Intellectual Property Rights Law In India (Part - 1) - Industrial Laws | Industrial Laws - B Com PDF Download

Introduction

Property and intellectual property​

Property is corporal property and incorporeal property or tangible property and intangible property. Corporeal property indicates the material, tangible things owned by the human being, organizations, associations etc. they are the physical objects and hence they are perceptible by touch. While incorporeal property is intangible which, can be a subject matter of right. Such property does not have a physical existence and hence cannot be perceived by touch. From this point of view, actionable claims, goodwill, easementary rights, intellectual property rights are considered as intangible or incorporeal property.

Intellectual property is a right pervading some material object. The intangible products of a man’s brain are as valuable as his land, building, goods, money, belongings etc. it is quite different from real property or a formal property. In fiction, it is a property. Hence it is called as intellectual property. The rights relating to the intellectual property are recognized by law as the subject matter of rights of various intangible or immaterial products is human intelligence, skills and labor. In short intellectual property is basically a creation of intellect or relates to intellect. Intellectual property rights are legal rights which govern the use of creations of the human mind and work.

The nature of intellectual property is as,

• Intellectual property is only a property in fiction or a fictional property and not a real property though it is pervading some real property.
• Intellectual property includes the right relating to scientific discoveries, industrial designs, trademarks, service marks, literary, artistic and scientific works and all other rights resulting from intellectual activity in the industrial, scientific, literacy or artistic field.
• Intellectual property rights are legal rights governing the use of creations of the human mind. Legal protection is granted to the owner or creator of the Intellectual property under different acts such as Patents act, Trademarks act etc.
• Intellectual property can be divided mainly into four kinds or types i.e.
  • Patent rights
  • Copy rights
  • Trademarks right
  • Design rights 
• Intellectual property rights are protected under related acts.
• The owner of an intellectual property can earn income by selling the rights of using the same. Such rights can be confined or extended to some prescribed period according to the provisions of the related acts.

Patent 

Section 2(m) of the Patent Acts, 1970 defines patent as a Patent for any invention granted under this act. A grant from the Government to the invertors for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patents, anybody could use the invention.

Invention

Section 2(i) defines invention as a new product or process involving an inventive step and capable of industrial application. Invention means any new and useful,

1. Art, process, method or manner of manufacture machine, apparatus or other article.
2. Substance produced by manufacture and includes any new and useful improvement of any of them, and alleged invention.

Under Patent act, the invention to be patentable should meet the following criteria as,

1. Novel: the invention disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
2. Invention: the invention is not obvious to a person skilled in the art in the light of the prior publication/ knowledge/ document but as a new product or process involving an inventive step
3. Industrial applicable: invention should possess utility, so that it can be made or used in the industry. 

Inventions not patentable 

Section 3 provides for inventions that are not patentable, they being

1. Invention which is against natural law.
2. Causes injury to human, animal or plant life or health or to the environment.
3. Mere discovery of a scientific principle.
4. Mere discovery of thing occurring in nature.
5. Mere discovery of a new form of a known substance.

Section 5 provides where only methods or processes of manufacture patentable, they being, 

1. Claiming substances intended for use, or capable of being used as food or as medicine or drug, or
2. Relating to substances prepared or produced by chemical processes, no patent shall be granted in respect of claims for the substances themselves, but claims for the methods or processes of manufacture shall be patentable.

The world Intellectual property organization that is WIPO is very important international organization which is engaged in the field of promote and protection of Intellectual property and right therein.

According to the article 2 (VII) of the convention established the WIPO, Intellectual property includes certain rights. There are some of such important rights relating to the following matters,

1. Invention in all fields of human Endeavour
2. Scientific discoveries,
3. Literary, artistic and scientific works,
4. Industrial designs,
5. Trademarks and service marks for marketing the products,
6. Protection against unfair competition,
7. Various other rights resulting from intellectual activities in the industrial, scientific or artistic fields. 

Advantages of Patents 

1. The patentee gets the exclusive right under this act to use his invention. His rights relating to this patent registered under this act are well protected
2. The patentee gets the right to bring a suit for any infringement of his patent and to pray for an injunction, damages or an account of profits against a person who infringes his patent.
3. If the patentee has no means or if he is not himself in a position to work the invention patented commercially, he can sell it and grant licenses to some other capable person or persons to exploit the same and thereby earn income.
4. The holder of an exclusive license gets the rights of a patentee and he can enforce such rights by taking proceedings against the infringement of the patent. “Exclusive licensee” means a license from a patentee which confers on exclusion of all other persons (including the patentee) any right in respect of the patented invention and exclusive license shall be construed accordingly section 2 (f).
5. A patentee gets the right to make improvements in or modifications of an invention described or disclosed in the complete specification of the main invention and obtain the grant of a patent for the improvement or modification as a patent of Addition.

Intellectual property legislations in India

India is a member of almost all international conventions. The obligation of the member state arising out of the conventions can be enforced on the basis of reciprocity only. No right or obligation is enforceable unilaterally. Therefore to pass own laws on Intellectual property is in the interest of every country. In 1999, a considerate passage of major legislations with regard to protection of Intellectual property rights in harmony with international practices and in compliance with India’s obligations under TRIPS. These include,

1. The Patents (Amendment) Act, 1999 to amend the patents act of 1970 that provides for establishment of a mailbox system to file patents and accords exclusive marketing rights for five years.
2. The Trade marks Act, 1999 which repealed the Trade and Merchandise Act, 1958
3. The Copyrights (Amendment) Act, 1999.
4. A sui generis legislation for the protection of geographical indications called the Geographical Indications of Goods (Registration and protection) Act, 1999.
5. The Industrial Designs Act, 2000 which replaced the Designs act, 1911.
6. The patents (Second Amendment), 1999 further to amend the Patents Act, 1970. 

This was a beginning of a new era in the field of Intellectual property. To streamline and strengthen the Intellectual property administration system in the country the government has taken several measures. Projects relating to the modernization of patent information services and trademarks registry have been implemented with the help from WIPO/UNDP. The government has implemented projects for upgrading of patent office’s incorporating several components such as human resource development, recruiting additional examiners, infrastructure support and strengthening by the way of computerization and re-engineering work practices and eliminating backlog of patent applications, an amendment to the patent rules also was notified to simplify the procedural aspects. The first Indian patent laws were first promulgated in 1856. From time to time these were modified. New patent laws Indian Patent Act 1970 were made after the independence. The Act has now been radically amended to become fully compliant with the provisions of TRIPS. The most recent amendment was made in 2005 which were preceded by the amendments in 2000 and 2003. 

India’s journey to intellectual property right protection:

Introduction to Origin of Patent System

In 1300s, the first person who found resources in the Alps dictated property rights for mining, timber and water. As competition progressed special privileges were granted for useful creation. In 1409, first patent was granted to a German for the construction of a model mill. A monopoly by the British was not granted to sell playing cards due to obviousness. The first English patent was granted for a period of 20 year to John of Utynam on making stained glass. Meanwhile, the French advanced the system by registration and examination. In the United States, a patent was granted for a grain elevator 'hopper boy' to Oliver Evans. 

In the Indian context, in 1856, the Act VI [1] on protection of inventions based on the British Patent Law of 1852 was established. During this period certain privileges were granted to inventors of new manufacturers for a period of 14 year. In 1859, the act was modified as Act XV in which making, selling, using of inventions in India and authorizing others to do so for 14 year from the date of filing the specification. In 1872, the act was renamed as The Patents and Design Protection Act, in 1883 as The Protection of Inventions Act, in 1888 consolidated as The Inventions and Designs Act and in 1911 as the Indian Patent and design act.

Reasons for the Origin of Paris Convention, BIRPI

Primarily, inventions were kept covert so that it is well protected. As technology developed periodically, as a matter of national prestige the inventions were exhibited. At the Paris exhibition in 1867, Germany received the first genuine recognition as an industrial nation. During the 1873 Vienna exhibition, it was the Americans who refused to participate. The reason was that the Americans need intellectual protection of their creations from German nations so that the ideas are well protected. This led to the origin of Paris convention in 1883. This international treaty helped people of one country to protect their creations in another country, provided the other country is also a member of the convention. The main advantage is that the inventor has the right of priority of his invention. This in turn was the origin of the protection of industrial property in different countries. In 1893, in order to carry out the administrative tasks, an international organization called United International Bureaux for the Protection of Intellectual Property (BIRPI) was established in Berne, Switzerland. 

Reasons for Formation of GATT and WIPO

After World War II, economy in many European and Asian countries was shattered. After the UNO was born, three bodies were born in 1947, i.e., World Bank, International Monetary Fund (IMF) and International Trade Organization (ITO). It was the US senate, which blocked the ITO. The objective of these organizations was to revive the economy especially in developing countries. It was in the same year India signed General Agreement on Tariffs and Trade (GATT). The agreement was designed to provide international free trade within member states by regulating and reducing tariffs on traded goods. The main objective was to encourage trade. On January 1, 1948, 23 contracting states including India ratified GATT. Mean while, with the increasing awareness of the intellectual property, in 1960, in order to bring closer to United Nations and other international organizations, BIRPI was shifted from Berne to Geneva. In 1967, in order to modernize and for better administration of the unions with respect to protection of the intellectual property and artistic works, while fully respecting the independence of each of the union, World Intellectual Property Organization (WIPO) replaced the BIRPI.

Role of GATT

It was under GATT, the biggest advancement in international trade liberalization have come in to existence through multilateral trade negotiations. The role of GATT is to provide a stable and predictable international trade system. Secondly, it acts as a mediator in settling the disputes between countries regarding trade. Thirdly, it holds frequent negotiations, encourages reductions in tariffs so that expansion in world trade becomes possible. The objective of India signing the GATT agreement is to export indigenous products and in turn purchase oil, industrial raw materials, machines, new technology and other things that are domestically needed. During 1950s and 1960s, continuous reductions of tariffs led to high rate of world trade growth. Thus in the GATT era, trade liberalization helped in trade growth consistently instead production growth.

Role of WIPO

The role of WIPO is to promote international cooperation with respect to creation, dissemination, use and protection of works of the human mind for economic, social, cultural progress of all mankind. It enhances a worldwide balance of the creation i.e., by protecting moral, material interests of the creators and providing access to the socio-economic and cultural benefits to others. WIPO promotes protection of intellectual property and bring out cooperation among the union. In addition to these, WIPO sets norms, standards and execute legal technical assistance, registration activities for intellectual property protection to member countries. It is the WIPO; which is responsible for the formation of Patent Co-operation Treaty (PCT).

Reasons for Formation of PCT (Patent Cooperation Treaty)

Basically, under the traditional patent system, the inventor has to file applications in each and every country where he wishes to possess a patent. The Paris Convention provided a great opportunity in claiming the priority date of an earlier application for the subsequent filings in foreign countries if the parent and foreign countries are members of the convention. The advantage with the Paris Convention is that, the inventor after filing a patent in his/her owns country can decide within a period of 12 months whether to file patent applications among Paris Convention countries. This in turn means that the inventor if wishes to file patent application in foreign countries; within a period of 12 months he/she has to make all the necessary arrangements of language translations, filing of patent applications in all the countries, bare fees of patent offices, attorney's. To overcome the problem of duplication, BIRPI/WIPO came out with a new treaty called Patent Cooperation Treaty in 1970. PCT became an international cooperation treaty with respect to filing, searching, and examination of patent applications and dissemination of the technical information contained in it. 

Role and Objective of PCT

Patent Cooperation Treaty brings out several benefits for the users of patent system i.e., brings one application filing with one single language which in turn is valid in PCT member countries, provides single time examination of the patent instead each member country, provides international search rather than each country search so that prior art can be easily judged in order to get a patent, provides international publication of international publications with related international search reports, bring down one single communication to all designated offices, provides any person from the member country to file single opposition regarding the patentability of the invention, provides uniform procedure and economical benefit to the inventor in all mentioned aspects. In addition to these the main objective of PCT is to facilitate and accelerate access by industries and other sectors to technical information relating to inventions and to assist developing countries in gaining access to technology.

Reasons for the Patents Act, 1970

The major sources of the medicine for India were from foreign countries. Medicines required for human cure were not easily obtained to the common human being in India. The lack of indigenous medicines and their huge demand led to very high prices. It was the external law that influenced the local law. Drug prices in India were amongst the highest in the world. In 1957, the Indian Government appointed Justice Rajagopala Ayyangar committee to revise the patent law to comply with the industrial needs. The report suggested for a process patenting so that the medicines reach even the poor sections of the society. The government vested the Patents Act in 1970. This revolutionized the economic system in India by providing the medicine at a low price. 

Look on the Patents Act, 1970

One should evaluate the Patents Act, 1970 and understand how different aspects of intellectual property were considered at that moment. Section 3, 5 of the Patents Act, 1970 mentions that inventions that are frivolous, obvious, exploiting commercially to public, immoral, prejudice to human, animal, plant life or health or to the environment, scientific principles, abstract theories, identified to possess new use for a known substance, known process, known machine or known apparatus, aggregation of the properties by admixture and process for production of such substances, arrangement or re-arrangement or duplication of known devices, methods of agriculture, horticulture, processes for the medicinal, surgical, curative, prophylactic or other treatment of human beings, animals to render them free of disease or to increase their economic value or that of their products, a mathematical or business method or a computer programme per se or algorithms, literary, dramatic, musical, artistic work, cinematographic works, television productions, rule or method of performing mental act, method of playing game, presentation of information, topography of integrated circuits, aggregation or duplication of known properties of a traditional knowledge, atomic energy, claiming substance intended for use, or capable of being used, as food or as medicine or drug, or substances prepared or produced by chemical processes are not patentable.