INTRODUCTION:
Intellectual Property Rights (IPR) is legal rights, which result from intellectual activity in industrial, scientific, literary and artistic fields. These rights Safeguard creators and other producers of intellectual goods and services by granting them certain time-limited rights to control their use. Protected IP rights like other property can be a matter of trade, which can be owned, sold or bought. These are intangible and non-exhausted consumption (1).
HISTORY OF IPR IN INDIA
George Alfred Deepening is supposed to have made the first application for a patent in India in the year 1856. On February 28, 1856, the Government of India promulgated legislation to grant what was then termed as "exclusive privileges for the encouragement of inventions of new manufactures" i.e. the Patents Act.
On March 3, 1856, a civil engineer, George Alfred DePenning of 7, Grant’s Lane, Calcutta petitioned the Government of India for grant of exclusive privileges for his invention - "An Efficient Punkah Pulling Machine". On September 2, DePenning, submitted the Specifications for his invention along with drawings to illustrate it's working. These were accepted and the invention was granted the first ever Intellectual Property protection in India (2, 3).
WHAT IS PROPERTY?
The ownership of a thing is the right of one or more person to possess and use it to the exclusion of other. In this code the thing of which there may be ownership is called property; (4)
Properties are of two types:
1. Tangible property
2. Intangible property
1. Tangible property:
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.
2. Intangible property:
There is 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 (5).
WHAT IS INTELLECTUAL 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 (6). 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.
What is Intellectual Property Rights?
Intellectual property rights (IPR) 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. Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce (6).
Categories on Intellectual Property
IP is divided into two categories for ease of understanding:
1. Industrial Property
2. Copyright
Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source,
Copyright which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.
A. Intellectual Property-
1. Inventions
2. Trademarks
3. Industrial design
4. Geographical indications
B. Copyright-
1. Writings
2. Paintings
3. Musical works
4. Dramatics works
5. Audiovisual works
6. Sound recordings
7. Photographic works
8. Broadcast
9. Sculpture
10. Drawings
11. Architectural works etc. (6)
TYPES OF IPR
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Figure 1: Types of IPR
WHAT IS PATENT?
A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. 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 (7).
The goal of the patent system is to encourage inventors to advance the state of technology by awarding them special rights to benefit from their inventions. Books, movies, and works of art cannot be patented, but protection is available for such items under the law of copyright. Patent law is one branch of the larger legal field known as intellectual property (8, 9, 10).
HISTORICAL EVOLUTION OF PATENT LAW IN INDIA
The development of India's patents regime mirrors the country's journey from colonization to independence to global citizen. Three distinct periods can be identified, each of which is detailed below. To summarize, in the first or “colonial” period the British enacted India's first patent statutes during the latter half of the 19th century. Although India gained its independence from the British in 1947, it was unable to enact its first independently-drafted patent laws until the 1970s due to deep political and policy divisions over the value and role of patent protection in the nation's developing economy. India's Patents Act, 1970 entered into force during the second or “post-independence” period. Although modeled on Great Britain's Patents Act, 1949, the Indian Act incorporated major departures intended to lessen the social costs imposed by largely foreign-owned patents. The Patents Act, 1970 prohibited patents on products useful as medicines and food, shortened the term of chemical process patents, and significantly expanded the availability of compulsory licensing. [FN50] During the third or “globalization” period from approximately 1986 to the present, India's participation in the debates over the inclusion of intellectual property within the GATT framework and its eventual entry into the World Trade Organization (WTO), along with its accession to the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty, have compelled significant strengthening of the nation's patent laws. The implementation of those changes is ongoing, and their anticipated impact remains to be fully seen. Today India stands as a rising global power with a patent system still very much in flux (11).
What can be patented?
Any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." In general, this means you must satisfy the following four requirements to qualify for a patent:
· The subject matter must be patentable.
· The invention must be novel.
· The invention must have some utility or usefulness.
· The invention must not be obvious (12).
Who can apply for patent?
The inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee (13).
Patent System in India:
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. Term of every patent in India is 20 years from the date of filing of patent application, irrespective of whether it is filled with provisional or complete specification. However, in case of applications filed under PCT the term of 20 years begins from International filing date (14).
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1856 |
The act vi of 1856 on protection of inventions based on the British patent law of 1852. Certain exclusive privileges granted to inventors of new manufacturers for a period of 14 years. |
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1859 |
The act modified as act xv; patent monopolies called exclusive privileges (making. selling and using inventions in India and authorizing others to do so for 14 years from date of filing specification). |
|
1872 |
The patterns and designs protection act’ (act xiii of 1872) |
|
1883 |
The protection of inventions act. |
|
1888 |
Consolidated as the inventions and designs act. |
|
1911 |
The Indian patents and designs act. |
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1972 |
The patents act (act 39 of 1970) came into force on 20th April 1972. |
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1999 |
On march 26, 1999 patents (amendment) act, (1999) came into force from 01-01-1995. |
|
2002 |
the patents (amendment) act 2002 came into force from 2oth may 2003 |
|
2005 |
the patents (amendment) act 2005 effective from its January 2005 (15) |
TYPES OF PATENT-
Table 1: Types of patent and their function (6)
|
TYPE OF PATENT |
TYPES OF INVENTION COVERED |
DURATION |
|
UTILITY |
New or useful process, machine manufacture or composition of Material or any new and useful Improvement |
16 years from the date of original application. |
|
DESIGN |
Invention of new, original and ornamental designs for manufactured Products. |
16 years from the date of original application. |
|
PLANT |
Any new varieties of plants that can is reproduced asexually. |
16 years from the date of original application. |
Rationale of Patent:
Patent is recognition to the form of IP manifested in invention. Patents are granted for patentable inventions, which satisfy the requirements of novelty and utility under the stringent examination and opposition procedures prescribed in the Indian Patents Act, 1970, but there is not even a prima-facie presumption as to the validity of the patent granted (16).
Most countries have established national regimes to provide protection to the IPR within its jurisdiction. Except in the case of copyrights, the protection granted to the inventor/creator in a country (such as India) or a region (such as European Union) is restricted to that territory where protection is sought and is not valid in other countries or regions. For example, a patent granted in India is valid only for India and not in the USA. The basic reason for patenting an invention is to make money through exclusivity, i.e., the inventor or his assignee would have a monopoly if,
(a) the inventor has made an important invention after taking into account the modifications that the customer, and
(b) if the patent agent has described and claimed the invention correctly in the patent specification drafted, then the resultant patent would give the patent owner an exclusive market.
The patentee can exercise his exclusivity either by marketing the patented invention himself or by licensing it to a third party (17, 18).
General precautions for an applicant:
Before your company plans to file a patent application, following instructions have to be followed strictly;
1. Maintain strict confidentiality of the invention because an invention has to be novel on the date of filing.
2. Do not disclose the invention to anyone till application is filled or an NDA (non disclosure agreement) is signed.
3. Don’t commercialize invention till the patent application is filed.
4. Keep through record of all the stages of development with dates.
5. Document your invention thoroughly.
6. Define name of the inventors’ right in the beginning to prevent disputes (19).