Intellectual

Property Rights

Definition
Intellectual Property refers to creation of
mind i.e. inventions, industrial designs
for articles, literary & artistic work,
symbols etc. used in commerce.

Intellectual property is divided into two

categories:
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,
plays, films and musical works etc.
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TRIPS
The Agreement on
Trade-Related
Aspects of Intellectual Property Rights
(TRIPS)
An international agreement administered
by the World Trade Organization (WTO)
that sets down minimum standards for
many forms of intellectual property (IP)
regulation as applied to nationals of other
WTO Members.

TRIPS
According to the TRIPS Agreement, the
intellectual property has been classified
into- Patents, Industrial Designs, Trade
Marks,
Copyright,
Geographical
Indications, Layout Designs of Integrated
Circuits, Protection of Undisclosed
Information/Trade Secrets. Different IP
Rights vary in the protection they provide.

PATENTS
A Patent is an intellectual property right
relating to inventions and is the grant of
exclusive right, for limited period, provided
by the Government to the patentee, in
exchange of full disclosure of his
invention, for excluding others, from
making, using, selling, importing the
patented product or process producing
that product for those purposes.

Why patent?
The purpose of this system is to
encourage inventions by promoting their
protection and utilization so as to
contribute to the development of
industries, which in turn, contributes to
the
promotion
of
technological
innovation and to the transfer and
dissemination of technology.

Patent right is territorial in nature and a

patent obtained in one country is not
enforceable in other country. The
inventors/their assignees are required to
file separate patent applications in
different countries for obtaining the
patent in those countries.

Legislation in India
The Patent System in India is governed
by the Patents Act, 1970 (No. 39 of
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.

Administration
The Patent Office, under the Department of
Industrial Policy & Promotion, Ministry of
Commerce & Industry, performs the statutory duties
in connection with the grant of patents for new
inventions and registration of industrial designs.
Patent Offices are located at Kolkata , Mumbai,
Chennai and Delhi to deal with the applications for
patents originating within their respective territorial
jurisdictions.

Intellectual Property Training Institute (IPTI)

located at Nagpur provides training to the officials
of IP offices and other users of the system who are
working in the field of Intellectual Property Rights.

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International Treaties
India is a member-state of World Intellectual
Property Organisation (WIPO), an International
Organisation, responsible for the promotion of the
protection of intellectual property throughout the
world. India is a member of the following
International Organisations and Treaties in
respect of Patents:
a) World Trade Organization (WTO) with effect from
01-01 -1995.
b) Convention establishing World Intellectual
Property Organisation, (WIPO).
c) Paris Convention for the protection of Industrial
Property with effect from Dec.7, 1998.
d) Patent Co-operation Treaty (PCT) with effect from
Dec.7, 1998.
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Who may apply

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.

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Precautions for
applicants
The first to file system is employed, in
which, among persons having filed the
same invention, first one is granted a
patent, therefore, a patent application
should be filed promptly after conceiving
the invention.
It is common experience that through
ignorance of patent law, inventors act
unknowingly and jeopardize the chance of
obtaining patents for their inventions.

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Precautions for
applicants
The most common of these
indiscretions is to publish their
inventions
in
newspapers
or
scientific and technical journals,
before
applying
for
patents.
Publication of an invention, even by
the inventor himself, would (except
under certain rare circumstances)
constitute a bar for the subsequent
patenting of it.
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Precautions for
applicants
Similarly, the use of the invention
in public, or the commercial use of
the invention , prior to the date of
filing patent application would be a
fatal objection to the grant of a
patent for such invention.
There is, however, no objection to
the secret working of the invention
by way of reasonable trial or
experiment, or to the disclosure of
the
invention
to
others,
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confidentially.

Precautions for
applicants
Waiting until their inventions are fully
developed for commercial working, before
applying for patents is a mistake.
It is, therefore, advisable to apply for a patent
as soon as the inventor's idea of the nature of
the invention has taken a definite shape.

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Precautions for
applicants
It is permissible to file an application for
a patent accompanied by a "Provisional
Specification" describing the invention.
The application may, therefore, be made
even before the full details of working of
the invention are developed. The filing of
an application for a patent disclosing the
invention would secure priority date of
the invention, and thereby, enable the
inventor to work out the practical details
of the invention and to file complete
specification within 12 months from the
date of filing of provisional specification.
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What is not patentable

The following are Non-Patentable inventions
within the meaning of the Act: an invention which is frivolous or which claims
anything obviously contrary to well established
natural laws;
an invention the 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;

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What is not patentable

the mere discovery of a scientific principle or the
formulation of an abstract theory (or discovery of
any living thing or non-living substances occurring
in nature);
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 mere 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
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What is not patentable

the mere arrangement or re-arrangement
or duplication of known devices each
functioning independently of one another
in a known way;
a method of agriculture or horticulture

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What is not patentable

any process for the medicinal, surgical, curative,
prophylactic, diagnostic, therapeutic or other
treatment of human beings or any process for a
similar treatment of animals to render them free
of disease or to increase their economic value or
that of their products.
plants and animals in whole or any part thereof
other than micro-organisms but including seeds,
varieties and species and essentially biological
processes for production or propagation of plants
and animals;
a mathematical or business method or a
computer programme per se or algorithms
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What is not patentable

literary, dramatic, musical or artistic work or any
other aesthetic creation whatsoever including
cinematographic
works
and
television
productions;
a mere scheme or rule or method of performing
mental act or method of playing game;
a presentation of information;
topography of integrated circuits;

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What is not patentable

An invention which in effect, is traditional
knowledge or which is an aggregation or
duplication of known properties of traditionally
known component or components.
Inventions relating to atomic energy and the
inventions prejudicial to the interest of security of
India.

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What is patentable
The invention to be patentable
should be technical in nature and
should meet the following criteria :
Novelty
Inventive step
Industrial applicability

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Term of patent
Term of every patent will be 20 years from the
date of filing of patent application, irrespective
of whether it is filed with provisional or
complete specification. Date of patent is the
date on which the application for patent is filed.

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Post grant opposition

Any interested person can file notice of
opposition (along with written statement
and evidence, if any) anytime after the
grant of Patent but before the expiry of a
period of one year from the date of
publication of grant of a Patent in the
Patent Office Journal

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Rights of patentee
Prevent others from performing, without
authorisation, the act of making, using, offering
for sale, selling or importing that product for the
above purpose.
Where a patent covers a process, the patentee
has the exclusive right to exclude others from
performing, without his authorisation, the act of
using that process, using and offering for sale,
selling or importing for those purposes, the
product obtained directly by that process in
India.
4/19/15

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Procedure for the Grant of

Patent
After filing Patent Application in India, a
Request for Examination is filed with the Patent
Office
Thereafter the application is examined by
patent office and objections, if any, are raised
thereto.
After removal of all the objections, the Patent is
granted and is advertised for Opposition
Purposes.
The Patent is Open for third party
opposition(s), if any, for a period of ONE YEAR
from the date of advertisement.
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 To keep the patent in force, Renewal fee

is to be paid every year.

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Specifications should include

1) Title of invention,
2) Field of invention,
3) Background of invention with regard to the drawback
associated with known art,
4) Object of invention,
5) Statement of invention,
6) A summary of invention,
7) A brief description of the accompanying drawing,
8) Detailed description of the invention with reference to
drawing/examples,
9) Claim(s),
10) Abstract.

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Some Issues-product Vs Process

Patent
From 1972 to 2003, India only allowed process
patents, which meant that even a patented
product could be produced by someone other
than the patent-holder if they could find a
different method to manufacturing it. However,
in 2005 the law was amended retrospectively
to allow for product patents so that India could
be compliant with the World Trade
Organisation's Agreement on Trade-Related
Aspects of Intellectual Property Rights
(TRIPS).

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But even before the law was amended,

India agreed to invite applications for
product
patents under theTRIPS
agreement.
These
"mailbox"
applications were opened in 2005 when
the law was finally enacted. Novartis
filed an application for patent for Glivec,
the blood cancer drug, under the
mailbox provision.

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Some issues- patenting

of Neem
In 1995, US MNC W R Grace and United States
Department of Agriculture was granted patent by EPO
for neem-based bio-pesticides, including Neemix, for
use on food crops. Neemix suppresses insect feeding
behaviour and growth in over 200 species of insects.
India claimed that fungicidal qualities of the neem tree -a traditional plant known for its medicinal properties -and its use has been known in India for over 2,000
years.
India finally won the decade-long battle in 2000
In the United States 'prior existing knowledge' is only
recognised if it is published in a journal -- not if it has
been passed down through generations via oral and folk
traditions.

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TRADE /SERVICE MARK

A Trade/ Service mark means a mark capable of
being represented graphically and which is
capable of distinguishing the goods or services of
one person from those of others and may include
shape of goods, their packaging and combination
of colours.

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Trademark
RENEWAL :
The Trade Mark once registered has to be
renewed after every 10 years.
TERM OF TRADE MARK :
UNLIMITED - as long as it is renewed as per
law.

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COPYRIGHT
Copyright means the exclusive right to do &
authorise to do certain acts in relation to
artistic, literary, dramatic, musical works,
cinematographic film, sound recording and
software
The Copyright vests in original work in
whatever form it may be, i. e. , literary, artistic,
etc.
The registration of Copyright in India is not
mandatory but useful in courts where civil and /
or criminal proceeding can be taken to protect
it.
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Geographical Indications
A products quality, reputation or other
characteristics can be determined by
where it comes from. Geographical
indications are place names (in some
countries also words associated with a
place) used to identify products that
come from these places and have these
characteristics
(for
example,
Champagne, Tequila )

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Why was Novartis denied a

patent for Glivec in India?
The key issue revolved around whether Glivec was a "new
product" under the terms of the law. In January 2006, the
Indian patent office ruled that the drug was not substantially
different from one for which patents had already been given
in the US and Europe. Thus, it did not pass the novelty test.
While moving to the new patent regime, Indian lawmakers
had inserted a provision section 3(d) in the Patents Act
to check against 'evergreening'.
This is the term used to describe a practice under which
firms slightly tweak an existing process or product to seek a
fresh patent once the original protection expires. This helps
them retain monopoly rights for a longer period. The patent
office's ruling was upheld by the
Intellectual Property Appellate Board (IPAB) and later by
the Supreme Court.

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4/19/15

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