, alleging that the Taiwanese company is infringing 20 Apple patents related to the iPhone  Steve Jobs, Apple's CEO, said in a statement "We think competition is healthy, but competitors should create their own original technology, not steal ours." Remedies for Trademark Infringement A suit can lie in District or High court  Punishment extends from 6 months to 3 years  A permanent bans on engaging in commercial activities Example of a successful civil enforcement action  3 suits filed by Adidas Saloman AG in the Delhi High Court against counterfeiters  At the initial stage, infringing goods were seized by the Local Commissioner  Cases were decreed recently & damages of Rs. 15 lakhs was awarded to Adidas Saloman Remedies for Copyright Infringement  A suit can lie in the district court or in a high court u/s 63 of the copyright act, 1957  Punishable with imprisonment up to 3 years and fined as per the claims. “…but I didn’t know!”  Called “Innocent Infringement”  Occurs when infringer was unaware that things were Protected.  No excuse if work properly displays. ▪ “Patent” ▪ Trademark symbol: ®, TM, SM ▪ Copyright notice: © + name + year Example: Utsav Sarees © 2011-2012 CONCLUSION Create yourself, rather than using other’s creations Do not use competitor’s mark in such way that it harms competitor in unfair way No comparisons that are likely to cause confusion Intellectual Property Rights and Protection of Traditional Knowledge: A General Indian Perspective 1. Intellectual Property Rights is an acronym that hardly needs to be expanded now a days. Everyone, who matters in scientific circles, is talking about intellectual property rights, and the importance of protecting scientific discoveries, with commercial potential, in a tight maze of patents. The legitimacy of the global intellectual property right system is in question for its inability to generate symmetrical opportunities for traditional knowledge-holders vis-à-vis the inventors and innovators in the formal sector. The status accorded to traditional knowledge and folklore poses particularly profound moral, legal, social, and political problems. Such knowledge is not limited to definable or articulate sets of knowable elements. Yet, inter-generational equities could be irreversibly impacted internationally depending on the way solutions to appropriate benefits are structured by vesting ownership or using rights in such knowledge because resource availability and resource use would both be impacted. 2. Liberalisation and globalization have dramatically altered perceptions about science and its practice in India. The unabashed drive to patent and protect every conceivable scientific advance, no matter how incremental, has now reached a ridiculous level in the West. American and multinational companies, never known for moderation and thoughtfulness, when commercial interests are involved, have set out to fence vast areas of science under the guise of protecting intellectual property. The exponential growth of scientific knowledge, increasing demand for new forms of intellectual property protection as well as access to IP related information, the increasing dominance of the new knowledge economy over the old ‘brick and mortar economy, complexities linked to IP in traditional knowledge, community knowledge and animate objects, will pose a challenge in setting the new 21st century IP agenda. In the context of trade and business, Trade-Related Aspects of the Intellectual Property Rights (TRIPS) and the Convention on Bio-diversity (CBD), respectably, required the creation of new economic rights and obligations to complement the IPR system under World Intellectual Property Organisation (WIPO). Matters concerning traditional knowledge hitherto pursued only in the form of cultural rights or heritage issues at the UN, UNESCO and WIPO are regarded relevant also for development rights for which the United Nations Conference on Trade and Development (UNCTAD) was created and economic rights for which earlier UN-ECOSOC and more recently, WTO have been mandated. Also, there are certain categories of traditional knowledge like traditional medicine which still are subserving the public health objectives under WHO’s Traditional Medicine Strategy for 2002-2005. Moreover, traditional knowledge is valued not because of antiquity but because more of it is transmitted orally, as part of knowledge necessary to sustain lives and livelihoods and it has an economic value that is variable. HUMAN RIGHTS PROTECTION OF TRADITIONAL KNOWLEDGE 3. Two protective paradigms have been employed to protect traditional knowledge using intellectual property tools. The first protective paradigm seeks to prevent others from using or securing intellectual property rights over traditional knowledge. For example, some communities have created traditional knowledge databases to evidence their traditional knowledge as prior art in order to prevent perceived abuses such as biopiracy. Although traditional knowledge databases may pre-empt some from securing rights over traditional knowledge, databases do disclose such traditional knowledge to the public. This becomes a problem since many communities would rather keep such traditional knowledge within their community. Many communities have their own traditional or customary laws that regulate the use of traditional knowledge that may differ substantially from their national system or the international system of intellectual property rights. Disclosure may violate these customs. 4. The second protective paradigm (often called “positive protection”) seeks to secure protective legal rights over traditional knowledge. This is achieved by either using the existing laws or using legislative means to enact new sui generis laws. Some have argued that some countries like the United States may face constitutional problems with granting perpetual rights to these communities. They also raise utilitarian concerns with granting legal rights to traditional knowledge. For instance, some forms of traditional knowledge (such as cures for disease) may be used to help others; and of exclusive rights were granted, some may go upheld. Other concerns deal with the equitable sharing of benefits and resources. 5. Indigenous and local communities have argued that they generally don’t use such incentives to innovate. Their use of knowledge is spiritually and culturally guided. Misappropriation and misuse of this knowledge may violate customary laws that are at the core of their collective and cultural identity. These beliefs are currently protected by several constitutional provisions and statutory laws, and are increasingly being recognised as a distinct human right within the United Nations. Similarly, indigenous and local communities have argued that public claims in their knowledge without their consent amounts to a misappropriation of their identity and heritage, a violation of their fundamental, inalienable and collective human rights. IPR AND TRADITIONAL MEDICINE A. THE NEEM CASE 6. A controversy that can be tagged as a first for India and which rose doubts about the strict patent system was the granting of a patent to a company, namely, W.R. Grace. The company was granted a patent in the US and the European Union, for a formulation that held the active ingredient in the neem plant in the stable storage of azadirachtin, and the same was planned to be used for its pesticidal properties. It was admitted by the applicant regarding how the pesticide uses of neem were known and he pointed out the fact that storing azadirachtin for a longer duration is difficult without the use of neem. The US patent granted, covered a limited invention whereby the applicant was only given the exclusive right to use azadirachtin in the particular storage solution described in -the patent. The grant of the said patent caused an uproar and it was challenged through re-examination and post-grant opposition proceedings before the United States Patent and Trade Mark Office (USPTO) and the European Patent Office (EPO), respectively. Though there was no success at the USPTO, the European Patent Office ruled in favour of the opposition stating the patent granted, lacked novelty and inventive steps. B. THE ‘JEEVANI’ AND ‘KANI’ TRIBES 7. New experiments are beginning to emerge on benefit-sharing models for indigenous innovation. An example of India is worth sharing. It relates to a medicine that is developed from and based on active ingredients in a plant, Trichopus zeylanicus (Arogyapaacha), found in the South-Western part of India. Scientists at the Tropical Botanic Garden and Research Institute (TBGRI) in Kerala learned of the plant, which is claimed to bolster the immune system and provide additional energy. The medicine is traditional knowledge used by Kani Tribe. These scientists isolated and tested the ingredient and incorporated it into a compound, which they christened ‘JEEVANI’, the giver of life. The tonic is being manufactured by a major Ayurvedic drug company in Kerala. C. TURMERIC PATENT 8. Two US-based Indians, Suman K. Das, and Hari Har P. Cohly were granted a US Patent 5,40,504 on 28.03.1995 on use of turmeric in wound healing. The patent was assigned to University of Mississippi Medical Centre, USA. This patent claimed the administration of an effective amount of turmeric through local and oral route to enhance the wound healing process, a novel finding. Any patent, before it is granted, has to fulfil the basic requirements of novelty, non-obviousness and utility. Thus, if the claims have been covered by the relevant published art, then the patent becomes invalid. CSIR could locate 32 references (some of them being more than 100-year-old and in Sankrit, Urdu and Hindi), which showed that this finding was well-known in India prior to filing of this patent. The formal request for re-examination of the patent was filed by CSIR at USPTO on 28.10.1996. On 20.11.1997, the examiner rejected all the claims once again as being anticipated and obvious. The re-examination certificate was issued on this case on 21.04.1998 bringing the re-examination proceedings to a close. PROTECTION AND PROMOTION OF TRADITIONAL KNOWLEDGE A. RE-EXAMINATION OF US PATENT ON BASMATI 9. Rice Tec Inc. had applied for registration of a mark ‘TEXMATI’ before the UK Trademark Registry. It was successfully opposed by the Agricultural and Processed Food Exports Authority (APEDA). One of the documents relied upon by Rice Tec as evidence in support of the registration of the said mark was the US Patent 5,663,484 (hereafter referred to as ‘484 patent’) granted by US Patent Office to Rice Tec on 02.09.1997 and this is how this patent became an issue for the contest. The said patent covered 20 claims covering not only a novel rice plant but also various rice lines; resulting in plants and grains, seed deposit claims, the method for selecting a rice plant for breeding and propagation. 10. In the wake of this controversy, the Government of India set up a Task Force under the Chairmanship of Secretary, Ministry of Industrial Development, to examine the possibilities of filing a re-examination request against the above-mentioned US patent. The Task Force, in turn, set up a technical committee comprising primarily the ICAR and CSIR scientists to examine the patent specification in detail and to collect necessary documentary evidence that may be required to file the re-examination request against the US patent. Evidence from IARI Bulletin was used against Claims 1517. Eventually, a request for re-examination of this patent was filed on 28.04.2000. Soon after filing the re-examination request, Rice Tec chose to withdraw 15 claims and the threat of infringement by the export of Basmati grains to the US has been averted. Now, with the surrender of all the other broad claims, even the alleged threat to the export of grains of insensitive rice lines from India has been averted. B. RULINGS RELEVANT TO YOGA 11. In this regard, the applicant registered his copyright interest in the book regarding the sequence of asanas with the Copyright Office, and then, in 2002 he filed a supplemental registration i.e., a correction filed when the original registration is incorrect or incomplete. According to the said supplemental registration, the applicant was not only claiming rights in the book itself but also on the sequence of 26 asanas taught in the book. An organization called Open-Source Yoga Unity, which, according to its website, is a non-profit collective to ensure the continued natural unfettered development of Yoga, challenged this supplemental registration and asked the US District Court for the Northern District of California to issue a declaratory judgment saying that the applicant could not have exclusive rights over the sequence of asanas as mentioned in the book. However, the said argument was rejected by the Court in 2005, stating that the sequence might be protectable as a compilation. Later, when a question was put to the Copyright Office for its opinion on the said matter, the agency in June 2012 issued its Policy Statement, which concluded that sequences of yoga asanas or any sequence of exercises or movements, excluding choreography, could not be protected as compilations, as they were not compilations of literary works, musical works, or any of the other kinds of works protected by the copyright law. Within six months, the Policy Statement formed the basis of another court’s decision, when in December 2012, the US District Court for the Central District of California was faced with another dispute over Bikram Yoga. The dispute started when two yoga instructors in Buffalo, New York completed the certification course from the applicant and were authorized by his organization to teach the basic Yoga system. They formed their own educational enterprise, Evolation Yoga LLC, and opened a series of yoga schools. The applicant sued Evolation Yoga LLC an alleging copyright infringement, however, the court granted summary judgment for Evolation, stating that as a matter of law a sequence of yoga asanas cannot be copyrighted. C. TRADITIONAL KNOWLEDGE DIGITAL LIBRARY 12. These cases were an eye-opener and they triggered the Government of India to create Traditional Knowledge Digital Library (TKDL) and also to include traditional knowledge in the International Patent Clarification System. TKDL is an initiative by India to digitize and document knowledge available in the public domain to facilitate systematic arrangements, dissemination, and retrieval of information. While granting patents, authorities check invention to the prior art in the public domain. Documentation of knowledge will help them trace invention in the public domain and help them to know whether it is eligible for patents, thus preventing misappropriation of traditional knowledge.