Unit-1 Introduction to IPR

Introduction to IPRs
Property designates those things that are commonly recognized as being the possessions of an
individual or a group. A right of ownership is associated with property that establishes the good as
being "one's own thing" in relation to other individuals or groups, assuring the owner the right to
dispense with the property in a manner he or she deems fit, whether to use or not use, exclude others
from using, or to transfer ownership.
Properties are of two types - tangible property and intangible property i.e. one that is physically
present and the other which is not in any physical form. Building, land, house, cash, jewellery are
few examples of tangible properties which can be seen and felt physically.
On the other hand there is a kind of valuable property that cannot be felt physically as it does not
have a physical form. Intellectual property is one of the forms of intangible property which
commands a material value which can also be higher than the value of a tangible asset or property.

 Intellectual property is an intangible creation of the human mind, usually expressed or

translated into a tangible form that is assigned certain rights of property.
 Intellectual property (IP) refers to creations of the mind which includes inventions, literary
and artistic works, and symbols, names, images, and designs used in commerce.
 Examples of intellectual property include an author's copyright on a book or article, a
distinctive logo design representing a soft drink company and its products, unique design
elements of a web site, or a patent on the process to manufacture chewing gum.
 Intellectual property rights (IPRs) can be defined as the rights given to people over the
creation of their minds. They usually give the creator an exclusive right over the use of
his/her creations for a certain period of time.

Basic concepts of intellectual property

There are three basic terms that lead to intellectual property.
1. Invention is the process of devising and producing, by independent investigation,
experimentation and mental activity, something which is useful and which was not
previously known or existing. An invention involves such high order of mental activity
that the inventor is usually acclaimed even if the invention is not a commercial success.
Inventiveness is the form of creativity leading to invention.
2. Creativity is the ability to solve problems, create products or raise issues in a “domain”
(e.g. cooking, engineering, law, music) that is initially novel but is eventually accepted in
one or more cultural settings.
3. Innovation, which may or may not include invention, is the complex process of
introducing novel ideas into use or practice and includes entrepreneurship as an integral
part. Innovation is usually considered noteworthy only if it is a commercial success. Thus
society benefits from innovation, not from invention alone, and often there is a significant
lapse of time from invention to innovation.

Classification of Intellectual Property

Intellectual property is classified into two major branches:
1. Industrial Property includes patents for inventions, trademarks, industrial designs and
geographical indications.
2. Copyright law covers literary works (e.g., novels, poems and plays), films, music, artistic
works (e.g., drawings, paintings, photographs and sculptures) and architectural design.
Rights protected under Intellectual Property
The different types of Intellectual Property Rights are
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Sl. No Type of Intellectual Property Description
i) Patents Invention which is new, useful & non obvious
ii) Copyrights Expression of an Idea
iii) Trademarks Signs like Logo ,Symbol, Brand etc; used to
identify goods or services
iv) Industrial designs Pattern or Structure
v) Protection of Integrated Circuits layout Arrangement on a chip of semiconductor
design devices
vi) Geographical indications of goods Goods known for its geographic origin
vii) Biological diversity Seed development, monoculture,
microorganisms, and genetically modified
organisms
viii) Plant varieties and farmers rights Protection of new plant varieties
ix) Undisclosed information (Trade secret ) Innovation or Know How

Property

Tangible Intangible Property

Property (Intellectual Property)
Movable Immovable Industrial Copyright
property property Property law
Industrial Layout Neighbouring
Patents Trademarks Copyrights
designs designs rights
Product Process Performers Broadcasting
patent patent rights rights
Fig. Types of intellectual property rights

The term intellectual property is usually thought of as comprising of the following IPRs
 Patents
 Copyrights
 Geographical Indications
 Trademarks
 Trade secrets
 Industrial Design

The United Nations Universal Declaration of Human Rights recognizes intellectual property as a
fundamental human right.

Need for Intellectual Property rights

 Intellectual property plays an important role in an increasingly broad range of areas, ranging
from the Internet to healthcare to nearly all aspects of science and technology, literature and
arts.
 Creativity and innovation are the new drivers of the world economy. Intellectual property
protection is the key factor for economic growth and advancement in the high technology
sector.

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  The policies adopted by a country shall determine the nations well being and further as to
how it is developing the trapped intellectual capital. An effective intellectual property system
is the foundation of such a strategy.
 Within knowledge-based, innovation-driven economies, the intellectual property system is a
dynamic tool for wealth creation providing an incentive for enterprises and individuals to
create and innovate; a fertile setting for the development of, and trade in, intellectual assets;
and a stable environment for domestic and foreign investment.
 They are good for business, benefit the public at large and act as catalysts for technical
progress.
 Whether IPRs are a good or bad their disadvantages sometimes outweigh their advantages, by
and large the developed world has the national economic strength and established legal
mechanisms to overcome the problems so caused. So the developed world has the wealth and
infrastructure to take advantages of the opportunities provided.
 Patents benefit none other than the owner of the IP and add value to all industrial as well as
business concerns and laboratory discoveries and in doing so provide incentives for private
sector investment into their development.
 Globalization and the rapid proliferation of technology have elevated the importance of
intellectual property protection for small and medium sized enterprises (SMEs). The
intangible nature of intellectual property and the worldwide inconsistency of standard
practices create challenges for those businesses wishing to protect their inventions, brands,
and business methods in foreign markets.
 The Biotechnology Industry Organization advocates a strong and effective intellectual
property system. Strong intellectual property protection is essential to the success, and in
some instances to the survival, of the biotechnology companies in this country. For these
companies, the patent system serves to encourage development of new medicines and
diagnostics for treatment and monitoring intractable diseases, and agricultural products to
meet global needs.
 In the era of knowledge age or information age, the fundamental unit of most products and
services is information in one or another form. Websites run upon the cornerstone of
‘information’: in digital or non-digital form. In several cases such information is of
proprietary nature, hence, the investment in that information product, knowledge product or
the virtual product must be protected to encourage other similar initiatives. With increasing
worldwide access to electronic distribution, the damage caused by piracy to content
producers may completely destroy the value built in their intellectual property.
 The same context is valid in the case of companies who have earned consumer recognition
for their brand names and trade marks. A recognized brand name or trade mark represents the
goodwill that has been built into the product or service. Consumers tend to associate the
recognized brand name or trade mark with certain characteristics that are specific to that
name or mark. Therefore, companies should manage, protect and safeguard the investment in
the related intellectual property rights. Not only this, they should be vigilant if anyone else is
misusing or causing infringement of this Intellectual property.
 The root of intellectual property rights is to give credit where, and when, it is due. With the
emergence of the knowledge society and virtual products, the issue of safeguarding the
investment in the information-based products has certainly gained high importance. We, as
consumers or producers in the information chain, cannot afford to be ignorant about the
intellectual property rights! Thus protection of IPR has definite (tangible) benefits, such as to
propagate innovative culture, profitability, market leadership and helps creation of wealth for
the individual and the nation. India falling one among the developing countries have miles to
go, as it has a vulnerable collection of traditional, oral, folklore, customary, agricultural,
traditional medicinal like Ayurveda etc. and besides not having much wealth and
infrastructure.
Patents
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 Patent is a grant for an invention by the Government to the inventor in exchange for full
disclosure of the invention. A patent is an exclusive right granted by law to applicants / assignees to
make use of and exploit their inventions for a limited period of time (generally 20 years from filing).
The patent holder has the legal right to exclude others from commercially exploiting his/her
invention for the duration of this period. In return for exclusive rights, the applicant is obliged to
disclose the invention to the public in a manner that enables others, skilled in the art, to replicate the
invention. The patent system is designed to balance the interests of applicants / assignees (exclusive
rights) and the interests of society (disclosure of invention).
The Patent System in India is governed by the Patents Act, 1970 as amended by the Patents
(Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patents (Amendment) Rules
2006 effective from 05-05-2006.

Meaning of ‘Invention’ under Patent Law

Sec.2 (1)(J) - Invention” means a new product or process involving an inventive step and capable
of industrial application.

What is not an ‘Invention’?

According to Sec 3 of the Patent Act, 1970
• Frivolous inventions
• Inventions contrary to well established natural laws
• Commercial exploitation or primary use of inventions,
o which is contrary to public order or morality
o which causes serious prejudice to health or human, animal, plant life or to the
environment
• Mere Discovery of a Scientific Principle or
• Formulation of an Abstract Theory or
• Discovery of any living thing or
• Discovery of non–living substance occurring in nature
• Mere discovery of any new property or new use for a known substance or of the mere use of
a known process, machine or apparatus, unless such known process results in a new product
or employs at least one new reactant.
• Substance obtained by mere admixture resulting only in the aggregation of the properties of
the components thereof or a process for producing such substance.
• Mere arrangement or re-arrangement or duplication of known devices, each functioning
independently of one another in a known way
• Method of Agriculture or Horticulture
• Any process for medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other
treatment of human beings or a similar treatment of animals to render them free of disease or
to increase their economic value or that of their products.
• Plants & animals in whole or any part thereof other than micro- organisms, but including
seeds, varieties an d species and essentially biological process for production or propagation
of plants & animals
• mathematical method or
• business method or algorithms or
• computer programme
• A literary, dramatic, musical or artistic work or any other aesthetic creation including
cinematographic work and television productions
• Presentation of information
• Topography of integrated circuits.
• Inventions which are Traditional Knowledge or an aggregation or duplication of known
properties of traditionally known component or components
Meaning of “New”
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The invention to be patented must not be published in India or elsewhere, or in prior public
knowledge or prior public use with in India or claimed before in any specification in India A feature
of an invention that involves technical advance as compared to the existing knowledge or have
economic significance or both and makes the invention not obvious to a person skilled in the art.

What can be patented?

Any invention concerning with composition, construction or manufacture of a substance, of an
article or of an apparatus or an industrial type of process.
Patentable invention means a new product or process, involving an inventive step and capable
of being made or used in an industry. It means the invention to be patentable should be technical in
nature and should meet the following criteria –
• Novelty: The matter disclosed in the specification is not published in India or elsewhere before
the date of filing of the patent application in India.
• Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior
publication/knowledge/ document.
• Industrially applicable: Invention should possess utility, so that it can be made or used in an
industry.

What cannot be patented?

Inventions falling within Section 20(1) in Atomic Energy Act, 1962 cannot be patented.
As from the commencement of this Act, no patents shall be granted for inventions which in the
opinion of the Central Government are useful for or relate to the production, control, use or disposal
of atomic energy or the prospecting, mining, extraction, production, physical and chemical treatment,
fabrication, enrichment, canning or use of any prescribed substance or radioactive substance or the
ensuring of safety in atomic energy operations

Beneficiaries of the patent grant

1. The inventor is secure from competition and can exploit the invention for his gain.
2. For the public the invention becomes public knowledge. The technology is freely available
after expiry of patent and cheaper and better products become available.

Salient features of patent

The fundamental principle of patent law is that a patent is granted only for an invention which must
be new and useful. In other words it must have novelty and utility. It is essential for the validity of a
patent that it must be the investors own discovery as opposed to mere modification of what was
already known before the date of the patent.
The following propositions appear to be well-settled in relation to patents:
• The patent must be in respect of an invention and not a discovery.
• In respect of one single invention there must be one single patent.
• A Patent may be in respect of a substance or in respect of a process.
• In order to be patentable, the invention must be new, it must involve an inventive step and it
must be industrially applicable.

Kinds of patents
Generally, the patents can be classified into two types;
1. Process Patents and
2. Product Patents.
1. Process Patent: Process patent means that when a substance is invented or produced, a patent
is not granted to the substance itself but it is only the method or the process of manufacture of a
substance that is granted a patent. Therefore the Patent is granted to the process but not to the
product, in this kind of patent.

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 2. Product Patents: In Product Patents, the Patent is granted not to the method or process of
manufacture of a substance but to the substance itself. Therefore, in this kind of patent, it is the
product that is covered and protected.

Publicly disclosing your invention before you file a patent application may bar you from patent
rights in certain jurisdictions.

Copyrights
Copyright is the set of exclusive rights granted to the author or creator of an original work,
including the right to copy, distribute and adapt the work. Copyright lasts for a certain time period
after which the work is said to enter the public domain. Copyright gives protection for the expression
of an idea and not for the idea itself. For example, many authors write textbooks on physics covering
various aspects like mechanics, heat, optics etc. Even though these topics are covered in several
books by different authors, each author will have a copyright on the book written by him / her,
provided the book is not a copy of some other book published earlier.
Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, nocivilized
society can afford to ignore the basic requirement of encouraging the same. Economic and social
development of a society is dependent on creativity. The protection provided by copyright to the
efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound
recordings, cinematograph films and computer software, creates an atmosphere conducive to
creativity, which induces them to create more and motivates others to create.

Meaning of copyright
According to Section 14 of the Act, “copyright” means the exclusive right subject to the provisions
of this Act, to do or authorise the doing of any of the following acts in respect of a work or any
substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme,
(i) to reproduce the work in any material form including the storing of it in any medium by
electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in
relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of
the computer programme:
 Provided that such commercial rental does not apply in respect of computer
programmes where the programme itself is not the essential object of the rental.
(c) in the case of an artistic work,
(i) to reproduce the work in any material form including depiction in three dimensions of a
two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;

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 (vi) to do in relation to an adaptation of the work any of the acts specified in relation to the
work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film,
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether
such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless
of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.

Classes of works for which copyright protection is available

Indian Copyright Act affords separate and exclusive copyright protection to the following 7
clauses of work:
1. Original Literary Work
2. Original Dramatic Work
3. Original Musical Work
4. Original Artistic Work
5. Cinematograph Films
6. Sound recording
7. Computer Programme
Copyright will not subsist in any cinematograph film if a substantial part of the film is an
infringement of the copyright in any other work or in any sound recording made in respect of a
literary, dramatic or musical work, if in making the sound recording, copyright in such work has
been infringed. In case of work of architecture, copyright will subsist only in the artistic character
and design and will not extend to processes or methods of construction.

Ownership of Copyright
The author of the work will be the first owner of the copyright in the following instances:
i) In the case of a literary, dramatic or artistic work made by the author in the course of his
employment by the proprietor of a newspaper, magazine or similar periodical under a
contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine
or similar periodical, the said proprietor will, in the absence of any agreement to the contrary,
be the first owner of the copyright in the work in so far as the copyright relates to the
publication of the work in any newspaper, magazine or similar periodical, or to the
reproduction of the work for the purpose of its being so published, but in all other respects the
author will be the first owner of the copyright in the work.
ii) In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a
cinematograph film made, for valuable consideration at the instance of any person, such
person will, in the absence of any agreement to the contrary, be the first owner of the
copyright therein.
iii) In the case of a work made in the course of the author’s employment under a contract of
service or apprenticeship, the employer will, in the absence of any agreement to the contrary,
be the first owner of the copyright therein.
iv) In the case of any address or speech delivered in public, the person who has delivered such
address or speech or if such person has delivered such address or speech on behalf of any
other person, such other person will be the first owner of the copyright therein
notwithstanding that the person who delivers such address or speech, or, as the case may be,
the person on whose behalf such address or speech is delivered, is employed by any other

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 person who arranges such address or speech or on whose behalf or premises such address or
speech is delivered.
v) In the case of a government work, government in the absence of any agreement to the
contrary, will be the first owner of the copyright therein.
vi) In the case of a work made or first published by or under the direction or control of any
public undertaking, such public undertaking in the absence of any agreement to the contrary,
will be the first owner of the copyright therein.
vii) In case of any work which is made or first published by or under the directions or control of
any international organisation, such international organisation will be the first owner of the
copyright therein.

Assignment of copyright
Sec.18 of the Copyright Act, 1957 deals with assignment of copyright. The owner of the
copyright in an existing work or the prospective owner of the copyright in a future work may assign
to any person the copyright either wholly or partially and either generally or subject to limitations
and either for the whole term of the copyright or any part thereof. The mode of assignment should be
in the following manner:
• Assignment should be given in writing and signed by the assignor or by his duly authorized
agent.
• The assignment should identify the work and specify the rights assigned and the duration and
territorial extent of such assignment.
• The assignment should also specify the amount of royalty payable, if any, to the author or his
legal heirs during the currency of the assignment and the assignment may be subject to
revision, extension or termination on terms mutually agreed upon by the parties.
• Where the assignee does not exercise the rights assigned to him within a period of one year
from the date of assignment, the assignment in respect of such rights will be deemed to have
lapsed after the expiry of the said period unless otherwise specified in the assignment.
The period of assignment will be deemed to be 5 years from the date of assignment unless
specifically mentioned. If the territorial extent of assignment of the rights is not specified, it will be
presumed to extend within India. If any dispute arises with respect to the assignment of any
copyright the Copyright Board may, on receipt of a complaint from the aggrieved party and after
holding such inquiry as it considers necessary, pass such order as it may deem fit including an order
for the recovery of any royalty payable, provided that the Copyright Board may not pass any order to
revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor, in
case the assignor is also the author, provided further that no order of revocation of assignment, be
made within a period of five years from the date of such assignment.

Transmission of copyright by testamentary disposition

Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical
work, or to an artistic work, and the work was not published before the death of the testator, the
bequest can, unless the contrary intention is indicated in the testator's will or any codicil thereto, be
construed as including the copyright in the work in so far as the testator was the owner of the
copyright immediately before his death. Manuscript means the original document embodying the
work, whether written by hand or not.

Relinquish copyright
The author of a work can relinquish all or any of the rights comprised in the copyright in the
work by giving notice in Form I to the Registrar of Copyrights and thereupon such rights will cease
to exist from the date of the notice. On receipt of notice the Registrar of Copyrights will publish it in
the Official Gazette and in such other manner as he may deem fit. The relinquishment of all or any of
the rights comprised in the copyright in a work will not affect any rights subsisting in favour of any
person on the date of the notice given to the Registrar.
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Term of copyright
Section 22 to 29 of the Copyright Act, 1957 deals with the term of copyright. Copyright
generally lasts for a period of sixty years.
• In the case of literary, dramatic, musical or artistic works, the sixty year period is counted
from the year following the death of the author.
• In the case of cinematograph films, sound recordings, photographs, posthumous publications,
anonymous and pseudonymous publications, works of government and public undertakings
and works of international organisations, the 60-year period is counted from the date of
publication.
• In case of Broadcast reproduction right - 25 years from the beginning of the calendar year
next following the year in which the broadcast is made.
• In case of Performers right - 25 years from the beginning of the calendar year next following
the year in which the performance is made.

International Copyright
Copyrights of works of the countries mentioned in the International Copyright Order are
protected in India, as if such works are Indian works. Copyright of nationals of countries who are
members of the Berne Convention for the Protection of Literary and Artistic Works, Universal
Copyright Convention and the TRIPS Agreement are protected in India through the International
Copyright Order. The list of such countries is mentioned in the schedule of the International
Copyright Order, 1999.

Despite the continuing growth of the digital music business – with trade revenues up 12% to an
estimated US$4.2 billion in 2009 – illegal file-sharing and other forms of online piracy are eroding
investment and sales of local music in major markets.

Geographical Indications
Geographical Indications of Goods are defined as that aspect of industrial property which refers to
the geographical indication referring to a country or to a place situated therein as being the country
or place of origin of that product.

Features of Geographical Indication

• It is an indication
• It originates from a definite geographical territory.
• It is used to identify agricultural, natural or manufactured goods
• The manufactured goods should be produced or processed or prepared in that territory.
• It should have a special quality or reputation or other characteristics

Examples of Indian Geographical Indications: Solapur Chaddar, Solapur Terry Towel, Basmati
Rice, Darjeeling Tea, Kanchipuram Silk Saree, Alphanso Mango, Nagpur Orange.

The following geographical indications are prohibited from registration under section 9 of the act:
A geographical indication
1. the use of which would be likely to deceive or cause confusion;
2. the use of which would be contrary to any law for the time being in force ;
3. which comprises or contains scandalous or obscene matter;
4. which comprises or contains any matter likely to hurt the religious susceptibilities of any
class or citizens of India.
5. which would be disentitled to protection to protection in the court of law.

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 6. which are determined to be generic names or indications of goods and are, therefore, not or
ceased to be protected in their country of origin, or which have fallen into disuse in that
country;
7. which, although literally true as to the territory, region or locality in which the goods
originate, but falsely represent to the persons that the goods originate, but falsely represent to
the persons that the goods originate in another territory, region or locality, as the case may be,
shall not be registered as a geographical indication.
Section 18 of the act provides that the registration of a geographical indication shall be for a
period of 10 years and shall be renewed for a period of another 10 years on an application made in
the prescribed manner and within the prescribed period and subject to the payment of the prescribed
fees.

IPR in India and Abroad

Legislative Structure to protect IPRs in India
• IPR-related issues in India like patents, trademarks, copyrights, designs and geographical
indications are governed by the Patents Act 1970 and Patent Rules 2003, Trademarks Act
1999 and the Trademarks Rules 2002, Indian Copyrights Act, 1957, Design Act 2000 and
Rules 2001, and The Geographical Indications of Goods (Registration & Protection) Act,
1999 and The Geographical Indications of Goods (Registration & Protection) Rules 2002,
respectively.
• IPR plays a key role in almost every sector and has become a crucial factor for investment
decisions by many companies. All the above Acts and regulations are at par with
international standards. India is now TRIPS-compliant.
• TRIPS is an international agreement administered by the World Trade Organization (WTO),
which sets down minimum standards for many forms of intellectual property (IP) regulation
as applied to nationals of other WTO Members.
• The very well-balanced IPR regime in India acts as an incentive for foreign players to protect
their Intellectual Property in India. This can be established by the very fact that
approximately 80% of patent filings in India are from the MNCs.

Issues Related to IPR in India

• Lacks effective enforcement: While the IPR regime in India consists of robust IP laws, it
lacks effective enforcement, for which “least priority given to adjudication of IP matters” is
often quoted as a reason. The key challenge is to sensitize the enforcement officials and the
Judiciary to take up IP matters, at par with other economic offences, by bringing them under
their policy radar.
• Missing Think Tank: it is imperative that there be established a ‘Think Tank’ or a group,
which can bring the varied sets of stakeholders on to a common platform, leading to
extensive/exhaustive and an all inclusive debate/discussion, facilitating well-informed policy
decisions in accordance with India’s socio-economic-political needs.
• Compulsory Licensing: Compulsory licensing is when a government allows someone else to
produce a patented product or process without the consent of the patent owner or plans to use
the patent- protected invention itself.
• Patent evergreening: Evergreening is the term used for legal and technological alternatives
adopted by Pharmaceutical companies to extend their exclusivity of over production and sale
of patented medicines beyond the prescribed statutory timeline of 20 years. To address the
issue of evergreening, the Indian Parliament introduced Section 3(d) by way of 2005
Amendment to the Patents Act, 1970. Section 3(d) categorically excludes the derivatives,
salts (trivial tweaks) to the known compound as not being inventions under the Act. The
Supreme Court of India, in 2013, held Section 3(d) to be constitutionally valid
• The challenges also lie in having an IP fund, which can be utilized for further developing the
IP culture in the country
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Global Intellectual Property Trends
• With over 3 million applications filed per year, trademark protection is the most sought after
form of IP worldwide with growth rates of a similar magnitude as those for patents.
• In 2009, one quarter of all trademark applications were filed at the China Trademark Office.
When combined with the shares held by India, the Republic of Korea and Japan, these four
offices located in Asia accounted for 37 percent of total trademark applications. India showed
the highest five-year growth (13.5%) from 2005 to 2009, whereas China had one of the
highest annual growth rates (20.8%) from 2008 to 2009.
• In 2009, China accounted for 50 percent of total industrial design filing activity while
growing by 12.3 percent from 2008 to 2009. India was in the 9th place.
• In 2009, 1, 41, 943 trademark applications were filed, 34,287 patent applications were filed
and 6,092 Industrial designs applications were filed.

Genesis and Development

Origin of Intellectual Property Rights
The origin of intellectual property rights can be traced back to the ancient days when monopolies
existed in the Byzantine Empire83. Ancient Greece in the 7 th century BC granted monopoly to cooks
to exploit new recipes for one year. But a few centuries later, Emperor Zeno in Rome rejected the
concept of monopoly. Through a proclamation in 480 AD, Emperor Zeno ordered that no one should
exercise monopoly upon any garment or fish or any kind of thing. By 1432, the Senate of Venice
enacted a statute providing exclusive privileges to those inventing any machine or any process to
speed up the making of silk. This protection was soon extended to other devices. Any new idea thus
introduced started obtaining protection. The earliest of the legislations for the protection of
intellectual property rights was in the area of patents84. Thus, the origin of the intellectual property
rights has a link with European enlightenment. During that period people began to think that the
knowledge came from the human mind working upon the senses, rather than through divine
revelation, assisted by the study of ancient texts- that it became possible to imagine humans as
creators and hence owners of new ideas rather than as mere transmitters of eternal verities. Besides
being distinctively modern, intellectual property is a dense concept; woven together from at least
three complex strands of jurisprudence – copyright, patent and trademark- each with its own success
in premodern custom and law, and each with its own trajectory into our own era

Development of IPRs
As was mentioned early, IPRs are dynamic regulatory systems. In addition to TRIPS, two other
developments are affecting the evolution of IPR law at the international and national levels:
(1) new treaty development; and
(2) harmonization.
Taking the first development, since the TRIPS Agreement entered into force a number of new
multilateral IPR treaties have been negotiated and adopted. Harmonization of substantive IPR law is
coming about in two ways. The first is through bilateral treaties between developed and developing
countries which tend to require standards of protection to be on the same level as the developed
country party and with narrowed-down exceptions. The second is through international and bilateral
technical cooperation. There are concerns that such cooperation does not fully take into account the
development needs of beneficiary countries nor the flexibilities allowed to them under TRIPS.
Another emerging force for harmonization in the area of patent law is WIPO’s draft Substantive
Patent Law Treaty.
In sum, harmonization is likely to entail making the patent systems of the world more like
each other using those of the technologically most advanced countries as the models. The effects of
developments (1) and (2) overlap in the sense that both are raising the floor of minimum IPR
standards above the level of the TRIPS Agreement and are therefore ‘TRIPS plus’. The implications
for developing countries are two-fold. First, their options are being rapidly narrowed. Second,
because they have to be aware of related developments taking place in a wide range of forums and
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know where their national interest lies with respect to each one, the development of coherent,
effective and sustainable policies and negotiating strategies on IPRs is becoming harder than ever
before. Ensuring consistency between the positions adopted at the multilateral, regional and bilateral
levels, and with national IPR regulations is an enormous challenge and a tall order for any country.
In the case of developing countries and least developing countries, it might constitute an impossible
endeavour. Part 3 presents the various forums and agreements promoting the standardization and/or
harmonization of IPR rules throughout the world. These include WIPO conventions, regional treaties
and institutions, and regional and bilateral free trade agreements.

The way from WTO to WIPO

Establishment of WIPO
The roots of the World Intellectual Property Organization go back to 1883, when Johannes Brahms
was composing his third Symphony, Robert Louis Stevenson was writing Treasure Island, and John
and Emily Roebling were completing construction of New York’s Brooklyn Bridge.
The need for international protection of intellectual property became evident when foreign exhibitors
refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were
afraid their ideas would be stolen and exploited commercially in other countries.
1883 marked the birth of the Paris Convention for the Protection of Industrial Property, the first
major international treaty designed to help the people of one country obtain protection in other
countries for their intellectual creations in the form of industrial property rights, known as:
 inventions (patents)
 trademarks
 industrial designs
The Paris Convention entered into force in 1884 with 14 member States, which set up an
International Bureau to carry out administrative tasks, such as organizing meetings of the member
States.
In 1886, copyright entered the international arena with the Berne Convention for the Protection of
Literary and Artistic Works. The aim of this Convention was to help nationals of its member States
obtain international protection of their right to control, and receive payment for, the use of their
creative works such as:
 novels, short stories, poems, plays;
 songs, operas, musicals, sonatas; and
 drawings, paintings, sculptures, architectural works.
Like the Paris Convention, the Berne Convention set up an International Bureau to carry out
administrative tasks. In 1893, these two small bureaux united to form an international organization
called the United International Bureaux for the Protection of Intellectual Property (best known by its
French acronym BIRPI). Based in Berne, Switzerland, with a staff of seven, this small organization
was the predecessor of the World Intellectual Property Organization of today - a dynamic entity with
184 member States, a staff that now numbers some 938, from 95 countries around the world, and
with a mission and a mandate that are constantly growing.
As the importance of intellectual property grew, the structure and form of the Organization changed
as well. In 1960, BIRPI moved from Berne to Geneva to be closer to the United Nations and other
international organizations in that city. A decade later, following the entry into force of the
Convention Establishing the World Intellectual Property Organization, BIRPI became WIPO,
undergoing structural and administrative reforms and acquiring a secretariat answerable to the
member States.
In 1974, WIPO became a specialized agency of the United Nations system of organizations, with a
mandate to administer intellectual property matters recognized by the member States of the UN.
In 1978, the WIPO Secretariat moved into the headquarters building that has now become a Geneva
landmark, with spectacular views of the surrounding Swiss and French countryside.

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WIPO expanded its role and further demonstrated the importance of intellectual property rights in the
management of globalized trade in 1996 by entering into a cooperation agreement with the World
Trade Organization (WTO).
The impetus that led to the Paris and Berne Conventions - the desire to promote creativity by
protecting the works of the mind - has continued to power the work of the Organization, and its
predecessor, for some 120 years. But the scope of the protection and the services provided have
developed and expanded radically during that time.
In 1898, BIRPI administered only four international treaties. Today its successor, WIPO, administers
24 treaties (three of those jointly with other international organizations) and carries out a rich and
varied program of work, through its member States and secretariat, that seeks to:
 harmonize national intellectual property legislation and procedures,
 provide services for international applications for industrial property rights,
 exchange intellectual property information,
 provide legal and technical assistance to developing and other countries,
 facilitate the resolution of private intellectual property disputes, and
 marshal information technology as a tool for storing, accessing, and using valuable
intellectual property information.
The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations.
It is dedicated to developing a balanced and accessible international intellectual property (IP) system,
which rewards creativity, stimulates innovation and contributes to economic development while
safeguarding the public interest.
WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to
promote the protection of IP throughout the world through cooperation among states and in
collaboration with other international organizations. Its headquarters are in Geneva, Switzerland. The
Director General is Francis Gurry.

IP protection –WTO & WIPO

 A streamlined and efficient patent protection, in addition to the industry’s maturing
relationship with capital markets is the hallmarks of a country’s global leadership.
 In contrast, most developing countries do not have strong IPR regimes and suffer negative
effects of “brain drain”. The reason being, lack of effective copyright laws, which force
scientists and technicians to immigrate to countries, where competitors protect their research
from unfair exploitation.
 The World Trade Organization (WTO) is the only global international organization dealing
with the rules of trade between nations. At its heart are the WTO agreements, negotiated and
signed by the bulk of the world’s trading nations and ratified in their parliaments. The goal is
to help producers of goods and services, exporters, and importers conduct their business.
 The World Trade Organization (WTO) is the only international organization dealing with the
global rules of trade between nations. Its main function is to ensure that trade flows as
smoothly, predictably and freely as possible.

WTO - features
Location : Geneva, Switzerland
Established : 1 January 1995
Created by : Uruguay Round negotiations (1986-94)
Membership : 149 countries (on 11 December 2005)
Budget : 175 million Swiss francs for 2006
Secretariat staff : 635
Head : Pascal Lamy (Director-General)

Functions
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  Administering WTO trade agreements
 Forum for trade negotiations
 Handling trade disputes
 Monitoring national trade policies
 Technical assistance and training for developing countries
 Cooperation with other international organizations

The 10 benefits of WTO

1. The system helps promote peace
2. Disputes are handled constructively
3. Rules make life easier for all
4. Freer trade cuts the costs of living
5. It provides more choice of products and qualities
6. Trade raises incomes
7. Trade stimulates economic growth
8. The basic principles make life more efficient
9. Governments are shielded from lobbying
10. The system encourages good government

 The World Intellectual Property Organization (WIPO) is an international organization

dedicated to promoting the use and protection of works of the human spirit. These works —
intellectual property — are expanding the bounds of science and technology and enriching
the world of the arts. Through its work, WIPO plays an important role in enhancing the
quality and enjoyment of life, as well as creating real wealth for nations.
 With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the
United Nations system of organizations. It administers 23 international treaties dealing with
different aspects of intellectual property protection. The Organization counts 183 nations as.
Please visit the links below for more information both general and specific — on WIPO.

Features of WIPO
Status : An intergovernmental organization
Member States : 183
Staff : 915 from 94 countries
Treaties Administered: 23
Guiding Principles:
 Transparency
 Accountability
 Consensus
 To promote the protection of intellectual property throughout the world through co-operation
among States and, were appropriate, in collaboration with any other international
organization
 To ensure administrative co-operation among the intellectual property Unions, that is, the
“Unions” created by the Paris and Berne Conventions and several subtreaties concluded by
members of the Paris Union.
 Promotion of intellectual property protection worldwide
 Promotion of creative and intellectual activity
 Facilitation of technology transfer and dissemination of literary and artistic works
 Modernization and strengthening of administrative systems

WTO – WIPO cooperation agreement

Sl. No Article Purpose
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 1 Article 1 Convention, Standards and Emblem accepted
2 Article 2 Laws and Regulations
3 Article 3 Implementation of article 6 ter of Paris convention for the purpose of TRIPS
agreement.
4 Article 4 Legal-Technical assistance and Technical cooperation
5 Article 5 Final clause-Entry into force, amendment of this agreement

How WIPO Works

The terms governing WIPO’s mandate, functions, finances and procedures are set out in the WIPO
Convention.

Member States
WIPO’s Member States determine the strategic direction and activities of the Organization. They
meet in the Assemblies, committees and working groups.
There are currently 184 Member States, i.e. over 90 percent of the countries of the world.

Secretariat
The WIPO Secretariat, or International Bureau, is based in Geneva. WIPO staff, drawn from more
than 90 countries, include experts in diverse areas of IP law and practice, as well as specialists in
public policy, economics, administration and IT.
The respective divisions of the Secretariat are responsible for coordinating the meetings of Member
States and implementing their decisions; for administering the international IP registration systems;
for developing and executing the programs designed to achieve WIPO’s goals; and for providing a
repository of IP expertise to assist its members.

Core Tasks of WIPO

WIPO’s activities are conducted within the strategic framework set out in the biennial Program and
Budget document and are driven by demand from Member States. They fall broadly into the
following areas.
Developing international IP laws and standards
 WIPO is responsible for promoting the progressive development and harmonization of IP
legislation, standards and procedures among its Member States. This includes further
development of international laws and treaties regarding patents; trademarks, industrial
designs and geographical indications; and copyright and related rights.
 WIPO is also working with Member States to explore IP issues in the area of traditional
knowledge, traditional cultural expressions and genetic resources.
 WIPO handles the administration of 24 international treaties (16 on industrial property; 7 on
copyright; plus the convention creating WIPO).

Delivering global IP protection services

 WIPO administers fee-based services, based on international agreements, which enable users
in member countries to file international applications for patents (PCT), and international
registrations for trademarks (Madrid system), designs (Hague System), and appellations of
origin (Lisbon System).
 WIPO administers four IP classification systems, which organize the mass of information
concerning inventions, trademarks, and industrial designs into indexed, manageable
structures for easy retrieval.
 WIPO’s Arbitration and Mediation Center offers dispute resolution services to businesses and
individuals, including in the growth area of Internet domain name disputes.
 Encouraging the use of IP for economic development
 WIPO runs a range of programs aimed at increasing the effective use of IP by developing
nations as a tool for economic development. Programs include technical assistance in support
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 of member countries’ initiatives to improve their IP legislative, institutional and human
resources framework; strategies for innovation promotion and IP exploitation; economic
studies and material to inform public policy choices.

Promoting better understanding of IP

WIPO creates and disseminates a wealth of public outreach material. This aims to encourage
creativity and innovation; and to increase understanding of how to protect and benefit from the
resulting IP. Seminars and information products also target specific groups, such as creators, small
and medium-sized enterprises, research institutions and policymakers. Other awareness-raising
activities contribute to Member States’ efforts in the area of enforcement of IP rights.

Providing a forum for debate

WIPO meetings regularly bring together stakeholders from governments, rights-holders’ groups and
civil society in order to facilitate constructive debate on current challenges. WIPO also commissions
and publishes studies on emerging issues.

GATT
The General Agreement on Trade and Tariff (GATT) was set up on October 30, 1947 in Geneva with
23 countries as its founder members, and India was one of them. It was originally set up as a
temporary arrangement to bring about trade liberalisation. India has always been an active champion
of multilateral trade negotiations. GATT later became an important and permanent set-up to attend to
all trade issues among member countries. Its membership also got enlarged to practically all the
members of the United Nations, except the communist countries and East European countries.

Objectives of GATT
The broad aim of GATT has been to reduce the trade restrictions put up by individual nations in
pursuit of their narrow national interests. The goal was to achieve through multilateral negotiations,
settling of all trade disputes through a set of rules and regulations evolved by GATT for its members.
The other objective was to aim at tariff concessions for exports and imports among the countries,
with a view to aim at developing the full use of the resources of the world and expanding trade.
GATT always permitted exception to its general rules, which require the eventual elimination of all
import restrictions. It was always subject to safeguards intended to protect legitimate interests of
other trading nations. The most important exceptions given by GATT were the special protection
given to agriculture by most nations and allow many import restrictions to protect the farmers. Their
rules also made import restrictions to protect the farmers. Their rules also made exceptions in the
case of countries, which were in ‘balance of payments’ difficulties.

Work done by the GATT

 From 1947 to 1967, GATT sponsored six rounds of multilateral trade negotiations mainly
with a view to bring down the trade barriers by persuading countries to bring down their
import levies with a view to greater exchange of goods and more trade flow. The sixth round
brought the weighted average tariff of major trading nations to be reduced by 2% on raw
materials and 7.7% on industrial products.
 GATT played a prominent role in the settlement of trade disputes between two countries.
GATT played a useful role between 1947 and 1973. But in the seventies there were many
changes, which occurred in the world economy. The fixed system exchange rate was moving
towards a floating system of exchange parity. The oil prices quadrupled in 1973, and
threatened to increase further. There was a worldwide economic recession in 1974-75. Many
of the developing countries had diversified their export base, and were becoming competitors
to developed countries.
 In 1974, the next round of multilateral negotiations were commenced by GATT, and it was
concluded in 1979 at Tokyo, and was referred to as ‘Tokyo round of negotiations.’ Here
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 tariffs were lowered by 27% to an average level of 5%. Certain non-tariff barrier agreements
and codes were also agreed to.
 An eighth round of trade negotiations under the auspices of GATT was launched in the mid
eighties. This was known as Uruguay Round. Apart from the usual exercise to bring down the
trade barriers, it also attempted to draft trading rules to cover four major sectors, not
previously regulated. These were agriculture, services, investment, and intellectual property
rights (patents, trademarks copyrights etc). It was also decided that an institutional framework
was to be given to GATT, and thus was born World Trade Organisation (WTO which was to
replace GATT as an apex trade policy body.
 The discussions, many times very vociferous, continued for eight long years. Many of the
developing countries put forward their view strongly to protect their economies, and in the
Intellectual Property Rights discussion India played a prominent part and changing many of
the original stringent changeover for the developing countries. It also protected the age old
traditions of the farmers to have the right to their own seed protection and various other
clauses which may have a bearing on our agriculture.
 The discussions dragged on and ultimately a deadline was given that it should be completed
at a conference in Morocco and the new organisation – WTO – should come into existence on
1st January 1995. Accordingly all the countries who are members of the GATT signed the
WTO agreement and lodged the instrument of ratification on January 1, 1995.

TRIPS
The Agreement on Trade related Aspects of Intellectual Property Rights of the WTO is commonly
known as the TRIPS Agreement or simply TRIPS. TRIPS is one of the main agreements comprising
the World Trade Organisation (WTO) Agreement. This Agreement was negotiated as part of the
eighth round of multilateral trade negotiations in the period 1986-94 under General Agreement on
Tariffs and Trade (GATT) commonly referred to as the Uruguay Round extending from 1986 to
1994. It appears as Annex 1 C of the Marrakesh Agreement which is the name for the main WTO
Agreement. The Uruguay Round introduced intellectual property rights into the multilateral trading
system for the first time through a set of comprehensive disciplines. The TRIPS Agreement is part of
the “single undertaking” resulting from the Uruguay Round negotiations. This implies that the
TRIPS Agreement applies to all WTO members, mandatorily. It also means that the provisions of the
agreement are subject to WTO dispute settlement mechanism which is contained in the Dispute
Settlement Understanding (the “Understanding on Rules and Procedures Governing the Settlement of
Disputes”). The TRIPS Agreement is one of the most important agreements of the WTO.

Features
The three important features of the Agreement are:
Standards
In respect of each of the areas of IP covered by the Agreement, each of the member nations is
obliged to provide a minimum set of standards for protecting the respective IPR. Under each of the
areas of IP covered by the Agreement, the main elements of protection are defined, namely the
subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights,
and the minimum duration of protection.

Enforcement
Each member nation is obliged to provide domestic procedures and remedies with respect to
protection of IPR. The Agreement lays down certain general principles applicable to all IPR
enforcement procedures. The Agreement also lays down certain other provisions on civil and
administrative procedures and remedies, special requirements related to border measures and
criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that
must be available so that right holders can effectively enforce their rights.

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Dispute Settlement
Under the Agreement disputes between WTO member nations regarding the respect of the
TRIPS obligations are subject to the WTO’s dispute settlement procedures.

Structure of the TRIPS agreement

The Agreement is a seven-part document containing complex provisions with respect to
Intellectual Property rights. Following is a brief description of the structure of the Agreement:
 Part I: The general provisions and the basic principles of National Treatment and Most
Favoured Nation are covered under this part. (Article1 to Article8)
 Part II: The standards concerning availability, scope and use of Intellectual Property Rights is
covered under this part. (Article9 to Article40)
 Part III: This part deals with the enforcement of IPRs. (Article41 to Article61)
 Part IV: This part addresses the provisions for acquiring and maintaining IPR. (Article62)
 Part V: This part deals with prevention and settlement of disputes arising out of the
provisions of the Agreement. (Article63 to Artcile64)
 Part VI: Part VI is concerned with transitional agreements. (Article65 to Article67)
 Part VII: This part of the Agreement concerns various institutional agreements. (Article68 to
Article73)

General Provisions and Basic Principles

Article 1 of the agreement provides for the member nations to implement the provisions of the
agreement in such way as member nations deem appropriate, that is to say, the standards of
provisions of this agreement are a ‘minimum’ which is to be maintained at the ground level and the
nations can further invoke an extensive protection domestically. An IPR acquired in one country
cannot be enforced in another country. The minimum standard maintenance and basic enforcement
standards enshrined in the TRIPS Agreement make it flexible for member nations to one, enforce the
aforementioned basic standards; two, implement higher levels of protection domestically thus
leaving the Members to have ‘TRIPS plus’ laws and regulations. These higher standards are now
making appearance on the world trade timeline as Free Trade Agreements (FTA) entered into
between trading partner nations. However, since these agreements establish standards much higher
than those of the TRIPS Agreement, they may take away the flexibilities which exist in the
Agreement. Articles 3 and 4 constitute the fundamental principles of the agreement.
Article 3 deals with National Treatment commitment. It reads as following:
1. Each Member shall accord to the nationals of other Members treatment no less favourable
than that it accords to its own nationals with regard to the protection of intellectual property,
subject to the exceptions already provided in, respectively, the Paris Convention (1967), the
Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in
Respect of Integrated Circuits. In respect of performers, producers of phonograms and
broadcasting organizations, this obligation only applies in respect of the rights provided
under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of
the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall
make a notification as foreseen in those provisions to the Council for TRIPS.
2. Members may avail themselves of the exceptions permitted under paragraph 1 in relation to
judicial and administrative procedures, including the designation of an address for service or
the appointment of an agent within the jurisdiction of a Member, only where such exceptions
are necessary to secure compliance with laws and regulations which are not inconsistent with
the provisions of this Agreement and where such practices are not applied in a manner which
would constitute a disguised restriction on trade.”
This article calls for the member nations to accord such treatment to the nationals of other
member nations as the former would grant to its own nationals with regard to protection of
Intellectual Property Rights. This article also recognises certain exceptions already provided in the

18
Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on
Intellectual Property in Respect of Integrated Circuits.
Article 4 deals with Most Favoured Nation Treatment. It reads as follows:
“With regard to the protection of intellectual property, any advantage, favour, privilege or immunity
granted by a Member to the nationals of any other country shall be accorded immediately and
unconditionally to the nationals of all other Members. Exempted from this obligation are any
advantage, favour, privilege or immunity accorded by a Member:
(a) deriving from international agreements on judicial assistance or law enforcement of a
general nature and not particularly confined to the protection of intellectual property;
(b) granted in accordance with the provisions of the Berne Convention (1971) or the
Rome Convention authorizing that the treatment accorded be a function not of
national treatment but of the treatment accorded in another country;
(c) in respect of the rights of performers, producers of phonograms and broadcasting
organizations not provided under this Agreement;
(d) deriving from international agreements related to the protection of intellectual
property which entered into force prior to the entry into force of the WTO Agreement,
provided that such agreements are notified to the Council for TRIPS and do not
constitute an arbitrary or unjustifiable discrimination against nationals of other
Members.”
According to this article, any advantage, favour, privilege or immunity accorded to the
nationals of one member nation by another member nation shall automatically be accorded to all the
other member nations except for the exceptions mentioned above from sub-clause (a) to (d).

TRIPS agreement and india

India became a party to the TRIPS Agreement in April 1995. The Patent Act of 1970 was in
contravention with the Article 27 of the Agreement. Hence India needed to take some measures to
make its IPR laws compliant with the Agreement. The Agreement provided a three stage framework
for developing countries like India which did not allow product patents in the areas of
pharmaceuticals and agricultural chemicals before the Agreement came into force. These three stages
included:
Introduction of Mail-Box facility from 1st January, 1995 for product patent applications in
the field of pharmaceuticals and agricultural chemicals. These Mail-Box applications were not
examined till the end of 2004. But Exclusive Marketing Rights (EMR) could be granted for the Mail-
Box applications for which a patent had been granted in at least one member nations and the
application was not rejected in the member nation where IPpro Services (India) P. Ltd. 16 the patent
protect was sought by the applicant for the reason of invention being not patentable.
Compliance with the other obligations of the Agreement such as, rights of patentee, term of
protection, compulsory licensing, etc. from 1st January, 2000.
Full implementation of product patents in all technological domains including
pharmaceuticals and agricultural chemicals with effect from 1st January, 2005. Also, all Mail-Box
applications were to be taken for examination from 1st January, 2005. Thus the Agreement came into
force in India from 1st January, 2005.
The Agreement changed the face of the IP regime in the world. Many developing countries,
including India, which had weaker IPR systems (for example, patents) had to extensively revise their
patent laws, or where there were no IPR regimes (the most important examples being plant variety
protection, layout designs and geographical indications) had to put in place new IPR systems. The
implications of the Agreement have their own pros and cons. On the positive side, with the revision
of patent laws, a stronger patent protection system came into existence which is of international
standards, because of which the foreign investors were encouraged to invest in India. It may be
expected that while domestic investment may not respond to a stronger patent regime in a big way in
either the short or long term, Foreign Direct Investment (FDI) might. Further, the research and

19
development expenditures of the domestic players tremendously increased in post Agreement period
as compared to the pre Agreement period.
The other positive implication of a technological nature is the availability of better products
which might not have been available with weaker IPR protection. However, the prices of these better
and patented products may not be affordable for majority of population. Domestic private sector
investment and foreign investment in the seeds sector has risen. The post Agreement environment
has encouraged domestic private sector IPpro Services (India) P. Ltd. and foreign firms to invest in
research and development for the development of better seeds. Some of the geographical indications
belonging to India which are of importance for domestic industry have got protection and have
encouraged investment in these sectors, for example, Darjeeling Tea. On the negative side, the most
immediate impact of post Agreement may be seen on prices of drugs. The new and required drugs
will have product patent protection unlike the earlier scenario and so the prices might escalate.

IPRs covered under TRIPS

The IPRs covered by the TRIPS Agreement are:
• Copyright and related rights (i.e. the rights of performers, producers of sound recordings and
broadcasting organizations)
• Trademarks, including service marks
• Geographical indications including appellations of origin
• Industrial designs
• Patents including the protection of new varieties of plants
• Layout-designs (topographies) of integrated circuits
• Undisclosed information, including trade secrets and test data.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of intellectual
properties may serve to identify intellectual properties from other types of properties.

1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it an issue? Because
intellectual property rights have one characteristic which other national rights do not have. In
ownership of intellectual property of immovable properties, issues of cross borders are not probable.
But in intellectual properties, it is common. A film made in Hollywood can be seen in other
countries. The market is not only the local one but also international. If a design in China is imitated
by another person in France which law would be applicable?

2. Giving an exclusive right to the owner

It means others, who are not owners, are prohibited from using the right. Most intellectual property
rights cannot be implemented in practice as soon as the owner got exclusive rights. Most of them
need to be tested by some public laws. The creator or author of an intellectual property enjoys rights
inherent in his work to the exclusion of anybody else.

3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy
between intellectual property rights and the material object in which the work is embodied.
Intellectual property can be bought, sold, or licensed or hired or attached.

4. Independence
Different intellectual property rights subsist in the same kind of object. Most intellectual property
rights are likely to be embodied in objects.
5. Subject to Public Policy

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They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to
preserve and find adequate reconciliation between two competing interests. On the one hand, the
intellectual property rights holders require adequate remuneration and on the other hand, consumers
try to consume works without much inconvenience.

6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single original work without
affecting the interest of other right holders on that same item. Because of the nature of indivisibility,
intellectual property is an inexhaustible resource. This nature of intellectual property derives from
intellectual property’s territorial nature. For example, an inventor who registered his invention in
Ethiopia can use the patent himself in Ethiopia and License it in Germany and assign it in France.
Also, copyright is made up of different rights. Those rights may be divided into different persons:
publishers, adaptors, translators, etc.

Industrial Property
The broad application of the term “industrial property” is set out in the Paris Convention. Industrial
property takes a range of forms, the main types of which are outlined here. These include
• Patents for inventions,
• Industrial designs (aesthetic creations related to the appearance of industrial products),
• Trademarks and Service marks,
• Layout-designs of integrated circuits, commercial names and designations,
• Geographical indications and
• Protection against unfair competition.

Industrial designs are applied to a wide variety of industrial products and handicrafts. They refer to
the ornamental or aesthetic aspects of an article, including compositions of lines or colours or any
three-dimensional forms that give a special appearance to a product or handicraft. The design must
have aesthetic appeal. Moreover, it must be able to be reproduced by industrial means; this is the
essential purpose of the design and the reason the design is called “industrial”. In a legal sense, an
industrial design refers to the right granted in many countries, pursuant to a registration system, to
protect the original, ornamental and non-functional features of a product resulting from design
activity. Aesthetic appeal is one of the main factors influencing consumers in their product choice.
Where the technical performance of a product offered by different manufacturers is relatively
similar, consumers will make their selection based on price and aesthetic appeal.

Crocs USA filed cases against shoe manufacturers alleging infringement of their design which is
related to perforated and non-perforated shoe design.

Layout-designs of integrated circuits

Although prefabricated components of electrical circuitry have been used in the manufacture of
electrical equipment (such as radios) for some time, large-scale integration of a multitude of
electrical functions in a very small component became possible as a result of advances in
semiconductor technology. Integrated circuits are manufactured in accordance with very detailed
plans or layout-designs. The layout-designs of integrated circuits are creations of the human mind.
They are usually the result of vast investment, in terms both of expertise and financial resources.
There is a continuing need for the creation of new layout-designs that simultaneously reduce the
dimensions of existing integrated circuits and increase their functions. The smaller an integrated
circuit, the less material is needed for its manufacture, and the smaller the space needed to
accommodate it. Integrated circuits are used in a wide range of products, including articles of
everyday use such as watches, televisions, washing machines and cars, as well as sophisticated
computers and servers.
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Trade marks
A trademark is a sign, or a combination of signs, that distinguishes the goods or services of one
company from those of another. Such signs may use words, letters, numerals, pictures, shapes and
colours, or any combination thereof. An increasing number of countries also allow for the
registration of less traditional forms of trademarks, such as three-dimensional signs, (like the Coca-
Cola bottle), audible signs (sounds such as the roar of the lion at the beginning of films produced by
MGM), or olfactory signs (such as the smell of a particular type of motor oil or embroidery yarn).
However, many countries have set limits on what may be registered as a trademark, generally
allowing only signs that are visually perceptible or can be represented graphically. Trademarks are
used on goods or in connection with the marketing of goods or services. The trademark may appear
not only on the goods themselves but also on the container or packaging in which the goods are
marketed. When used in connection with the sale of goods or services, the sign may appear in
advertisements, for example, in newspapers, on television or in shop windows.
In addition to trademarks identifying the commercial source of goods or services, several other
categories of marks exist.
• Collective marks are owned by an association, such as an association representing
accountants or engineers, whose members use the mark to identify them with a particular
level of quality and other requirements set by the association.
• Certification marks, such as the Woolmark, are given for compliance with defined standards,
but are not confined to any membership of an association.
• A trademark used in connection with services is called a service mark. Service marks are
used, for example, by hotels, restaurants, airlines, tourist agencies, car-rental agencies,
laundries and cleaners. All that has been said about trademarks also applies to service marks.

Trade Names
Another category of industrial property covers commercial names and designations. A commercial or
trade name is the name or designation that identifies a company. In most countries, trade names may
be registered with a government authority. However, under Article 8 of the Paris Convention, a trade
name must be protected without the obligation of filing or registration, whether or not it forms part of
a trademark. Protection generally means that the trade name of one company may not be used by
another company, either as a trade name or a trade or service mark – and that a name or designation
similar to the trade name may not be used by another company if it is likely to mislead the public.

Trade Secret
A trade secret is any information of commercial value concerning production or sales operations
which is not generally known. The owner of a trade secret must take reasonable measures to
maintain its confidentiality.

Protection against Unfair Competition

Article 10b is of the Paris Convention requires member countries to provide for protection against
unfair competition. According to this article, the following acts of competition are considered
contrary to honest trade and industry practices:
• all acts of such a nature as to create confusion with the establishment, the goods or the
industrial or commercial activities of a competitor;
• false allegations in the course of trade of such a nature as to discredit the establishment, the
goods or the industrial or commercial activities of a competitor; and
• indications or allegations, the use of which in the course of trade are liable to mislead the
public as to the characteristics of certain goods.
Protection against unfair competition supplements the protection of inventions, industrial designs,
trademarks and geographical indications. It is particularly important for the protection of knowledge,

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technology or information that is not protected by a patent but that may be required in order to make
best use of a patented invention.

Technological Research
Research and Development (R&D) is an important contributor to economy of any country
and hence growth and sustainability of R&D vital for nations. As the pace of technology is
accelerating and newer technologies and processes are becoming important, R&D is becoming a
crucial factor in success of the companies and economies in a globalised and competitive world.
IPR plays a key role in sustainable R&D and has become a crucial factor for investment
decisions by many companies. The IPR Acts and regulations in India are at par with international
standards. India is now TRIPS (Trade Related Aspects of Intellectual Property Rights) compliant
which is an international agreement administered by the World Trade Organization (WTO) that sets
down minimum standards for many forms of intellectual property (IP) regulations as applied to the
nationals of other WTO Members. The very well-balanced IPR regime in India acts as an incentive
for foreign players to protect their Intellectual Property in India.

Important examples of IPR

Patents
• Goldenchart Co was granted patent No. 198592 in respect of an asset management advice
system. Although the invention is basically a business method, presentation of it as an asset
management advice system was acceptable to the Patent Office.
• Siemens was granted patent No. 195440 in respect of a method for testing system
components of an object-oriented program.
• Philips Electronics was granted patent No. 194663 in respect of an interactive entertainment
apparatus operable to output sequences of image frames. Although computer programs per se
are not patentable in India, the above claim was allowed as it is directed to an interactive
entertainment apparatus.

Copyrights
An example of the copyright notice given by Propane education and research council is shown
below.

Trademarks

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Geographical indications

Industrial designs

Trade secrets
Huawei worked for years to steal T-Mobile's proprietary phone testing technology, known as
"Tappy." Employees were allegedly asked to send information such as photos, measurements and the
serial numbers of various components.
The United States has filed criminal charges against Huawei, for trying to steal trade secrets from
T-Mobile (TMUS), and of promising bonuses to employees who collected confidential information
on competitors.

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