IPR Unit 1 PDF

Intellectual property (IP) (Moral & commercial values) Inventions Literary and artistic works; designs; symbols Names and images used in commerce To identify intellectual property, individuals or companies should review their creations, branding, inventions, and co...

Intellectual property (IP) (Moral & commercial values) Inventions Literary and artistic works; designs; symbols Names and images used in commerce To identify intellectual property, individuals or companies should review their creations, branding, inventions, and confidential information to determine if any of these assets fall under the categories mentioned above. Once identified, it is essential to take the necessary steps to protect these assets through legal registrations, contracts, or other means, depending on the type of intellectual property involved and the jurisdiction in which protection is sought. Two types- Industrial property & copyrights What are intellectual property rights? 1. Patents A patent is an exclusive right awarded for the development of an invention. In general, a patent gives the patent holder the right to decide how – or not – the innovation can be utilized by others. In exchange for this privilege, the patent holder publishes technical information about the invention in the patent document. 2. Copyright Copyright is a legal word that refers to the rights that authors and artists have over their literary and artistic works. Copyrighted works include anything from novels, music, paintings, sculpture, and films to computer programs, databases, commercials, maps, and technical drawings. 3. Trademarks A trademark is a marking that distinguishes one company's goods or services from those of other companies. Trademarks stretch back to prehistoric times when artists would sign or "mark" their creations. Word Marks Word Marks are the most common types of trademarks that are registered in India. These refer to any marks that are used to identify the products and services of a trading company or service-providing company. For Example - The word Nestle® is registered as a Word-Mark. Service Marks Service Marks represent the service that a company or business deals in. They distinguish different services available in the market and are filed under trademark classes 35-45. For example - FedEx is a registered courier delivery service provider. Logos and Symbols A logo is a printed/painted figure/design/character and does not consist of any letters/ words/numerals. For word marks that are also used as a logo, the trademark needs to be registered both as a word mark and a device mark. For example - Apple has a registered logo that is used on each of its products. Service marks are trademarks that have a common syllable, prefix, or suffix, thus denoting as a family of marks sharing a ‘common name.’ They should differ only as to matters of non-distinctive characters(goods, price, quality, or size). For example - McDonald’s has a series of ‘Mc’ registered as word mark which represents their different product range such as Mc Chicken, Mc Veggie, etc. Shape of Goods The shape of goods is categorized in Trade Dress (appearance of a product) wherein, other than a logo or label a product can also be distinguished based on its packaging. For example - The bottle of Coca-Cola is distinguished from other brands on the basis of its bottle shape. Series Marks Service marks are trademarks that have a common syllable, prefix, or suffix, thus denoting as a family of marks sharing a 'common name.' They should differ only as to matters of non-distinctive characters(goods, price, quality, or size). For example - McDonald's has a series of 'Mc' registered as word mark which represents their different product range such as Mc Chicken, Mc Veggie, etc. 4. Industrial designs An industrial design is the decorative or aesthetic aspect of a product. A design may include three-dimensional elements, such as an article's shape or surface, or two- dimensional elements, such as patterns, lines, or color. 5. Geographical indications Geographical indications and appellations of origin are signs that are used on items that have a specific geographical origin and have attributes, a reputation, or features that are primarily related to that location. A geographical indicator often comprises the name of the location of origin of the goods. 6. Trade secrets Trade secrets are intellectual property rights to sensitive knowledge that can be sold or licensed. Unauthorized acquisition, use, or disclosure of such secret information by others in a manner inconsistent with honest commercial procedures is considered an unfair practice and a violation of trade secret protection. 7. Plant variety rights Plant variety rights (also known as plant breeders' rights) are a type of intellectual property right established to safeguard new plant types. These rights provide legal protection as compensation for plant breeders' investments in breeding and producing new kinds. 8. Trade dress The commercial look and feel of a product or service that identifies and distinguishes the source of the product or service is referred to as trade dress. It encompasses the different aspects (such as material design and shape) used to package a product or service. Legal framework The legal framework for intellectual property management policies at academic institutions is divided into four levels: 1. International, 2. National 3. Institutional 4. Professional associations-related. Indian Patents Act, 1970 & second amendment of 1999- This law covers patent granting and regulation in India. The Act grants inventors exclusive rights for a limited time to prevent anyone from creating, using, or selling the invention without authorization. Patent Rules 2003, Intellectual Property Appellate Board (Patent procedure rules) and the Patents (Appeals and Applications of the Intellectual Property Appellate Board) rules, 2011. Trademarks Act, 1999 replaced Trae Merchandise Marks Act, 1958: This law provides for the registration and protection of trademarks in India. The Act defines a trademark as a distinctive sign that identifies the goods or services of a particular person or entity. Copyright Act, 1957: This law protects original literary, artistic, musical, and cinematographic works from unauthorized use or reproduction. The Act provides for both economic and moral rights to the creators of such works. Geographical Indications of Goods (Registration and Protection) Act, 1999: This law provides for the registration and protection of geographical indications (GIs) in India. GIs are used to identify goods originating from a particular region, territory, or country and having a specific quality, reputation, or other characteristic. The Protection of Plant Varieties and Farmers' Rights Act, 2001: This law provides for the protection of plant varieties and the rights of farmers who conserve and develop them. Industrial Designs Bill, 1999 replaced the Designs Act,1911 The Characteristics of Indian Markets for Intellectual Property Rights 1. The Indian market for intellectual property rights (IPR) is quickly growing as the country strives to become a worldwide economic power. India is a WTO member and has signed various international IPR treaties, including the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS). 2. With the goal of providing a secure and stable environment for innovators, creators, and investors, the Indian government has made major efforts to strengthen its legislative and regulatory framework for IPR protection. Several statutes, including the Patents Act of 1970, the Copyright Act of 1957, the Trademarks Act of 1999, and the Designs Act of 2000, are part of the legal framework. 3. The Indian IPR industry is big and diverse, comprising businesses ranging from pharmaceuticals to software development to entertainment. Despite recent progress, the sector still confronts some hurdles, including issues relating to enforcement and awareness. 4. In India, where piracy and counterfeiting are common, IPR enforcement is a serious concern. The government has taken many steps to solve this issue, including the establishment of specialized tribunals and the enhancement of customs enforcement. However, more needs to be done to tackle piracy and counterfeiting efficiently. 5. In India, awareness of IPR is equally low, with many individuals and businesses unaware of the need of protecting their intellectual property. The government has taken attempts to address this issue through education and communication programs, but raising awareness remains a challenge. 6. Despite these challenges, the Indian IPR industry has seen some encouraging advances. In recent years, India has taken moves to strengthen its IPR framework, including the adoption of new laws and regulations to boost intellectual property protection. India's participation in international IPR forums such as the World Intellectual Property Organization has also increased. Importance of IP for SMEs (Small and medium-sized companies) 1. Boost productivity 2. Earn licensing fees and even get royalties. 3. Patents help create a monopoly and provide protection for the company by preventing others from commercializing their innovation.  4. IP helps SMEs achieve a higher return on investment and manage their assets efficiently. IP is all around us IP is all around us. Every product or service we use in our daily lives results from a long chain of big or small innovations, such as new designs, or improvements that make a product look or function better. We can easily find IP in almost every product like a ballpoint pen or a MP3 player. 1. BALLPOINT PEN- Ladislao Biro's famous patent on ballpoint pens was in many ways a breakthrough. But, like him, many others have improved the product and its designs and legally protected their improvements through the acquisition of IP rights. The trademark on your pen is also the intellectual property, and it helps the producer to market the product and develop a loyal clientele. And this would be the case with almost any product or service in the marketplace. 2. MP3 PLAYER- Patent protection is likely to have been obtained for various technical parts of an MP3 player. Its design may be protected by industrial design rights. The brand name is most probably protected by a trademark. And the music played in the MP3 player is (or has been) protected by copyright. Patent protection is likely to have been obtained for various technical parts of a CD player. Its design may be protected by industrial design rights The brand name is most probably protected by a trademark and the music played in the CD player is (or has been) protected by copyright. The value of IP assets 1) Competitive advantage and a strong market position IP grants businesses the unique right to prevent others from economically exploiting their creative products or services. Product and allowing the company to develop its market position as a pre-eminent player. 2) Increased profit or return on investment If your company has spent a large amount of money and time in R&D, using IP system tools to recover your R&D is critical and increases your investment returns. 3) Additional money by licensing or selling (assigning) IP In order to produce additional income for the firm, the IP owner may choose to license or sell the rights to other enterprises in exchange for lump sum payments or royalties. 4) Establishing bargaining power  Owning IP assets that are of interest to others may be advantageous when asking permission to utilize others' IP assets. Enterprises frequently sign cross-licensing agreements in such instances, which are agreements in which each side enables the other firm to utilize its IP assets in the manner described in the licensing contract. 5) Improved ability to obtain financing at reasonable interest rates In some cases, enterprises seeking to commercialize a new technology may be able to raise capital more easily based on their intellectual property assets, for example, by including information about their IP assets in their business plans when approaching investors, financial institutions, government agencies, and so on. 6) Threaten or take action against mimics and free riders in a credible manner. To properly carve out the exclusivity given by an IP asset, you may need to litigate or threaten to litigate, with firms that infringe on your rights. Having IP assets increases your company's potential to take successful legal action against mimics and free riders. 7) A positive image for your company IP portfolios may be perceived as evidence of your company's high degree of experience, specialty, and technological capacity by business partners, investors, and shareholders. This could be valuable for raising cash, finding business partners, and increasing the profile and market worth of your company. Monetizing IP Bringing new products to market, Licensing your technology, Selling your patent, and Enforcing your patent. Conducting an IP audit is one way your SME may improve its position to capitalize on the potential benefits of its IP assets and extract their maximum worth. Professional IP auditors should ideally perform this, but a preliminary IP audit may be performed within your firm. This requires recognizing, monitoring, and valuing your SME's intellectual property assets to ensure that you are making the most of them. As a result, your SME will be able to make educated decisions about: 1) Purchasing intellectual property assets Knowledge of your enterprise's intellectual property and its worth can help you decide which types of IP rights to acquire and preserve, as well as how to best manage your SME's IP assets. The acquisition of essential intellectual property rights may have a significant impact on the value of your company. 2) Acquisitions and mergers  An IP audit can identify the entire company's IP portfolio and assist in determining the strengths and weaknesses of IP assets. This enables the organization to identify possible areas and opportunities for acquiring specific technologies. Once two viable targets have been discovered, the company can reduce the field and determine which of the companies is the ideal acquisition target in order to boost its competitiveness and keep competitors out of the market. A successful M&A transaction can significantly raise the value of your SMEs. Horizontal merger: Two companies that are in direct competition and share the same product lines and markets. Vertical merger: A customer and company or a supplier and company. Think of an ice cream maker merging with a cone supplier. Congeneric mergers: Two businesses that serve the same consumer base in different ways, such as a TV manufacturer and a cable company. Market-extension merger: Two companies that sell the same products in different markets. Product-extension merger: Two companies selling different but related products in the same market. Conglomeration: Two companies that have no common business areas. 3) Licensing By licensing out its intellectual property rights to a third party, an SME can boost its cash flow (revenue) and marketing power. An IP audit can help your SME determine the worth of your own IP so that you can get the most out of license agreements. The revenue generated there has the potential to increase the market worth of your SME. 4) Collateral A well-structured intellectual property portfolio can also be utilized as collateral. In such circumstances, lenders will use your IP assets to assess your SME's creditworthiness. 5) Enforceability Knowing the worth of your intellectual property assets will help your SME decide whether it is worthwhile to take action against infringement and how to proceed. 6) Cost-cutting measures A well-managed IP register would assist you in identifying outmoded IP assets (allowing you to reduce IP asset maintenance costs), avoiding infringing on other people's IP rights, and so on. This would surely result in cost savings. A career in Intellectual Property (IP) involves dealing with legal rights and protections for creations of the mind, such as inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Intellectual Property plays a vital role in safeguarding innovations and creations, fostering innovation, and encouraging economic growth. Careers in Intellectual Property 1. Patent Attorney/Agent: Patent attorneys and agents specialize in securing patents for new inventions and innovations. They work with inventors and companies to prepare and file patent applications, navigate the patent approval process, and enforce patent rights if necessary. 2. Trademark Attorney: Trademark attorneys handle legal matters related to the registration, protection, and enforcement of trademarks and service marks. They work to ensure that a company's brand names, logos, and slogans are adequately protected from unauthorized use. 3. Copyright Attorney: Copyright attorneys focus on issues related to protecting creative works, such as books, music, films, software, and other artistic expressions. They help clients register copyrights and enforce their rights against infringement. 4. IP Litigation Attorney: These lawyers specialize in intellectual property disputes and litigation. They represent clients in court to defend their IP rights or challenge the IP rights of others. 5. IP Consultant/Strategist: IP consultants assist businesses in developing strategies to protect and maximize the value of their intellectual property assets. They may conduct IP audits, provide guidance on licensing deals, and advise on IP portfolio management. 6. IP Analyst/Researcher: IP analysts conduct research to assess the validity and potential value of intellectual property. They evaluate patents and other IP assets, perform patent searches, and analyze IP trends in specific industries. 7. Technology Transfer Specialist: Technology transfer specialists work in universities, research institutions, or private companies to facilitate the transfer of technology and knowledge from research into commercial applications. They negotiate licensing agreements and manage IP-related contracts. 8. IP Manager/Director: IP managers oversee the management and protection of a company's intellectual property portfolio. They may develop IP strategies, handle IP-related transactions, and coordinate with legal teams to enforce IP rights. 9. Patent Examiner: Patent examiners work for government patent offices and assess patent applications to determine if they meet the criteria for granting patents. 10. IP Administrator: IP administrators support legal teams and assist in managing the administrative aspects of intellectual property, such as filing and maintaining applications and records. Theories of IPR 1. Utilitarian Theory: The utilitarian theory of IPR is based on the idea that granting exclusive rights to creators and inventors encourages innovation and creativity. By providing a temporary monopoly on their intellectual property, inventors and creators are incentivized to invest time, effort, and resources in developing new ideas and products that benefit society as a whole. The ultimate goal of this theory is to promote overall social welfare and progress. 2. Natural Rights Theory or Labour Theory: The natural rights theory posits that individuals have inherent rights to the fruits of their labor and intellect. In this context, intellectual property is seen as an extension of personal property, and creators have a natural right to control and benefit from the use of their creations. Proponents of this theory argue that intellectual property rights are a fundamental human right, independent of any utilitarian considerations. 3. Lockean Theory: The Lockean theory is a variation of the natural rights theory and is often cited in the context of patents. It is named after the philosopher John Locke, who argued that individuals acquire property rights by mixing their labor with natural resources. Applying this to patents, inventors acquire property rights to their inventions through the labor and effort they invest in developing new ideas. 4. Incentive Theory: The incentive theory is closely related to the utilitarian theory and focuses on the role of incentives in encouraging innovation. The premise is that granting exclusive rights incentivizes inventors and creators to disclose their inventions or creative works to the public in exchange for a limited period of protection. This disclosure fosters the spread of knowledge and contributes to technological advancement and cultural development. 5. Economic Justification: From an economic perspective, IPR is seen as a means to create and maintain a competitive market by ensuring that creators can profit from their innovations. By providing legal protection for their intellectual property, creators have the opportunity to attract investment and earn revenue, which, in turn, contributes to economic growth and development. 6. Cultural and Moral Justification: This theory emphasizes the importance of protecting intellectual property to preserve cultural heritage and encourage artistic expression. By providing creators with the means to control the use of their works, cultural diversity is safeguarded, and the creative process is promoted. 7. The Personhood Theory: This theory posits that proper self-development or personhood requires individuals to secure control over certain things, e.g. one’s home, residence, etc. in their external environment. The necessary assurances of control, take the form of property rights. The significance of someone’s attachment to things depends upon the labor poured by him and the pain caused by his loss. Therefore, an object is closely related to one's personhood when its loss causes pain that cannot be compensated or reinstated even by the replacement of that object. Hence, in such circumstances, that particular property is closely connected with the holder of that thing and he has the right to protect it. 8. Social Contract Theory: The concept of the social contract is that of an agreement between the ‘citizenry’ and its government, as opposed to the feudal concept of the divine right of kings. This social contract theory corresponds with the theory of natural rights. John Locke was an influential writer on social contracts and natural rights. Much information published in patents would not otherwise be disclosed in the absence of a patent grant. Without an opportunity for patenting, the inventor maintains secrecy. However, there is always a risk of losing secrecy on the part of the applicant, as he cannot recover lost secrecy if a patent is not granted. Society considers the invention as beneficial and therefore recognizes its significance and ensures its protection. Grant of the patent is considered a social contract between the society and the inventor, wherein an inventor shares his invention with the society and the society offers a monopoly in return 9. The Reward Theory This theory advocates that the grant of a monopoly is a reward for creative and inventive activities, such as literary works, designs, inventions & discoveries which are beneficial to society. The reward is aimed at promoting research and boosting overall development through the creation of new knowledge. The US Supreme Court in William T. Graham v. John Deere Co. of Kan City recalled Thomas Jefferson’s letter to Isaac McPherson, dated August 13, 1813, and while rejecting the theory of Natural Rights, it recognized the social and economic rationale of the patent system. The Court observed that “The patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge. The grant of an exclusive right to an invention was the creation of society at odds with the inherent free nature of disclosed ideas and was not to be freely given. Only inventions and discoveries which furthered human knowledge, and were new and useful, justified the special inducement of a limited private monopoly.” Patent law, therefore, provides a market-driven incentive to invest in R&D, by allowing the inventor to appropriate the full economic rewards of his invention, although for a stipulated limited period. 10. Incentive to Commercialize Theory The previous theories focus on the inventor, investor, and the inventive process. However, an invention without employment and commercial exploitation is practically no invention at all. For society to benefit from the invention, products must be manufactured and consumed. Those political societies with functioning patent systems are the most technologically advanced and the most prosperous. Prosperity and technological advancement cannot be separated, as the former follows the latter. An excellent invention may not be commercialized because of a lack of protection. Thus, the incentive to commercialize the invention can be considered the strongest argument for patents. The surety of a patent grant will encourage the enterprise to invest and bring the product into the market, without the risk of copying a successful product in the market and the risk of return on the costs of the invention. Therefore, it is proved that robust the Intellectual Property Mechanism, the higher the FDI; higher the FDI inflow, enhanced economic activity, trade, and commerce; higher the trade & commerce, increase in business, employment, and tax collection, and ultimately it may boost the economy of state & welfare of society. Therefore, commercial exploitation of creations and inventions is the route of economic development of the state, and hence, the state provides a strong Intellectual Property Mechanism and ensures higher commercial use of inventions, discoveries & creations. 11. Incentive to Disclose Theory The invention may be concealed due to fear of theft or use by others without paying a royalty to the inventor, and it may die with the demise of the inventor. The society may lose the benefits of invention and it may hamper technological development. Therefore, patent law requires the inventor to disclose the invention and in return, he is conferred with a monopoly right by the state. A patent grant offers an incentive to disclose the working of an invention, both as a protection to the patentee as to claims, and scope, the inventor is entitled to, but also as a means for others to benefit from the knowledge surrounding the invention. The information (know-how) of the invention is published by the patent office, which can be used by researchers for further research and technological development. It can also be used by the state in certain circumstances during the term of the patent and by private individuals after the expiry of the term. Such benefits would not have been possible unless the invention is disclosed by the inventor. The guarantee of protecting the rights of inventors to reap the benefits of such new knowledge through an enforcement mechanism encourages the inventor to disclose the correct information about the invention