Intellectual Property Rights –
An Introduction
T.C. James
Director
Ministry of Commerce & Industry
India
1
Objective and Plan of Presentation
Objective
‘To give a general introduction to the concept
of Intellectual Property Rights (IPRs)
Plan of Presentation
‘Rationale of Protection
‘Different kinds of IPRs
2
Definition of Intellectual Property
“Intellectual Property shall include the 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
– 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.”
(WIPO Convention)
3
Rationale: Rewarding individual
‘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
4
Basic Principle
‘Contract between creator and sovereign
state
¾Protection for revelation
‘Balance between rights of creator and
public interest
¾Rights and limitations and exceptions
5
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.”
6
Major Intellectual Property
‘ Copyright and Related Rights
‘ Industrial Property
¾ Patents
¾ Industrial Designs
¾ Trademarks
¾ Geographical Indications
¾ Layout Designs/Topographies Integrated Circuits
¾ Trade Secrets
¾ Protection of New Plant Varieties
7
IP Laws of India
Act
Department
Copyright Act, 1957
Higher Education
Patents Act, 1970
Industrial Policy & Promotion
Design Act, 2000
Industrial Policy & Promotion
Trademarks Act, 1999
Industrial Policy & Promotion
Geographical Indications of Goods (Registration
and Protection) Act(1999)
Industrial Policy
8 & Promotion
Semi-conductor Integrated Circuits Layout Design
Act, 2000
Information Technology
Protection of Plant Varieties and Farmers’ Rights
Act, 2001
Agriculture and Cooperation
Competition Act
Corporate Affairs
Biological Diversity Act, 2002
Environment and Forests
What is Copyright?
‘Copyright is a legal term describing rights
given to creators for their literary and
artistic works
Scope of Copyright
‘Original Literary, Dramatic, Musical and
Artistic Works
¾Work: Ideas expressed in material form
‘Cinematograph Films
‘Sound Recordings
10
Rights
‘Two Kinds of Rights
¾Moral Rights
™To protect personality of author
¾Economic Rights
™To bring economic benefits
11
Moral Rights
‘Right of Authorship
‘Right of Integrity
– Digital Manipulation
– No Right for Display
‘Inalienable Rights
12
Economic Rights
‘Right of Reproduction
– Making copies e.g. an edition of a novel
– Storage in computer memory
‘Right of Distribution/Issuing Copies
– Digital Distribution
‘Right of Communication to the Public
– Public Performance
– Internet Communication
13
Economic Rights
‘Adaptation Rights
– Conversion into another form e.g. literary to
drama
– Abridgement
– Picturizations, comic formats
‘Right to make a cinematograph film or
sound recording
‘Translation Rights
14
Economic Rights
‘Rental Rights
– Only for computer programs, cinematograph
films and sound recordings
– Exception: Not applies to a computer program
where program itself is not the essential object
of rental
15
Resale Rights
‘Author’s right to claim a share of the
proceeds of each public resale of original
copies of works of fine art or original
manuscripts within the term of protection
‘Resale price to exceed Rs. 10,000
‘Share to be fixed by Copyright Board
‘Maximum 10%
16
Ownership of Rights
‘ Literary – author
‘ Drama – Dramatist
‘ Music – Composer
‘ Artistic work – Artist e.g. Painter, sculptor,
architect
‘ Photograph – Photographer
‘ Author of Computer Program – Person who
causes the work to be created
‘ Cinematograph film – producer
‘ Sound Recording - producer
17
Author as Owner of Rights:
Exceptions
‘In the course of employment – employer
‘Employment by newspaper, magazine –
employer has publishing right; other rights
with author
‘Photograph, painting, cinema for valuable
consideration – person who pays money
18
Author as Owner of Rights:
Exceptions
‘Lecture delivered in public – Person
delivering
‘Government Work – Government
‘Public Undertaking Work – public
undertaking
‘Work of International Organization –
International Organization
19
Securing Copyright
‘Formality free protection
‘Voluntary Registration (S. 44 & 45)
‘Registration does not as a matter of law
establish that what is registered is in fact
and in law copyrightable subject matter
20
Remedies for infringement
‘Civil suits for injunctions, damages,
accounts
‘Court of jurisdiction: District Court where
copyright owner resides or does business
‘Cognizable offence
‘Seizure without warrant by Sub-Inspector
21
Penalties and Punishments
‘ First offence – six months imprisonment and
Rs.50,000/- fine
‘ Second offence – one year imprisonment and
Rs.1,00,000/- fine
‘ Maximum – three years imprisonment and
Rs.2,00,000/- fine
‘ Knowing use of infringing copy of a computer
programme attracts seven days imprisonment and
Rs.50,000/- fine
22
What is not Infringement?
‘Fair dealing for private use, research,
criticism, review, reporting
‘Judicial proceedings
‘Work of legislature
‘During course of instructions and
examination
23
What is not Infringement?
‘Performance in an educational institution
‘Performance by an amateur club
‘Making three copies of a book, not
available, for library use
‘Reproduction of public material
‘Use in religious or official ceremonies
including marriage processions
24
Duration of Copyright
‘ Literary, dramatic, Musical and Artistic Works
published during life time of author: Life + 60
years
‘ All Other Works: 60 years from date of
publication
–
–
–
–
Posthumous, Anonymous Works
Works of Government and Organizations
Cinema and Sound Recording
Photograph
25
RELATED RIGHTS
‘Rights granted by law to communicators of
works to the public
– Performers
– Broadcasting Organizations
26
Performer’s Rights
‘Recording, broadcasting and
communicating to the public of a live
performance
‘Presumption of transfer of performer’s
right to cinematographic film producer
‘Duration: 50 years
27
Rights Of Broadcasting
Organisations
‘Broadcast Reproduction Right
‘Re-broadcasting, Recording and
Communicating to the Public of a
Broadcast
‘Duration: 25 Years
28
What is a PATENT?
• A patent is an exclusive right granted for an
invention, which is a product or a process
that provides a new way of doing something,
or offers a new technical solution to a
problem
• The limited monopoly right granted by
the state enables an inventor to prohibit
another person from manufacturing, using or
selling the patented product or from using
the patented process, without permission.
• Period of Patents - 20 Years
29
WHAT CAN BE PATENTED?
Inventions in all fields of technology,
whether products or processes, if they
meet the criteria of
‘ Novelty;
‘ Non-obviousness (inventive step);
‘ Industrial application (utility).
30
Conditions of Patentability
‘Novelty: Invention not known to public
prior to claim by inventor
‘Inventive Step: Invention would not be
obvious to a person with ordinary skill in
the art
‘Industrial Application: Invention can be
made or used in any useful, practical
activity as distinct from purely intellectual
or aesthetic one
31
INVENTIONS – NOT PATENTABLE
An Invention Which is frivolous or
which claims anything obviously
contrary to the well established
Natural Laws e.g.
¾Machine giving more than 100% performance
¾Perpetual motion machine
¾Newton’s laws of gravitation
32
INVENTIONS – NOT PATENTABLE
A machine whose primary or intended use or
commercial exploitation of which could be
contrary to Public order or morality or which
causes serious prejudice to human, animal or
plant life or health or to the environment :
¾ Gambling machine
¾ device for house-breaking
¾ Biological warfare material or device
¾ Terminator gene technology
¾ embryonic stem cell
33
INVENTIONS – NOT PATENTABLE
Mere Discovery of a Scientific Principle
or Formulation of an Abstract Theory
or discovery of any living thing or non–living
substance occurring in nature
‘ Discovery adds to the human knowledge by
disclosing something ,not seen before, whereas,
‘ Invention adds to human knowledge by suggesting an
action resulting in a new product or new process
‘ e.g. Archimedes Principle, Superconducting
Phenomenon as such – not patentable ,
However,
‘ An apparatus /method for technological
li i
b
bl
34
INVENTIONS – NOT PATENTABLET
The mere discovery of a new form of a known
substance which does not result in the
enhancement of the known efficacy of that
substance OR
the 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.
35
INVENTIONS – NOT PATENTABLE
A substance obtained by mere admixture resulting
only in the aggregation of the properties of the
components thereof or a process for producing
such substance
For example, Not patentable• Paracetamol (Antipyretic) +Brufen (analgesic) = A drug
(antipyretic & analgesic)
• A mixture of sugar and some colorants in water to
produce a soft drink is mere admixture
But, a mixture resulting into synergistic properties of
mixture of ingredients however, may be patentable
e.g Soap, Detergents,lubricants etc
36
INVENTIONS – NOT PATENTABLE
Mere arrangement or re-arrangement or
duplication of known devices,each functioning
independently of one another in a known way
for example -.
ƒ A Bucket fitted with torch,
ƒ An Umbrella with fan
ƒ A Clock and radio in a single cabinet
ƒ A flour-mill provided with sieving
G) Deleted [ Methods of
Testing]
37
Not patentable
Method of Agriculture or Horticulture
• e. g. Cultivation of algae ,
Producing new form of a known plant,
preparation of an improved soil
However, Agricultural Equipments
are patentable
38
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
For example:
o
o
o
o
o
o
Removal of cancer tumor
Removal of dental plaque and carries,
Surgical processes,
Processes relating to therapy,
Method of vaccination,
Blood transfusion
39
However ,
ƒ Method performed on tissues or fluids
permanently removed from the body
ƒ Surgical,therapeutic or diagnostic Apparatus
or instrument
are not excluded from patentability
40
Inventions - Not Patentable
j) Plants & animals in whole or any part
thereof other than micro- organisms,
but including seeds, varieties and species
and essentially biological process for
production or propagation of plants & animals
For example,
Clones and new varieties of plants:
- Not patentable
Microorganisms, per se: Not patentable,
A process for production of plants or animals
if it consists entirely of natural phenomena
such as crossing or selection”- essentially biological
- not patentable
41
Inventions - Not Patentable
A mathematical method or a business
method or algorithms or
a computer programme per se
These are the outcomes of mental process only
and do not involve industrial process or product
For example‘ Computer program claimed by itself or as a
record on a carrier – not patentable
42
‘l) A literary,dramatic, musical or artistic work or
any other aesthetic creation including
cinematographic work and television productions
These subject-matters fall under the copy-right
protection
A mere scheme or rule or method of performing
mental act or method of playing game
Examples –
‘ Scheme for learning a language , Method for solving a
crossword puzzle, Method of learning a language,
Method of teaching /learning - Not patentable
‘ Novel apparatus for playing game or carrying
out a scheme – patentable
43
Presentation of information
Examples –
Any manner or method of expressing
information , whether by spoken words,
Visual display, symbols ,diagrams or information
recorded on a carrier
Topography of integrated circuits.
An invention which, in effect, is the
Traditional Knowledge or an aggregation
or duplication of known properties of
traditionally known component or
components
44
ƒ Traditional Knowledge is already in public
domain, and hence, not patentable
ƒ However, any value-addition using
Traditional Knowledge leading to a new
process or product ,possessing novelty,
inventive step and industrial applicability,
can be patentable
‘ Inventions relating to atomic energy falling within
the section 20(1) of the ATOMIC ENERGY ACT, 1962.
45
Industrial Designs
What is an Industrial Design?
‘An industrial design is the ornamental or
aesthetic aspect of an article which must
appeal to the eye. 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
What is a Registrable Design?
‘‘Design’ means only the features of shape,
configuration, pattern, ornament or
composition of lines or colours applied to
any article whether in two dimensional or
three dimensional or in both forms, by any
industrial process or means, whether
manual,mechanical or chemical, separate
or combined, which in the finished article
appeal to and are judged solely by the eye.
Consumer Products
49
Pharmaceutical Product
50
Textile & Jewellery
51
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DESIGNS
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52
Who may apply?
‘Any person claiming to be the proprietor
– The person for whom the design is executed
for a consideration
– The person who has acquired the design right
– The author
Rights of the Registered Proprietor
‘The proprietor of the registered design
has the exclusive right to apply a design
to any article in the class in which the
design is registered
‘Period of protection is ten years
extendable by 5 years..
54
What is Excluded?
‘Any mode or principle of construction or
anything which is in substance a mere
mechanical device
‘Trade mark
‘Property mark
‘Artistic work
What is not registrable?
‘A design which is not new or original
‘A design which has been disclosed to the
public anywhere in the world prior to the
filing
‘A design which is not significantly
distinguishable from known designs or
combination of known designs
What is not registrable?
‘A design which comprises or contains
scandalous or obscene matter
‘A design which is contrary to public order
or morality
NOT REGISTRABLE ARTICLES
‘ Calendar, certificates,forms, greeting cards,leaflets,
‘ Maps, building plan,medals
‘ Labels,tokens,stamps
‘ Religious symbols
‘ Mere mechanical contrivance
‘ Building and construction or real estate
‘ Flags,emblems,or signs of any country, computer icons Parts
of articles not manufactured and soled separately
‘ Layout designs of integrated circuits Basic shape, variations
commonly used in the trade
‘ Mere workshop alteration
‘ Mere change in size
‘ Any principle or mode of construction of article
58
Penalty for piracy
‘If anyone contravenes the copyright in a design-
he is liable for every offence to pay a sum not
exceeding Rs.25,000/- to the registered proprietor
subject to a maximum of Rs.50,000/- recoverable
as contract debt in respect of any one design.
‘The suit for infringement, recovery of damage
etc; should not be filed in any court below the
court of District Judge
59
TRADEMARKS
4711 (Cologne)
What is a trademark?
‘A trademark is a distinctive sign which
identifies certain goods or services as those
produced or provided by a specific person
or enterprise.
TRADE MARK
‘ A name of an enterprise or a Mark capable of
being represented graphically, distinguishing the
goods or services of one person from those of others
e. g., LUX, Godrej, TVS ,Telco, 555, APPLE
‘ Trade Mark can be -
o sign , words, letters, numbers,
o drawings, pictures, emblem,
o colours or combination of colours,
o shape of goods,
o graphic representation or packaging or
o any combination of the above
as applied to an article or a product.
62
Kinds of Trademarks
‘Marks on goods
‘Service Marks
‘Certification trademark
‘Collective Marks
‘Well known marks
‘Trade Names
TRADE MARK
‘ Service Marks include banking, education, finance,
insurance, real estate ,entertainment,repairs, transport,
conveying news and information, advertising etc
‘ Certification Trade marks: Certified by the Proprietor
as having characteristics like geographical origin,
ingredients, quality e.g.AGMARK,WOOLMARK
Certification mark cannot be used as a trade mark.
• Certifies that the goods on which it is applied
are made of 100% wool. It is registered in 140
countries and licensed to the companies which
assure that they will comply with the strict
standards set out by the Woolmark company ,
64
the owner of the mark.
COLLECTIVE MARK
‘ COLLECTIVE MARK is a Mark that distinguishes
the goods -or services of members of association
from marks of other undertakings
‘ Who owns collective Mark ?
Association of persons
‘ It could be manufacturers, producers, suppliers,
traders or other profession bodies like institute of
chartered accountants, test cricketers association
etc.
65
WELLKNOWN MARKS
•Coca Cola for soft drink
•Toblerone (Triangularshaped chocolates)
Trade Names
•Godrej- Furniture, Refrigerators, Storewell, Compactor etc
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•GE- Bulbs
66
Logo of some well known brands
Logo of Washing Powder of
Hindustan Lever
Logo of iodised salt of Hindustan
Lever
Logo of Lipton tea
67
Forms of TM
‘Visual: Words, letters, numerals,
devices including drawings and
symbols or 2-D representations of
object or a combination of two or more
of these, colour combinations or colour
per se, 3-D sign as shape of goods or
packaging.
‘Audio: Sounds, Musical Notes
‘Olfactory: Smells
68
CRITERIA OF TM PROTECTABILITY
‘ Distinctive (basic function):
- inherent (e.g.RIN), or
- acquired by usage (e.g. TATA)
‘ Non-deceptive ( to avoid misleading)
‘ Not contrary to public order, morality
Special Requirements
™ A mark is registered for specified classes of
goods or services.
69
What is protected and
what’s not?
‘ Right to use TM in relation to goods/
services as registered are protected (If
TM consists of several parts, protection
is for TM as a whole)
‘State Emblems, Official Hallmarks,
Emblems of Intergovernmental
Organizations cannot be used as TM.
70
OFFENCES & PENALTIES
™
For any person, falsely applying TM or Selling or
providing services to which TM or false Trade
Description is applied- Imprisonment for 6 months to 3 yrs and fine Rs.
50000 to 2 lakh
™ For Second or Subsequent convictions,-
The enhanced penalty- Imprisonment for
1 year to 3 years and fine Rs 1 lakh to 2 lakh
™ RELIEF in Infringement and Passing off • Injunction, Damages, Accounts of Profit
• An order for destructing or erasing labels and marks
71
GEOGRAPHICAL
INDICATIONS
Paithani weaving
72
What is a Geographical
Indication?
Geographical Indication is an indication which
identifies goods as agricultural goods,
natural goods or manufactured goods as
originating, or manufactured in the
territory of country, or a region or locality
in that territory, where a given quality,
reputation or other characteristic of such
goods is essentially attributable to its
geographical origin.
In case of manufactured goods one of the
activities of either the production or
processing or preparation of the goods
concerned takes place in such territory,
region or locality, as the case may be
(Section 2[1]{e}).
‘Explanation clarifies that GI need not be a
geographical name
¾E.g. Alphonso, Basmati
‘Goods include goods of handicraft or of
industry and also foodstuff.
Registration
‘Provides for registration
¾Of GIs, Proprietors & Authorized Users
[S.6(1)]
‘Valid for 10 years; renewable ad nauseum
(S. 18)
‘Registration prima facie evidence of
validity (S. 23)
Who can Register?
‘Producer
¾Any association of persons or producers, or
¾Any Organization/authority established by
or under any law
¾which represent the interests of the producers
of the concerned goods [S.11(1)]
™Producer includes trader
‘Authorized User [S.17(1)]
Rights
‘Exclusive right to use the Geographical
Indication on the goods
‘Right to obtain relief for infringement of
the Geographical Indication
Working of the Act
‘ Act brought into force on 15 September 2003
‘ GI Registry established at Chennai
‘ 152 applications so far
‘ 104 products registered
‘ No authorised user registered so far
‘ No foreign product registered so far
‘ One foreign application (Pisco) published
‘ Applications for Champagne and Scotch Whisky under process
‘ No appeals against the decisions of the Registrar of GIs so far.
SOME REGISTERED
GEOGRAPHICAL
INDICATIONS
Darjeeling Tea
Kangra Tea
Nanjangud Banana
Coorg Orange
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Pochamppalli Ikat
Mysore silk
Bhavani Jamakkalam
Kasuti Embroidery
Kota Doria
Kullu Shawl
Bidriware
Channapatna toys
Madhubani Paintings
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The image cannot be display ed. Your computer may not hav e enough memory to open the image, or the image may hav e been corrupted. Restart y our computer, and then open the file again. If the red x still appears, y ou may hav e to delete the image and then insert it again.
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SOLAPUR CHADDAR AND TERRY TOWEL
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MADURAI SUNGUDI
SALEM FABRIC
ORISSA IKAT
PHULKARI EMBROIDERY
Karimnagar Silver Filigree
ROSE WOOD INLAY OF
MYSORE
MYSORE TRADITIONAL PAINTINGS
Mysore sandal soap & oil
Horticultural Products from
Mysore
Udupi mallige
Mysore mallige
Hadagali mallige
ARANMULA KANNADI (METAL
MIRROR)
Registered Proprietor:
Viswabrahmana Aranmula Kannadi Nirman
Society
Viswabrahmana Buildings
S. Fort, Aranmula, Kerala
NAVARA RICE
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PALAKKADAN MATTA RICE
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MALABAR PEPPER
ALLEPPEY COIR
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BRASS BROIDERED COCONUT SHELL
CRAFT OF KERALA
SCREWPINE CRAFTS OF KERALA
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MADDALAM OF PALAKAD
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ALLEPPEY GREEN CARDAMOM
POKKALI RICE
Integrated Circuit
Layout Designs
What is Layout Design?
Layout of transistors and other circuit
elements, including lead wires
connecting such elements and
expressed in any manner in a
semiconductor integrated circuit (IC).
Why to protect?
‘IC Layouts are creations of human
mind;
‘There is lot of investment of time and
money in the creation but copying is
very cheap;
‘Fertile area with new circuit designs
made every day to cater for
miniaturization and novel applications.
Why special protection?
‘There may not be novelty so cannot be
patented;
‘Copyright protection does not return
the investments since commercial life
of a design is limited.
Protection is against…
‘Act of reproducing a layout design fully
or in parts;
‘Importing, selling or distributing
commercially a protected layout design
or IC incorporating it.
But identical design created
independently by third party is
not prohibited.
Trade Secret
The best kept
secret till date
Trade Secrets
‘Some inventions, data, information
cannot be protected by any of the
available means of IPRs. Such
information is held confidential as a
trade secret.
‘Trade secret can be an invention, idea,
survey method,manufacturing process,
experiment results, chemical formula,
recipe, financial strategy, client
database etc.
When Trade Secrets are
preferred?
‘When invention is not patentable;
‘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
How to guard Trade Secret?
‘ Restricting number of people having access
to secret information
‘ Signing confidentiality agreements with
business partners and employees
‘ Using protective techniques like digital data
security tools and restricting entry into area
where trade secret is worked or held
‘ National legislations provide protection in
form of injunction and damages if secret
information is illegally acquired or used.
Plant Varieities’ Protection
THE PROTECTION OF PLANT VARITIES
AND FARMERS’ RIGHTS
‘ Registrable varieties and criteria:
¾ New Varieties
™ Novelty, Distinctiveness, uniformity and stability
¾ Extant varieties
™ Distinctiveness, uniformity and stability
‘ Persons who can Register
¾ Breeders, farmers, universities, agricultural institutes
‘ Period of protection
¾ 15 years for annual crops
¾ 18 years for trees and vines
Rights of Breeders
‘ Production
‘ Sale
‘ Marketing
‘ Distribution
‘ Export
‘ Import
However, if the breeders’ variety is essentially derived
from a farmers’ variety, the breeder cannot give any
authorisation without the consent of the farmers or
communities from whose varieties the protected variety is
derived.
Farmers’ Rights
‘ To save, use, sow, re-sow, exchange, share or sell his
farm produce including seed in the same manner as he
was entitled earlier (Seeds for sale should not be branded)
‘ To full disclosure of the expected performance of the
Seeds or planting material by the plant breeder. Where
these fail to perform in the manner claimed by the
breeder, the farmer may claim compensation from the
plant breeder.
Researchers’ Rights
• Free and complete access to protected
materials for research
use
in
developing new varieties of plants.
However, authorisation of the breeder
is required “whose repeated use of
such variety as parental line is
necessary for commercial production
of such other newly developed
variety”.
Benefit Sharing
‘ For a variety registered, NGOs or individuals can claim a
share of benefits that may arise from its
commercialisation on behalf of any village or local
community;
‘ Any individual or NGO can make a claim on behalf of a
village or local community for the contribution that they
had made in the evolution of any variety registered under
the Act.
‘ Amount of Compensation as determined by the Plant
Variety and Farmers’ Rights Authority should be
deposited by the breeder in the National Gene Fund.
THANK YOU
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