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Priyanshu Sanganeria

Priyanshu19043 Ans.1.Any original creation by human intellect whether artistic, literary, technical or scientific creation comes under the purview of IP. No nation can develop itself without the help of its citizens intellect, & to thrive & prosper the people must continuously innovate and bring new ideas forward. In the era of computer technology, copying things have become faster and much easier and feasible. An innovation which is generally developed over years with hard-work and a great risk, if successful, should be used for the development of the people, but the person behind the idea should also be recognized in this respect and must be awarded suitably. Thus, keeping in mind that if the inventor is not rewarded few people would have the courage to innovate, state protect the rights of their citizen and provide them with rights over their innovation so as to reap benefits from their innovation. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time.In the current scenario it is important to protect IP due to the following reasons:-

(i) Increasing global competition (ii) Vanishing geographical barriers to trade (iii) Emergence of rapidly changing technologies (iv) Shortening of product life cycle necessitating quick introduction of new products (v) Need to make high investment on R&D, production, marketing etc. (vi) Need for human resources with a high level of skills. As per TRIPS agreement, the following IP right are namely identified: Patents- Patent refers to recognition awarded to a n invention which is genuine and which satisfies the requirements of global novelty and wide application. After the recent amendment of Indian Patents Act,1970, term of patent is 20 years from the date of filing a patent application. Copyrights- Copyright is awarded to and idea, compulsorily in tangible form, but not to idea itself. It is awarded to literary, dramatic, audio-visual and similar works. Trademarks- A trademark is any word, symbol or name or a combination thereof used by persons to distinguish their goods and services, including a unique product, from those manufactured or sold by others, ant to indicate the source of goods/services. Registered (industrial) design-It is awarded for the protection of external shape, appearance and configuration of an article Protection of IC layout design-It is associated eith protection of mask designs in ICs. Geographical indications-It is a name given to a product identifiable with a specific geographical location known for the uniqueness of its product.

Protection of undisclosed information-It is generally a trade secret or confidential information. It is covered under the Contract Act, 1872. As patent recognizes the need of the hour,i.e, innovation for the progress and development of a nation and every living being as well, it can be regarded as the most significant IP Ans.2. Ministry of Science and Technology issued the guidelines "Instructions for Technology Transfer and Intellectual Property Rights" in March 2000, which would help in enhancing the motivation of scientists, research Institutions and universities in projects funded by the Department of Science and Technology, Department of Biotechnology, Department of Scientific and Industrial Research and Department of Ocean Development. The salient features of the guidelines are: The owner institution is permitted to retain the benefits and earnings generated out of the IPR. The institution may determine the share of inventor(s) and other persons from such actual earnings. However, such share shall be limited to one third of the actual earnings. The owner institution shall set apart not less than 25% of the revenue generated from IPR to create a Patent Facilitating Fund which shall be utilized by the institution for updating inventions, filing new patent applications and protecting IP rights against infringement, and for building competency in the area of IPR and related issues. Institutions shall be encouraged to seek protection of intellectual property rights in respect of the results of R&D. They may retain the ownership of such IPR. Here `Institutions' mean any technical, scientific or academic establishment where research is carried out through funding by the central and / or the state governments. IPR is a strong tool, to protect investments, time, money, effort and the like invested by the inventor/creator of an Intellectual Property, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in a way, aids the economic development of a country by promoting healthy competition and encouraging industrial

development and economic growth. Further it also enhances technology advancement in the following ways: a. it provides a mechanism of handling infringement, piracy and unauthorized use b. it provides a pool of information to the general public since all forms of IP are published except in case of trade secrets . A spurt in interest about intellectual property rights (IPR) has been visible in the country for almost the last 15 years. The recent interest started with a curiosity and an element of apprehension but it has now graduated to a need-based compulsion and desire to play the new game introduced with the formation of the World Trade Organization (WTO) and the introduction of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With the opening up of trade in goods and services, the IPRs have become more susceptible to infringement without adequate return to the creators of knowledge. There has been a quantum jump in Research and Development (R&D) costs with an associated jump in investments required for putting a new technology in the market place. The stakes of the developers of technology have become very high and hence the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D. Globalization, multilateral trade and new economic order are continuously reducing the geographical barriers to trade rendering the global trade very complex. IPRs become important parameters influencing trade. Therefore, one expects that a large number of IP rights would be generated and protected all over the world including India. The current importance of IPRs is dictated by the following reasons: (i) Technologies are changing rapidly, (ii) Product life cycle is becoming shorter, (iii) Investments on R&D, production, marketing have become very high, (iv) Human resources should possess high level of skills, and (v) The industry is becoming very competitive.
Ans.3. -Copyright is awarded to and idea, compulsorily in tangible form, but not to idea itself. It is awarded to literary, dramatic, audio-visual and similar works. In a recently adopted treaty on copyrights at the Diplomatic Conference of WIPO held on December 20, 1996, two new obligations have been introduced. The obligations concerning technological measures demand that "each contracting state shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this treaty or the Berne Convention and that restrict acts, in respect of their works which are not authorized by the authors concerned or permitted by law. This means that for decrypting the work of an author it is necessary to first obtain his permission. A work copyrighted in a member country of Berne Convention automatically becomes copyright in other member countries as well and thus requires no separate

registration. Internet being a public domain, any information uploaded on interbet need to be copyrighted. When one uses internet, he has to deal with various parties viz., Internet service provider, content provider, consumer who downloads the information, bulletin board service provider,etc.Thus, in case of infringement, it becomes very to difficult to find the infringer as the transaction is already very complex involving multi-parties, who may be present in different nations. Also the transaction becomes more complex when the data is a collection of copyrighted works is transacted. There are three kinds of remedies available: Civil-Civil remedies include injunction, damages and accounts, delivery of infringing copies and damages for conversion. Sections 54 to 62 deals with civil remedies for infringement of copyright. Criminal-As per section 63, a person who, knowingly infringes or abets the infringement of(a) the copyright in a work, or (b) any other right conferred by the Act (except the right conferred by section 53A, which is the right to share in the resale price of the original copy will be punished with imprisonment for a minimum term of six months and a maximum of three years and with a fine which may vary from a minimumof 50,000 rupees to two lakh rupees, is indulged in criminal offence. Administrative-The Act provides for an effective administrative remedy to prevent importation into India of copies of a copyright work made outside India, which if made in India, would infringe the copyright in the work. Section 53 of the Act empowers the Registrar of Copyright to make an order prohibiting the importation into India of such copies on the application of the owner of the copyright in any work, or his duly authorized agent, after making such enquiry as he deems fit. The Registrars order prohibiting such import brings into play the provisions of the Customs Act as goods the importation of which is banned in the Act. The only difference is that the copies confiscated under this provision do not vest in the Government of India but are to be delivered to the owner of copyright in the work. Ans. 4. Procedure for filing patent is as follows: File the prescribed form with the prescribed fees. Publish in the Official Gazette within 18 months and request for substantive examination If the outcome of hearing is in favor regarding any objections application will be accepted Then notify in the official gazette. If no opposition, then Patent will be granted. The essentials for obtaining a patent are:(i) Novelty- There is three types of novelty: a. Absolute novelty: where the design or invention must not be used or published anywhere in the world

b. Relative novelty: meaning that the design or invention must not have been published anywhere in the world and should not have been used in India (or the country where the protection is sought) c. Territorial novelty: requiring the design or invention should not have been published or used within the country. India follows the concept of relative novelty which means an invention should not have been used in India or published anywhere in the world. However, with regard to the term published anywhere in the world, absolute novelty prevails. (ii) Inventive step- Inventive step is defined as a feature of an invention that involves technical advance as compared to the existing knowledge. (iii)Capable of Industrial Application- It means that the invention should be capable of being made or used in an industry. Ans.5. After WTO agreement was signed major changes were brought about in the provisions and laws so as to bring them at par with international laws and for facing the new challenges emerging from the newly agreed-upon multi-lateral trade regime. Indias laws relating to IPR were enacted in1856.Since then the world economy, technology and other issues have come a long way. As per this agreement India got a transition time of 10 years for bringing her laws accordingly as per TRIPS, keeping in mind that India is a developing nation. It can be said that it is not an easy task considering that India is largest democracy in the world and has to work hard to bring awareness amongst its people and also the process of having a bill passed from both houses of Parliament has to be gone through. The major changes may be summed up as follows: The Patent Act, 1970, which replaced pre-Independence laws, has been since then revised many times(the latest being in 2005) to make them compliant with TRIPS. A new Trademark, 1999 has been enacted. The Copyright Act, 1957 which has also been revised many times(the latest being in 1999). Design Act,2000 replaced previous Design Act,1911 The Semi-conductor Integrated Circuit Layout Design Act,2000 has been made for protection of IC layouts. Also India is now a member of Paris Convention, The Budapest Treaty and The Patent Cooperation Treaty. India being a market so large, that every MNC wants to have a participation in its development, has to prepare itself and strengthen its laws for the development it wants to achieve.