- 1. Intellectual Property Rights By Prof. Dipak V.
ShirbhateLecturer, Department of Production Engineering,
VJTI,Matunga,Mumbai-19 www.vjti.ac.in
2. Intellectual Property Rights
- The Concept of Intellectual Property
- Rationale behind Intellectual Property
- Balancing the Rights of Owner & Society
- Issues before us regarding IPR
3. What is Intellectual Property ?
- Any thing created by mans
- Ingenuity, Knowledge & Skill
- besides labor and capital.
4. Concept of Property
- Lay mind : Some material object belonging to a particular
person.
- Concept of Ownership is critical to Concept of Property.
- Ownership: Right to Possess, Use& Dispose at the desire of
the owner & to exclude others.
- Society recognition is must.
- Legal Definition : Bundle of rights that the law confers on a
person (s) by virtue of ownership and possession of an object.
5. Types of Property
- Two types : Tangible& Intangible
- Tangible: Land ,Building etc referred to asCorporeal
Property
- Intangible : Copyright, Idea, Innovation etcreferred to
asIncorporeal Property
- Intellectual Property is Incorporeal Property and it derives
its value from ideas.
- IP is a dynamic area while corporeal property is a static
one.
6. Classification of IP
- IP is generally divided into two categories
- Industrial Property :Rights relating toInventions,Industrial
Designs , Trade Marks, Geographical Indication& Appellation of
Origin.
- Copyright :Rights relating to creation of human mind in the
fields ofLiterature, Music, Art and Audio-Visual works(Related
Rights &NeighboringRights)
7. Seven types of IP
- TRIPS Agreement of the WTO recognizes seven types
ofIntellectual Property Rights
- 1.Copyright & Related/Neighboring Rights
- 2.Trade Marks, Trade Names, Service Marks
- 3.Geographical Indications
- 6.Layout Designs of Integrated Circuits
- 7.Undisclosed Information
- TRIPS: Trade Related Aspects Of Intellectual Property
Rights
- WTO: World Trade Organization
8. Copyright
- Copyright is granted for original, literary musical, artistic
or audio-visual works
- The creations of authors, playwrites, composers,artists and
filmmakers
- It includes rights of reproduction, communication to the
public,
- adaptation and translation of work
9. continued.
- Although originality in expression is a requirement for
copyright, the quality of work is not an issue at all.
- Copyright subsists the work which is the creation of idea(s);it
is not the idea(s) which is protectedby copyright,but merely the
expression of the idea in the work
- Example : Painting/Sunset
10. Trade Marks/Names/Service Marks
- Trade Marks & Service Marks :
- Distinctive Symbols of the company
- Trade Names :Name of the enterprise that individualizes the
name of the company
- Trade Mark to be Distinctive not Deceptive
- No requirement in law for Quality Standard
11. Geographical Indications (GI)
- It is a sign used on goods that have a specific geographical
origin & possesses qualities /reputation solely attributed to
place of origin and is protected as IP
- A GI is different from a Trade Mark
- GI All producers producing in designated place can use
- IPR. It also denotes indication of source &
appellation
- Trade Mark-Distinguishes Product/Services of enterprise
- from others and exclude others from using thetrade mark
12. Industrial Design
- The ornamental or aesthetic aspect of an article
- Serves as a tool for product differentiation
- Attracts customers by enhanced visual appeal and become IP to
be protected
- Applied to wide range of products from industry or
handicraft
13. Patent
- A Patent is a statutory right granted for a limited period to
an inventor in respect of an invention to exclude any other person
from manufacturing, using or selling the patented product or from
using the patented process, without due permission.
- Under the TRIPS Agreement of the WTO
- inventions in all fields of Technology
- Products or Processes are patentable if they meet the criteria
ofNovelty , involve anInventive stepand are capable ofIndustrial
Application
- Aim : Rewarding Intellectual Creativity for encouraging
economic and technological development
14. Layout Designs-Integrated Circuits
- Layout Designs topography) of integrated circuits is relatively
new area in IP
- Has appeared with computer technology The programming
instructions on a computer chip are implemented through a circuitry
printed on semiconductor materials. The design of circuitry on the
chip requires great investments of knowledge, skills and capital
and therefore needs to be protected as IP.
- Protected as IP against copying but improved design by reverse
engineering is regarded as fair.
- Criteria Original-No Monopoly Right
15. Undisclosed Information
- Undisclosed Information gets recognition as a kind of IP to be
protected under TRIPS
- It virtually restricts honest practices to protection of trade
secrets.
16. Rationale behind IPR
- IPRs are based on three premises :
- 1.Creative activity culminating in IP can be increased by
encouragement but not in adequate quantity without economic
incentives.
- 2.Adequate Economic Benefits as just rewards for creation of IP
through grant of Monopoly Rights even if for limited period.
- 3.The provision of the Global IP regime to ensure economic
returns and safeguarding interests of all concerned.
17. Balancing the Rightsof Owner & Society
- There can be no absolute rights in IP because all individual
rights are subject to the recognition of the rights of other
individuals and the rights of the society.
- Role of State & purpose of Law : Harmonize conflicting
claims and achieve balance.
18.
- Protection of Individual Property is important but it is
equally important in a democratic politythat the State creates
condition and necessary structure for wide spread access to
opportunities
- Balancing responsibility of the State reflected in the Indian
Law
- Private Property is strongly respected and legally protected,
it is no more a fundamental right
19. IP & Constitution of India
- The constitution of India under entry 49 of Union list of
matters mentions about Patents, Inventions, Designs, Copyright,
Trade Marks & Merchandise;but it makes no specific reference to
IP
- However IP as a form of property can be put under Article 300A
dealing with property and be entitled to a legal right.
20.
- Experts have indicated towards the possible conflicts between
IP, especially the Copyright and the constitutionally guaranteed
freedom of speech and expression.
- The Honble Courts have zealouslyupheld this fundamental
freedom.However such challenge has not yet been mounted.
21. Enforcement of IPR
- India and the TRIPS Agreement : India has to a large extent
complied with its obligations under TRIPS through a series of
amendments to its existing laws and through new legislations.
However the TRIPS agreement leaves some room to deal with various
issues at national level such as definition of an invention,
exception to exclusive rights, compulsory licenses and others.
22. New Legislations/Amendments to Existing Legislations
- The Protection of Plant Varieties and Farmers Rights Act,
2001
- The Geographical Indication of Goods
- (Registration & Protection) Act, 1999
- The Semiconductor Integrated CircuitsLayout Designs Bill,
1999
- The Patents Act 1970,as amended by Patents (Amendment) Act,
2002
- The Copyright Act, 1957 together with International Copyright
Order, 1999
- All issues regarding IPR in India are governed by these
legislations
23. Issues before Us
- What is a patentable Invention ?
- A new product or process involving an inventive step and
capable of industrial application
24. Procedure for Obtaining Patent
- A person claiming to be the true and first inventor of an
invention
- Filing a Patent Application:
- Only one application is filed for one invention along with
provisional or complete specification
25. The Specification must contain :
- Title, sufficiently indicating the subject matter
- Relevant drawings/graphics
- Full & particular description of invention
- Details of its operation or use and the method by which it is
to be performed
- Disclosure of the best method of performing the invention
- Claims defining the scope of the invention substantiated by the
disclosure
- Abstract providing technical information
- Declaration as to the inventiorship of the invention
26. Search for anticipation by previous publication and by prior
claim
- The search requires investigation for
- Already Published or Claimed
- Any objection raised by the examiner are to be removed by
applicant within 12 months.
27. Acceptance & Advertisement
- Controller of Patents notifies it to the applicant and also
advertises it in the Official Gazette for public inspection
- From date of advertisement to the date of sealing the patent,
the applicant enjoys the privileges and rights as if a patent had
been sealed on the date of advertisement except the right of
infringement.
28. Opposition to the grant of Patent
- Notice to Controller within 4 months from the date of
advertisement on following grounds :
- Wrongfully obtained by the inventor
- Anticipated in a specification filed for another patent
earlier
- Publicly known in India before priority date of claim
- Notan invention within the meaning of the Act
- The information furnished is false
- Geographical origin is not disclosed or falsely disclosed
- Convention application not filed in India in prescribed time
for the same invention in a convention country
29. Grant of Patent
- Where the application for a patent has been accepted without
opposition or after disposing the opposition, a patent shall be
granted if the applicant makes a request within 6 months of
advertisement.
- The patent so granted shall be sealed with the seal of the
patent office and the date shall be entered in the register.
30. Rights of Patent
- Right to exploit the patent
- Right to grant license etc
- Right to sue for infringement
- For imparting instructions to pupils
- Medicine or Drug imported by the Government for its use in
hospital, medical institute, Lab, maintained by or on behalf of the
Government.
31. Difficulties Primarily Faced in Creation of IPR in Academic
& Research Institute: 1. Lack of knowledge regarding
thenovelty/innovation of a research workpersuade by a scholar with
respect to itssuitability for creation of IPR.( Patent Search) 32.
2. Absence of systematic planning andorganizing of a research
programmein reference to filing of patent. - To conceive the part
or phasesof any developmental workjustifying its novelty/innovation
. 33. 3. Absence of knowledge regarding thetimelydisclosure of
invention toregister the rightof inventor- ship/creatorship 4. Lack
of idea regarding the type ofinformation,level of technicality and
extent of experience/data that can be disclosed or made public
bylecturing, publication etc. without harming theinterest of the
work with respect to its right forIP. 34. 5. Poor knowledge of
preparation oftechnicaland legal write-up of a work to
justifyingitssuitability to register as IPR prior to the
legalconsideration. 6. Non availability of legal staff / cell in
mostof the academic institutes to prepare andplead the case of IPR.
35. Immediate measures to be taken : Activation of the system for
Development of Awareness, Attitude and Culture for creation of IP
36.
- The intellectual property thus vests in a creation of human
mind involving knowledge, labor and skill.
- It is the result of sustained intellectual application and
efforts by inventors/authors/artists
- Powerful factor of production and wealth generation
- Significant competitive advantage over rivals in the trade and
industry
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