Overview of Intellectual
Property Rights and Their Role
in Technology Transfer
T.C. James
Director
National Intellectual Property
Organisation
Objective
To present
• General introduction to the concept of
IPRs
• Different Kinds of IPRs
• Role of IPRs in Technology Transfer
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INTRODUCTION TO INTELLECTUAL
PROPERTY RIGHTS
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Intellectual Property Right
• Right
• A thing one may legally or morally claim
• The state of being entitled to a privilege,
immunity or authority to act.
E.g. Fundamental Rights; Right to Natural Justice
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Intellectual Property Right
•
•
•
•
Property
Something owned
Right to Possession, Use, etc.
Two Important Features
Owner of the Property May Use it as He wishes
Nobody else can lawfully use his Property without
his authorization
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Intellectual Property Right
• Intellectual
• Relating to the Intellect
• Intangible
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Kinds of Property
• Movable Property
E.g. Car, Pen, Furniture, Dress
• Immovable Property
E.G. Land, Building
• Intellectual Property
Creations of the Human Mind/Intellect
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Scope of IPRs - 1
• Rights relating to
Literary, Artistic and Scientific Works
Performances of performing artists, phonograms,
and Broadcasts
Inventions in all fields of human endeavour
Scientific Discoveries
Industrial Designs
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Scope of IPRs - 2
Trademarks, Service marks and Commercial
Names and Designations
Protection Against Unfair Competition
And all Other Rights resulting from Intellectual
Activity in the Industrial, Scientific, Literary or
Artistic Fields.
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Some Mythology, Some History 1
• Eklavya Story from the Mahabharat
• 1407: Venice Patent Law
• Saint Columba, Abbot Finnian and King
Dermont
• “To every cow her calf and consequently to
every book its copy.”
• 1529 Act of Henry VIII: System of Privileges fro
printing books
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Some Mythology, Some History 2
• 1709: Statute of Anne “Mother of all copyright
Laws”
• Potters’ Marks used to identify the source of
fired clay pots 3500 years ago
• Trademark Law in early 17th century in
England
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International Protection
• Paris Convention for the Protection of
Industrial Property 1883
• Berne Convention for the Protection of
Literary and Artistic Works 1886
• TRIPS: Agreement on Trade Related Aspects of
Intellectual Property Rights 1994
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IPRs in TRIPS
•
•
•
•
•
•
•
•
Copyrights and Related Rights
Trademarks
Geographical Indications
Industrial Designs
Patents
Lay-out Designs (Topographies) of Integrated Circuits
Trade Secrets
Fair Competition
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Rationale
• Principle of Natural Justice
Creator has a right to economic reward
Creator has a right to control the use of his
creation
• Evolution of Society, economy and technology
necessitated a transparent system
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Basic Principle
• Contract between creator and sovereign state
• Balance between rights of creator and public
interest
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Art. 27 of Declaration of Human
Rights
• 1. Everyone has the right to participate in the
cultural life of the community, to enjoy the
arts and to share in scientific advancement
and its benefits
• 2. Everyone has the right to the protection of
the moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author.
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2
DIFFERENT KINDS OF INTELLECTUAL
PROPERTY RIGHTS
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Two Branches of IPRs
• Copyright and Related Rights
• Industrial Property Rights
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Copyright?
• Copyright is a legal term describing rights
given to creators of original literary and
artistic works
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Works Protected
• Literary works
 Novels, poems, plays, reference works, newspapers,
computer programmes
 Databases
 Advertisements, maps and technical drawings
• Artistic works
 Paintings, drawings, photographs, sculpture
 Architectural works
• Films
• Musical compositions, choreographic works
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Rights
• Economic Rights: Exclusive right to authorise or
prohibit in respect of a work
 Reproduction in various forms, such as printed publication
or sound recording
 Public performance as in a play or musical work
 Recordings such as in a CD or VCD or DVD
 Broadcasting by radio or television or satellite or cable or
Internet
 Translation
 Adaptation e.g. a novel into a screenplay
• Moral Rights: Right of authorship and integrity
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Related Rights
• Rights of performing artists in their
performances
• Producers of sound recordings in their
recordings
• Broadcasting organisations in their broadcasts
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Law
• The Copyright Act, 1957 as last amended in
1999
• Term of Protection: life of the author plus 60
years
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Patents
• A patent is an exclusive right granted for new
(novelty) invention (inventiveness), which is a
product or a process that provides a new way
of doing something, or offers a new technical
solution to a problem which has an industrial
application (utility)
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Patent Protection
• The invention cannot be commercially made,
used, distributed or sold without the patent
owner’s consent.
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Law
• The Patents Act, 1970 as last amended in 2005
• Term of protection 20 years.
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Industrial Designs
• An industrial design is the ornamental or
aesthetic aspect of an article. The design may
consist of three-dimensional features such as
the shape or surface of an article, or of twodimensional features such as patterns, lines or
colour.
• It must appeal to the eye.
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Industrial Design Protection
• Design must be new or original
• Right to prohibit others from copying or
applying the design without owner’s
permission
• Known variously as Design right, copyright or
patent
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Design Law
• The Designs Act, 2000
• Period of protection 10 years extendable by
another 5 years
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Trademark
• A trademark is distinctive sign which identifies
certain goods or services s those produced or
provided by a specific person or enterprise.
• Trademarks may be one or a combination or words,
letters, and numerals; may consist of drawings,
symbols, 3-dimensional signs such as the shape and
packaging of goods, audible signs such as music or
vocal sounds, fragrances or colours used as
distinguishing features
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Right
• Law gives exclusive right to the owner to use it
or authorise its use by others
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Trade Mark Law
• The Trade Marks Act, 1999
• Term of protection: 10 years renewable
indefinitely
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Geographical Indications (GIs)
• Indications of natural, agricultural or
manufactured goods from a particular area
which have certain quality or reputation or
other characteristic which can essentially be
attributable to their geographical origin.
• Eg. Darjeeling Tea, Alphonso mango
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GI Right
• Exclusive right to the use of the Geographical
Indications.
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GI Law
• The Geographical Indications of goods
(Registration and Protection) Act, 1999.
• Term of Protection: 10 years renewable
ad nauseum.
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The Semiconductor Integrated Circuits
Layout-Design
• “Layout-design” means a layout of transistors,
and other circuitry elements and includes lead
wires connecting such elements and
expressed in any manner in a semiconductor
integrated circuit.
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Registrable lay-out Designs
• Original
• Novel
• Distinctive
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Right
• Exclusive use.
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Law
• The Semi-conductor Integrated Circuits Layout Design Act, 2000.
• Term of protection: 10 years.
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THE PROTECTION OF PLANT VARITIES
AND FARMERS’ RIGHTS 1
• Registrable varieties and criteria:
New Varieties
Novelty, Distinctiveness, uniformity and
stability
Extant varieties
Distinctiveness, uniformity and stability
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THE PROTECTION OF PLANT VARITIES
AND FARMERS’ RIGHTS 2
• Persons who can Register
Breeders, farmers, universities, agricultural
institutes
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THE PROTECTION OF PLANT VARITIES
AND FARMERS’ RIGHTS 3
• Right
• Exclusive right to produce, sell, market,
distribute import or export the variety
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THE PROTECTION OF PLANT VARITIES
AND FARMERS’ RIGHTS 4
• Law
• The Protection of Plant Varieties and
Farmers’ Rights Act, 2001
• Period of protection
15 years for annual crops
18 years for trees and vines
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Trade Secret
• "Trade secret" means information, including a
formula, pattern, compilation, program, device,
method, technique, or process, that:(i) derives
independent economic value, actual or potential,
from not being generally known to, and not being
readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use, and(ii) is the subject of efforts
that are reasonable under the circumstances to
maintain its secrecy.(UTSA of US)
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When Trade Secrets are
preferred?
• When invention is not patentable
• When longer period of protection is
desired
– Patent protection is limited to 20 years, when
secret can be kept beyond that period
• When cost of patent protection are
prohibitive
• When it is difficult to reverse engineer.
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3
ROLE OF INTELLECTUAL PROPERTY
RIGHTS IN TRANSFER OF TECHNOLOGY
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Transfer of Technology
• Assignment of technological intellectual
property, developed and generated in
one place to another through legal
means such as technology licensing or
franchising
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TRIPS and Technology Transfer
• Art. 7: IPRs should contribute to the transfer and
dissemination of technology
• Art. 8: Measures be taken to prevent abuse of
IPRs including practices that adversely affect the
international transfer of technology
• Art. 40: Provisions to prevent anticompetitive
practices in contractual licences
• Art 66.2: Obligations of developed countries to
provide incentives to their enterprises to
promote technology transfer to LDCs.
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Changing Profile of IP Owners
• Individual Innovators vs. Corporate
Technology Owners
• Corporatization of IPRs
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Technology Transfer: An Investment
• Transfer of Technology an Investment Decision
• Investors
– Are Guided by economic rationale of Maximum
Returns
– Do not want expropriation of the technology
– Will try to prevent competition.
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Accessing Technology
• Technology available free on Internet but very
few firms take them up for fear of competitors
also doing so
• Sometimes low level of IP protection is used by
governments when domestic firms are not
compete with large TNCs
– They use reverse engineering to produce the new
products
– Eg. Pharmaceutical industry of India between 1970
and 2005.
• Post TRIPS this is not possible
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Role of IPRs in Technology Transfer
• IPRs are Critical for Investors
• Guarantee against Misappropriation
– A US survey of 1988 showed 42 % firms (high
technology) considered patents very important and 27
% moderately important in technology transfer.
• Easiness in transfer of technology because of
legal certainty
• Other Factors like general economic environment,
capacity of domestic firms to absorb technology,
market conditions also important.
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Thank You
E-mail : tcjames@nipo.in