What Is Intellectual Property?
What Is Intellectual Property?
Intellectual property protection is the key factor for economic growth and
advancement in the high technology sector. They are good for business, benefit
the public at large and act as catalysts for technical progress. Whether IPRs are
a good or bad thing, the developed world has come to an accommodation with
them over a long period. Even if 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. Insofar as their benefits outweigh their disadvantages, the developed
world has the wealth and infrastructure to take advantage of the opportunities
provided. It is likely that neither of these holds true for developing and least
developed countries. (Extracts from Report on Commission on IPR London
September 2002).
Intellectual Property Rights are legal rights governing the use of creations of
the human mind. The recognition and protection of these rights is of recent
origin. Patents, designs and trademarks are considered as industrial property.
As per International Convention for the protection of industrial (Paris
Convention) the protection of industrial property has as its object patents,
utility models, industrial designs, trademarks, service marks, trade names,
indications of source or appellations or origin and the repression of unfair
competition when copyrights, Geographical indicators, layout Designs and
confidential information were included to industrial property, they all become
intellectual property.
5) Patents:
Broadly, the following acts deal with the protection of intellectual property:
2. Copyright
Copyright protects the right of the creator on his tangible work to specifically
copy or reproduce or publish the work for monetary gains or otherwise. It
doesn’t specifically require registration of the copyright. It is an exclusive legal
right given to the work creator, to reproduce or generate copies or translate or
adapt his work. It is governed by the Indian Copyright Act, 1957 (as amended
in 2012) and Copyright rules 1958 (as amended in 2013, 2016).
Term of Copyright: A copyright shall subsist in the work from the time it is
published within the lifetime of the author until sixty years after the author
dies. In Section 22 of the Indian Copyright Act, 1957; it is mentioned as,
d) Name, address, the nationality of the author of the work and if the author is
deceased, date of his death;
i) Year and Country of first publication and Name, address, the nationality of
the publisher;
ii) Year and Countries of subsequent publications, if any, and name, address,
the nationality of subsequent publishers;
i) Vakalatnama or Power of attorney signed by the advocate and the party (if
the application is made by the advocate of the party);
j) Three copies of published work must be sent along with the application.
k) If the work is unpublished, two copies of the manuscripts must be sent with
the application (one copy will be duly stamped and returned and other will be
retained).
p) Applicant must provide his mobile number and email address to receive the
filing number.
(iii) The claimant has suffered or is likely to suffer damage due to the act
of the defendant.
When a person makes a false trade description, s/he intends that the product
be taken for that of his/ her competitors.
(iii) any trade description which denotes or implies that there are contained, as
regards the goods to which it is applied, more yards or metres than there are
contained therein standard yards or standard metres; or
(c) is or are either the name or initials of a fictitious person or of some person
not bona fide carrying on business in connection with such goods; and the fact
that a trade description is a trade mark or part of a trade mark shall not
prevent such trade
description being a false trade description within the meaning of this Act;
(h) " High Court" means the High Court having jurisdiction under section 3;
(i) " limitations" (with its grammatical variations) means any limitations of the
exclusive right to the use of a trade mark given by the registration of a person
as proprietor thereof, including limitations of that right as to mode of use, as to
use in relation to goods to be sold or otherwise traded in within India, or as to
use in relation to goods to be exported to any market outside India;
(j) " mark" includes a device, brand, heading, label, ticket, name, signature,
word, letter or numeral or any combination thereof;
(l) " package" includes any case, box, container, covering, folder, receptacle,
vessel, casket, bottle, wrapper, label, band, ticket, reel, frame, capsule, cap, lid,
stopper and cork;
(m) " permitted use", in relation to a registered trade mark, means the use of a
trade mark--
(i) by a registered user of the trade mark in relation to goods- (a) with which he
is connected in the course of trade; and (b) in respect of which the trade mark
remains registered for the time being; and (c) for which he is registered as
registered user; and
(ii) which complies with any conditions or restrictions to which the registration
of the trade mark is subject;
(1) For the purposes of this Act, a record called the Register of Trade Marks
shall be kept at the head office of the Trade Marks Registry, wherein shall be
entered all registered trade marks with the names, addresses and descriptions
of the proprietors, notifications of assignments and transmissions, the names,
addresses and descriptions of registered users, disclaimers, conditions,
limitations and such other matters relating to registered trade marks as may
be prescribed.
(4) There shall be kept at each branch office of the Trade Marks Registry a copy
of the register and such of the other documents mentioned in section 125 as
the Central Government may, by notification 1 in the Official Gazette, direct.
(1) The register referred to in section 6 shall be divided into two Parts called
respectively Part A and Part B.
(2) The Register of Trade Marks existing at the commencement of this Act shall
be incorporated with and form part of Part A of the register, and this Part shall
comprise all trade marks entered in the Register of Trade Marks existing at the
commencement of this Act and all trade marks which after such
commencement may be entered in Part A of the register.
(3) Part B of the register shall comprise all trade marks which after the
commencement of this Act may be entered in Part B of the register.
(1) A trade mark may be registered in respect of any or all of the goods
comprised in a prescribed class of goods.
(2) Any question arising as to the class within which any goods fall shall be
determined by the Registrar whose decision in the matter shall be final.
(1) A trade mark shall not be registered in Part A of the register unless it
contains or consists of at least one of the following essential particulars,
namely:--
(2) A name, signature or word, other than such as fall within the descriptions
in clauses (a), (b), (c) and (d) of sub- section (1), shall not be registrable in part
A of the register except upon evidence of its distinctiveness.
(3) For the purposes of this Act, the expression" distinctive" in relation to the
goods in respect of which a trade mark is proposed to be registered, means
adapted to distinguish goods with which the proprietor of the trade mark is or
may be connected in the course of trade from goods in the case of which no
such connection subsists either generally or, where the trade mark is proposed
to be registered subject to limitations, in relation to use within the extent of the
registration.
(4) A trade mark shall not be registered in Part B of the register unless the
trade mark in relation to the goods in respect of which it is proposed to be
registered is distinctive, or is not distinctive but is capable of distinguishing
goods with which the proprietor of a trade mark is or may be connected in the
course of trade from goods in the case of which no such connection subsists,
either generally or, where the trade mark is proposed to be registered subject to
limitations, in relation to use within the extent of the registration.
(b) by reason of the use of the trade mark or of any other circumstances, the
trade mark is in fact so adapted to distinguish or is in fact capable of
distinguishing as aforesaid.
(1) A trade mark may be registered in respect of any or all of the goods
comprised in a prescribed class of goods.
(2) Any question arising as to the class within which any goods fall shall be
determined by the Registrar whose decision in the matter shall be final.
Limitation as to colour.
(1) A trade mark may be limited wholly or in part to one or more specified
colours, and any such limitation shall be taken into consideration by the
tribunal having to decide on the distinctive character of the trade mark.
(b) the use of which would be contrary to any law for the time being in force; or
(1) No word which is the commonly used and accepted name of any single
chemical element or single chemical compound (as distinguished from a
mixture) shall be registered as a trade mark in respect of a chemical substance
or preparation, and any such registration shall, notwithstanding anything in
section 32, be deemed for the purposes of section 56 to be an entry made in
the register without sufficient cause or an entry wrongly remaining on the
register, as the circumstances may require.
(2) This section shall not apply to a word which is used to denote only a brand
or make of the element or compound as made by the proprietor or a registered
user of the trade mark, as distinguished from the element or compound as
made by others, and in association with a suitable name or description open to
the public use.
mark, and may refuse to proceed with the application unless the applicant
furnishes the Registrar with such consent.
or the registered user conforming to the permitted use has applied the trade
mark and has not subsequently removed or obliterated it, or has at any time
expressly or impliedly consented to the use of the trade mark;
(2) Where the goods bearing a registered trade mark are lawfully acquired by a
person, the sale of or other dealings in those goods by that person or by a
person claiming under or through him is not an infringement of the trade mark
by reason only of the trade mark having been assigned by the registered
proprietor to some other person after the acquisition of those goods.
A Certain class of work is there in the Copyright Act and Copyright applies in
the following class of works –
The boundaries are uncertain which separates ideas and expression variation
based on the type of work involved. Literary and visual works have protected
elements i.e.
Visual work-The elements that necessarily flow from the subject matter
are out of the preview of protected elements of Visual Works.
Derivative work,
For example -
Copyright laws provide certain exclusive rights to the copyright holder, such as
the right to reproduce, distribute, display or perform the protected work, or to
make derivative works. Use of such copyright protected work without the
permission of the copyright owner is copyright infringement. In this article, we
look at copyright infringement in India.
The following are some of the most common types of copyright infringement:
- Making copies of copyrighted works for sale or hire or letting them for
hire.
If any of the activity is performed by a person or business, then they are liable
for prosecution under copyright laws in India.
The term “fair dealing” has not been defined in the Act. It is a legal doctrine,
which allows a person to make limited use of copyrighted work without the
permission of the owner.
The fair nature of the dealing depends on the following four factors:
In India the provisions of Section 52 of the Copyright Act, 1957 provide for
certain acts, which would not constitute an infringement of copyright namely
fair dealing with a literary, dramatic, musical or artistic work not being a
computer program for the purposes of-
criticism or review ,
the making of sound if made by or with the license or consent of the owner
of the right in the work
13. Patents
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, which also includes trademark
and copyright law.
Patent law centers round the concept of novelty and inventive step (or lack of
obviousness). The right which they accord is to prevent all others, not just
imitators but even independent devisors of the same idea from using the
invention for the duration of the patent. The special potential of a patent is
accordingly that it may be used to prevent all others from including any form of
invention in their product and services. A patent thus poses serious difficulties
for its competitors. This is why patents are not freely available for all industrial
improvements but only what is judged to qualify as a patentable invention.
What is patentable?
To qualify for a patent, the invention must meet three basic tests. First, it must
be novel, meaning that the invention did not previously exist. Second, the
invention must be non-obvious, which means that the invention must be a
significant improvement to existing technology. Simple changes to previously
known devices do not comprise a patentable invention. Finally, the proposed
invention must be useful. Legal experts commonly interpret this to mean that
no patent will be granted for inventions that can only be used for an illegal or
immoral purpose.
Some types of discoveries are not patentable. No one can obtain a patent on a
law of nature or a scientific principle even if he or she is the first one to
discover it. For example, Isaac Newton could not have obtained a patent on the
laws of gravity, and Albert Einstein could not have patented his formula for
relativity, E=mc2.
In India as per the Patent Act of 1970, an application for a patent may be made
by the actual inventor of the invention, or an assignee of the right to make an
application or a legal representative of either. It is the person who first applies
for a patent who is entitled to the grant. A prior inventor of the invention who
applies subsequently will not get the patent as against the first applicant. A
person who has merely communicated the idea to another, who actually gave
practical shape to the idea and developed the invention, cannot claim to be the
first and true inventor. A foreign national resident abroad is not prohibited
from making an application and obtaining a Patent in India.
14. Invention non-patentable
According to the Patent Act (of India), those that fall under the category of
“Inventions” can be patented, as defined in Section 2 (j) of the Act which
involves anything that is novel, capable of industrial application, and is not
frivolous (subject-matters eligible for patentability). However, those that cannot
satisfy such conditions (or restricts the scope of subject matters eligible for
patentability) are non-patentable as mentioned in Section 3 and Section 4 of
the Act.
Section 3 and Section 4 of the Patent Act is highly debatable and deals with
the list of exclusions that are non-patentable that do not satisfy the above
conditions. Following are not the “inventions” under the meaning of this act:
Example– Inventions that are against the natural laws that are any machine
giving 100% efficiency, or any machine giving output without an input cannot be
considered as obvious and cannot be patented.
(c) Inventions that are a mere discovery of something that already exists
in nature.
(d) The mere discovery of a form already existing in nature does not lead
to enhancement of efficacy.
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.
The mere discovery of any new property or use of a known substance is not
patented unless it is of greater efficiency than the original substance hence, the
mere incremental innovation does not fall under the gamut of patenting.
Explanation- playing a game such as chess, sudoku etc are not considered as
inventions rather these are mere brain exercises and hence are not patented.
Section 4 deals with inventions relating to atomic energy, that are also not
patentable and that fall within sub-section (1) of section 20 of the Atomic
Energy Act, 1962.
15. Revocation of Patent in India
The grounds for revocation of a patent under Section 64 of the Patents Act
1970 are as under:
b) that the patent was granted on the application of a person not entitled under
the provisions of this Act to apply therefore:
c) that the patent was obtained wrongfully in contravention of the rights of the
petitioner or any person under or through whom he claims;
d) that the subject of any claim of the complete specification is not an invention
within the meaning of this Act;
f) that the invention so far as claimed in any claim of the complete specification
is a. obvious or b. does not involve any inventive step, having regard to what
was publicly known or publicly used in India or what was published in India or
elsewhere before the priority date of the claim;
h) that the complete specification does not sufficiently and fairly describe the
invention and the method by which it is to be performed, that is to say, that
the description of the method or the instructions for the working of the
invention as contained in the complete specification are not by themselves
sufficient to enable a person in India possessing average skill in, and average
knowledge of, the art to which the invention relates, to work the invention, or
that it does not disclose the best method of performing it which was known to
the applicant for the patent and for which he was entitled to claim protection;
i) that the scope of any claim of the complete specification is not sufficiently
and clearly defined or that any claim of the complete specification is not fairly
based on the matter disclosed in the specification;
k) that the subject of any claim of the complete specification is not patentable
under this Act;
l) that the invention so far as claimed in any claim of the complete specification
was secretly used in India, otherwise than as mentioned in sub-section (3),
before the priority date of the claim;
m) that the applicant for the patent has failed to disclose to the Controller the
information required by section 8 or has furnished information which in any
material particular was false to his knowledge;
n) that the applicant contravened any direction for secrecy passed under
section 35 or made or caused to be made an application for the grant of a
patent outside India in contravention of section 39;
p) that the complete specification does not disclose or wrongly mentions the
source or geographical origin of biological material used for the invention;