IPR-Intellectual Property Rights

Introduction
Intellectual property (IP) is a legal field that refers to creations of the mind such as musical,
literary, and artistic works; inventions; and symbols, names, images, and designs used in
commerce, including copyrights, trademarks, patents, and related rights. Under intellectual
property law, the holder of one of these abstract “properties” has certain exclusive rights to the
creative work, commercial symbol, or invention by which it is covered.

Intellectual property rights are a bundle of exclusive rights over creations of the mind, both artistic
and commercial. The former is covered by copyright laws, which protect creative works such as
books, movies, music, paintings, photographs, and software and gives the copyright holder
exclusive right to control reproduction or adaptation of such works for a certain period of time.

The second category is collectively known as “industrial properties”, as they are typically created
and used for industrial or commercial purposes. A patent may be granted for a new, useful, and
non-obvious invention, and gives the patent holder a right to prevent others from practising the
invention without a license from the inventor for a certain period of time. A trademark is a
distinctive sign which is used to prevent confusion among products in the marketplace.

An industrial design right protects the form of appearance, style or design of an industrial object
from infringement. A trade secret is an item of non-public information concerning the commercial
practices or proprietary knowledge of a business. Public disclosure of trade secrets may
sometimes be illegal.

The term “intellectual property” denotes the specific legal rights described above, and not the
intellectual work itself.

The importance of intellectual property in India is well established at all levels- statutory,
administrative and judicial. India ratified the agreement establishing the World Trade
Organization (WTO). This Agreement, inter-alia, contains an Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS) which came into force from 1st January 1995. It
lays down minimum standards for protection and enforcement of intellectual property rights in
member countries which are required to promote effective and adequate protection of intellectual
property rights with a view to reducing distortions and impediments to international trade. The
obligations under the TRIPS Agreement relate to provision of minimum standard of protection
within the member countries legal systems and practices.
The Agreement provides for norms and standards in respect of following areas of intellectual
property:
 Copyrights and related rights
  Trade Marks
 Geographical Indications
 Industrial Designs
 Lay out Designs of Integrated Circuits
 Protection of Undisclosed Information (Trade Secrets)
 Patents
 Plant varieties
Essential Elements of Intellectual Property Rights
IPR is a broad term for covering –
1) Patents for inventions

2) Copyrights for material

3) Trademarks for broad identity and

4) Trade secrets

In general these properties are termed as “Intellectual Property”.  Intellectual Property is an asset
that can be bought or sold, licensed and exchanged.  But of course unlike other properties,
intellectual property is intangible; rather it cannot be identified by its specific parameters.  These
properties are protected on a national basis.

1) PATENTS
 A patent  is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a
limited period of time in exchange for detailed public disclosure of an invention. An invention is a
solution to a specific technological problem and is a product or a process.
 A government authority or license conferring a right or title for a set period, especially the sole
right to exclude others from making, using, or selling an invention.
This refers to innovations – new or improved product and processes which are meant for
industrial applications.  This is a territorial right which requires registration for a limited time. 
Patent is a contract between an inventor as an individual and the society as a whole.  The
inventor has exclusive right to prevent anybody making use of and/or selling a patented
invention.  Of course, this is only for a specific duration till the inventor discloses the details of
invention to the public.

The legal authority in this patent right is the World Trade Organization (WTO) agreement with
respect to Trade Related Aspects of Intellectual Property Right (TRIPS).  This offers the
international standard for the required duration of 20 years from the date of filing the patent. 
Once this period is over, people are free to make use of this invention as they like.  However,
though the member has a right to prevent others making use of his patented invention, the owner
has no right to make use or sell the invention itself.  Patents are granted under national laws and
these rights are enforceable by civil laws rather than criminal proceedings.

Conditions to be satisfied by an invention to be Patentable:

1. Novelty
2. Inventiveness(Non-obviousness)
3. Usefulness
1. Novelty

A novel invention is one,which has not been disclosed,in prior art where prior art means
everything that has been published,presented or otherwise disclosed to the public on the date of
patent.

2. Inventiveness(Non-Obviousness)

A patent application involves an inventive step if the proposed invention is not obvious to a
person skilled in the art i.e skilled in the subject matter of the patent application.

3. Usefulness

An invention must posses utility for the grant of patent.No valid patent can be granted for an
invention devoid of utility.

Patentable Inventions under the Patents Act,1970

a) Art,process,method or manner of manufacture.

b) Machine,apparatus or other article,Substances produced by manufacture,which include any

new and useful improvements of any of them and an alleged invention.

c) Inventions claiming substance intended for use,or capable of being used,as food or as
medicine or drug or relating to substances prepared or produced by chemical
processes(including alloys,opticalglass,semiconductors and inter-metallic compounds) are not
patentable.

Types of Inventions which are not Patentable in India

An invention may satisfy the conditions of novelty,inventiveness and usefulness but it may not
qualify for a patent under the following situations:

a) An invention which is frivolous or which claims anything obviously contrary to well established
natural laws e.g. different of perpetual motion machines.
b) An invention the primary or intended use of which would be contrary to law or morality or
injurious to public health e.g a process for the preparation of a beverage which involves use of a
carcinogenic substance,although the beverage may have higher nourishment value.

c) The mere discovery of a scientific principle or formation of an abstract theory e.g Raman
Effect.

d) The mere discovery of any new property or ne use of known substance or the mere use of
known process,machine or apparatus unless such a known process results in a new product or
employs at least one new reactant.

e) A substance obtained by a mere admixture resulting only in the aggregation of the properties
of the components thereof or a process for producing such substance.

f) The mere arrangement of rearrangement or duplication of features of known devices each

functioning independently of one another in a known way.

g) A method or process of testing applicable during the process of manufacture for rendering the
machine,apparatus or other equipment more efficient.

h) A method of agriculture or horticulture.

i) Any process for medical,surgical,curative,prophylactic or other treatment of human beings,or

any process fo a similar treatment of animals or plants.

j) Inventions relating to atomic energy.

Types of patents
i) Utility patents

ii) Design patents

iii) Plant patents

i) Utility patents

A utility patent may be available for inventions which are novel, useful, and non-obvious. Utility
patents can be obtained for the utilitarian or functional aspects of an invention. Utility patents
have a term of twenty years from the date of filling the patent application with the patent and
trademark office, although term extensions are available in certain specific situations. During the
term of a utility patent, maintenance fees must be paid in order to sustain the patent.
ii) Design patents

It can be granted to any one who invents a new, original ornamental design for an article of
manufacture.  A design patent protects the ornamental design (i.e. appearance) of the article.  A
design patent has duration of 14 years from the date of filing. Design patents are not subject to
maintenance fee payments.

iii) Plant patents

Plant patent can be granted to any one who invents or discovers and reproduces a new variety of
plant. A plant patent may be issued for the invention or discovery of a distinct and new variety of
plants, which may be asexually reproduced. To qualify for this type of patent, the discovery or
invention must be novel, distinct, and non-obvious. A plant patent has a term of 20 years from
the date of filing.

Term of a Patent in the Indian System

a) Five years from the date of selling of the patent or seven years from the date of the patent (i.e
the date of filing the complete specification) whichever period is shorter,for an invention claiming
the method or process of manufacture of a substance,where the substance is intended or
capable of being used as a drug,medicine or food.

b) Twenty years from the date of patent in respect of any other patentable invention.

Essential Patent documents to be submitted

There are two types of patent documents usually known as patent specification,namely

1. Provisional specification
2. Complete Specificaion
1. Provisional Specification

A provisional specification is usually filled to establish priority of the invention in case the
disclosed invention is at a conceptual stage and a delay is expected in submitting full and
specific description of the invention.Although,a patent application accompanied with provisional
specification does not confer any legal patent rights to the applicants,it is however a very
important document to establish the earliest ownership of an invention.Complete specification
must be submitted within 12 months of filing the provisional specification.This period can be
extended by 3 months.

2. Complete Specification
Submission of complete specification is necessary to obtain a patent.The contents of a complete
specification would include the following:

Title of the invention

 Field to which invention belongs.

 Background of the invention including prior art giving drawbacks of the known inventions
practices.
 Complete description of the invention along with experimental results.
 Drawings etc. essential for understanding the invention.
 Claims,which are statements,related to the invention on which legal proprietorship is being
sought.Therefore the claims have to be drafted very carefully.
Criteria for Naming inventors in an Application for Patent
The name of inventors is normally decided on the basis of the following criteria:

1. All persons who contribute towards development of patentable features of an invention should be
named as inventors.
2. All persons,who have made intellectual contribution in achieving the final results of the research
work leading to a patent,should be named as inventor(s)
3. A person who has not contributed intellectually in the development of an invention is not entitled
to be included as an inventor.
A person who provided ideas needed to produce the ‘germs of the invention’ need not
himself/herself carry out the experiments,construct the apparatus with his/her own hands or
make the drawings himself/herself.The person may take the help of others.Such persons who
have helped in conducting the experiments,constructing apparatus or making the drawing or
models without providing any intellectual inputs are not entitled to be named as inventors.

Where to apply?
Application for the patent has to be filled in the respective patent office as mentioned below.The
territorial jurisdiction is decided based on whether any of the following occurrences falls within
the territory.

1. Place of residence,domicile or business of the applicant(first mentioned applicant in the case of

joint applicants)
2. Place from where the invention actually originated.
3. Address for services in India given by the applicant when he has no place of business or domicile
in India.
A foreign applicant should give an address for service in India and the jurisdiction will be decided
upon that.An applicant (Indian or foreigner) also can his Patent Agent’s address as address for
serving documents,if he/she so wishes.
How to apply?
Steps involved in obtaining a Patent

 To file an application for patent accompanied with either a provisional specification or a complete
specification
 To file complete specification,if provisional application was submitted earlier.
 Examination of the application by patent office.
 Acceptance of applications and publication in the gazette of accepted applications.
 Responding and satisfactory overcoming the opposition/objections,if any to the grant of patent.
 Sealing of patent
Application for patent(Form 1) in duplicate should be accompanied by the documents as
indicated below. The fee(Rs./- for natural citizen of India or Rs./- for other than a citizen) can be
paid within one month.

2) COPY RIGHTS
A copyright is a very particular and exclusive right even for reproduction of an original work. This
is for material, aesthetic material, literacy, music, film, sound recording, broad casting, software
and multimedia.  This offers automatic right for safeguarding any original creation, which is not in
need of registration but with limited time.  It does not require the lawyer’s help for settlement.

Protection to copy right does not give any procedure, principle, concept or method or operation,
irrespective of the format in which it is explained.  In other words protection of copyright is limited
to an inventor’s particular expression of an idea, concepts or process in a tangible medium. 
Copyright is sanctioned to prevent others from:

a) Copying the work

b) Publishing and selling copies commercially

c) Renting or lending the work in a free market

d) Doing or demonstrating the work in public

Works protected by Copyright

The types of copyright works are broadly categorized into:

a) Original literary,dramatic,artistic or musical works.

b) Sound recordings,films or broadcasts and

c) The typographical arrangement of published editions.

Literary work also includes:

 A table or compilation other than a database

 A computer program
 Preparatory design material for a computer program
 A database
Rights granted by Copyright
Copyright grants certain rights that are exclusive to its owner. Based on these rights, the
copyright owner.

 Can copy the work

 Issue copies of the work to the public
 Rent or lend the work to the public
 Perform,show or play the work in public
 Communicate the work to the public-this includes broadcasting of a work and also electronic
transmission and make an adaptation of the work or do an y of the above in relation to an
adaptation.
The TRIPS agreement offers a minimum duration of copyright protection to the tune of the life of
the inventor or author plus fifty years.  Anyhow rights granted exclusively to the copy right owner
may allow others in making fair use of the owner’s work, like for the purpose of review, comment,
reporting, teaching, researches, etc.  Of course, the impact of copying an inventor’s work’s
commercial value is considered to find out whether the copying is for “fair use”.  In order to
secure protection for copy right, the particular work must be an original work made or written in a
tangible medium of expression.  The test for such originality consists of two conditions –

(1) work must originate from the inventor and not a copy from others’ works.

(2) the invention or work must have adequate amount of creativity.

c) TRADE MARKS
Trademark is for broad identity of specific goods and services allowing differences to be made
among different trades.  This is a territorial right, which requires registration, but without any time
limit.  Lawyers are needed for guidelines.

A trademark is an identification symbol which is used in the course of trade to enable the
purchasing people (buyers) to distinguish one trader’s goods from the similar goods of other
traders. These marks also symbolize distinctly the quality of the products.  These marks are in
the form of certain ‘wordings’ or can be in the format of logos, designs, sounds, etc. Examples:
NIIT, Kodak.

The TRIPS agreement offers the same type of protection for trademarks.  Registration of
trademark is issued for definite period of time.  However, in order to avoid confusion, encourage
competitions and protect the inventor’s good will, the registration may be renewed.  With
reference to intellectual property area, trademarks are national in origin and should comply with
provision of TRIPS agreement.

TYPES OF TRADEMARKS
Generic Trademarks

Words, symbols or devices that are not so distinctly distinguishing the goods from others are at
the weakest ends, as they are common terms used to identify the goods themselves.  These are
termed as generic terms and are not protectable as trademarks.

Descriptive Trademarks

Descriptive trademarks clearly denote or inform the specific purpose, functions, physical
characteristic and end use of the product.

Suggestive Trademarks

Suggestive trademarks do not at a glance describe the goods for which the mark is used; yet
they rather require some imagination or perception to arrive at a conclusion about the nature of
the goods.

The other types of trademarks include arbitrary marks and fanciful marks which are inherently
distinctive.

d) TRADE SECRETS
A trade secret means information, which is kept confidential as a secret.  This is generally not
known in the relevant industry, offering an advantage to its owner over other competitors.  Unlike
other types of Intellectual property, this trade secret is fundamentally a “do-it-yourself’ type of
protection.  For engineers, inventors, and designers, the trade secrets are to be maintained
secretly.  Such trade secrets include some formulae, programmes, methods, progresses or data
collections etc.   If there is any improper disclosure or use of the trade secret by another person,
the inventor may claim and recover damages resulting from illegal use.
TRIPS agreements offer the protection for trade secrets under the heading ‘protection of
undisclosed information’.  The engineer in competitive field should feel their responsibility and
status when they make use of such trade secrets till its disclosure.  If the information of a trade
secret is available through any legitimate means and if any inventor is responsible illegally for
such leaking, then the trade secret may become ineligible for protection.

Enforcement of Intellectual Property Rights is definitely private rights.  If anybody uses the
material without the inventors’ permission, the Intellectual Property right owners can use any
remedies available under the civil law.

NEED FOR PROTECTION TO IPR

The protection of intellectual property rights is an essential element of economic policy for any
country.  Only such protection can stimulate research, creativity and technological innovations by
giving freedom to individual inventors and companies to gain the benefits of their creative efforts.

It is a very important issue to plan to protect the intellectual property rights.  The major needs are
to:

 Prevent plagiarism.
 Prevent others using it.
 Prevent using it for financial gains.
 Fulfill obligation to funding agency.
 Support income generation strategy.

IMPORTANCE OF IPR
a) Give the inventors exclusive rights of dealing.

b) Permit avoiding of competitors and increase entry barriers.

c) Allow entry to a technical market

d) Generate steady income by issuing license.

e) A registered intellectual property right is property, just like your capital assets. However, it is
an asset that can be leveraged through licensing and can therefore be highly valuable. It can
also greatly enhance the value of a business when it is sold.

f)Benefits the economy

Sectors that rely on IPR represent a significant part of developed and developing economies, in
terms of GDP, employment, tax revenues and strategic importance. IPR also promotes foreign
direct investment (FDI) and technology transfers in developed and developing countries.

g)Promotes innovation
Effective IPR increases funding for research and development and other innovation, including by
helping firms realize more value from innovations that are protected by IPR than those that are
not. IPR underpins development of cultural expression and diversity, and promotes broader
dissemination of innovations through publication and licensing.
h) “Open source” relies on IPR

Open source mechanisms are becoming popular in certain sectors such as software (cf. GPL
licences, etc.). While the common perception is that such mechanisms are characterized by the
absence of any IP protection, it is worth noting that a typical GPL (General Public) licence
actually relies on IP rights as it is typically a copyright license which remains valid as long as
certain conditions are complied with (e.g. freedoms received by the licensee must be passed on
to subsequent users, even where the software is modified).

i) Providing guarantees regarding the quality and safety of products

Many counterfeit products place our children’s and citizens’ safety or health at risk, for instance
where vehicle spare parts or drugs are concerned. Enforcing IP rights in respect of such products
guarantees at least that the products’ origin is known and that the products are genuine, whereas
counterfeit products often do not comply with the applicable safety standards. This is especially
true for trade marks, but patent licensing contracts, for instance, may also include quality
insurance clauses.

The Right to Information

Historical Background
The right to information is a fundamental right under Article 19 (1) of the Indian Constitution. In
1976, in the Raj Narain vs the State of Uttar Pradesh case, the Supreme Court ruled that Right to
information will be treated as a fundamental right under article 19. The Supreme Court held that
in Indian democracy, people are the masters and they have the right to know about the working
of the government.
Thus the government enacted the Right to Information act in 2005 which provides machinery for
exercising this fundamental right.
To know more in detail about the Constitution of India, visit the linked article.
The Right to Information Act of 2005
The act is one of the most important acts which empowers ordinary citizens to question the
government and its working. This has been widely used by citizens and media to uncover
corruption, progress in government work, expenses related information, etc.
All constitutional authorities, agencies, owned and controlled, also those organisations which are
substantially financed by the government comes under the purview of the act. The act also
mandates public authorities of union government or state government, to provide timely response
to the citizens’ request for information.
The act also imposes penalties if the authorities delay in responding to the citizen in the
stipulated time.
Know more about Cultural and Educational Rights at the linked article.
What type of information can be requested through RTI?
The citizens can seek any information from the government authorities that the government can
disclose to the parliament.
Some information that can affect the sovereignty and the integrity of India is exempted from the
purview of RTI.
Information relating to internal security, relations with foreign countries, intellectual property rights
(IPR), cabinet discussions are exempted from RTI.
Objectives of the RTI Act

1. Empower citizens to question the government.

2. The act promotes transparency and accountability in the working of the government.
3. The act also helps in containing corruption in the government and work for the people in
a better way.
4. The act envisages building better-informed citizens who would keep necessary vigil
about the functioning of the government machinery.

Important provisions under the Right to Information Act, 2005

 Section 2(h): Public authorities mean all authorities and bodies under the union
government, state government or local bodies. The civil societies that are substantially
funded, directly or indirectly, by the public funds also fall within the ambit of RTI.
 Section 4 1(b): Government has to maintain and proactively disclose information.
 Section 6: Prescribes a simple procedure for securing information.
 Section 7: Prescribes a time frame for providing information(s) by PIOs.
 Section 8: Only minimum information exempted from disclosure.
 Section 8 (1) mentions exemptions against furnishing information under the RTI Act.
 Section 8 (2) provides for disclosure of information exempted under the Official Secrets
Act, 1923 if the larger public interest is served.
 Section 19: Two-tier mechanism for appeal.
 Section 20: Provides penalties in case of failure to provide information on time, incorrect,
incomplete or misleading or distorted information.
 Section 23: Lower courts are barred from entertaining suits or applications. However, the
writ jurisdiction of the Supreme Court of India and high courts under Articles 32 and 226
of the Constitution remains unaffected.
To know in detail about the other fundamental rights of the Indian Constitution, aspirants can
refer to the links given below:

Right to Equality Right to Freedom

Right to Life (Article 21) Right against Exploitation

Right to Freedom of Religion Right to Constitutional Remedies (Article 32) 

Significance of the RTI Act

 The RTI Act, 2005 empowers the citizen to question the secrecy and abuse of power
practised in governance.
 It is through the information commissions at the central and state levels that access to
such information is provided.
 RTI information can be regarded as a public good, for it is relevant to the interests of
citizens and is a crucial pillar for the functioning of a transparent and vibrant democracy.
 The information obtained not only helps in making government accountable but also
useful for other purposes which would serve the overall interests of the society.
 Every year, around six million applications are filed under the RTI Act, making it the most
extensively used sunshine legislation globally.
 These applications seek information on a range of issues, from holding the government
accountable for the delivery of basic rights and entitlements to questioning the highest
offices of the country.
 Using the RTI Act, people have sought information that governments would not like to
reveal as it may expose corruption, human rights violations, and wrongdoings by the
state.
 The access to information about policies, decisions and actions of the government that
affect the lives of citizens is an instrument to ensure accountability.
 The Supreme Court has, in several judgments, held that the RTI is a fundamental right
flowing from Articles 19 and 21 of the Constitution, which guarantee to citizens the
freedom of speech and expression and the right to life, respectively.

Recent Amendments
 The RTI amendment Bill 2013 removes political parties from the ambit of the definition of
public authorities and hence from the purview of the RTI Act.
 The draft provision 2017 which provides for closure of case in case of death of applicant
can lead to more attacks on the lives of whistleblowers.
 The proposed RTI Amendment Act 2018 is aimed at giving the Centre the power to fix
the tenures and salaries of state and central information commissioners, which are
statutorily protected under the RTI Act. The move will dilute the autonomy and
independence of CIC.
 The Act proposes to replace the fixed 5-year tenure with as much prescribed by the
government.

Criticism of RTI Act

 One of the major set-back to the act is that poor record-keeping within the bureaucracy
results in missing files.
 There is a lack of staffing to run the information commissions.
 The supplementary laws like the Whistle Blower’s Act are diluted, this reduces the effect
of RTI law.
 Since the government does not proactively publish information in the public domain as
envisaged in the act and this leads to an increase in the number of RTI applications.
 There have been reports of frivolous RTI applications and also the information obtained
have been used to blackmail the government authorities.