Basic Concepts of IP Law, Nature of IPR

What is Intellectual Property?

Ownership over non-physical property or incorporeal rights. Intellectual property (IP) refers to
ideas of human intellect embodied in physical objects.

The word Intellectual property (IP) denotes the creations of human mind or intellect, such as
literary and artistic works; inventions; designs; symbols, names and images used in commercial
ventures etc. Intellectual property is generally characterized as non-physical property that is the
product of original thought. Typically, rights do not surround the abstract non-physical entity;
rather, intellectual property rights surround the control of physical manifestations or expressions
of ideas. Intellectual property law protects a content-creator’s interest in her ideas by assigning
and enforcing legal rights to produce and control physical instantiations of those ideas.

Thus, it results from the expression of an idea, which can be owned, bought and sold. However,
the IP rights do not protect or cover the idea or thought itself. The protection of IP Rights is
availed through the national law and the international cooperation, and the protection respecting
the IP is maintained by the World Intellectual Property Organisation (WIPO).

Intellectual property as understood in the north and is being increasingly adopted by the south,
denotes a particular resource that is intangible in nature. According to Jeremy Phillips and
Alison, the term ‘Intellectual Property’ conveys two meanings with it- Firstly, the colloquial
terminology of intellectual property suggests that IP simply comprise all those things which
emanate from the exercise of human brain, i.e. ideas, inventions, poems, designs etc. Secondly,
the legal nature denotes that intellectual property implies, in essence, the right in itself, which are
enjoyed in the produce of mind, rather than upon the produce of it.

In broad sense, intellectual property means the legal rights, i.e. literary, artistic or scientific
works, performance of performing artists, phonograms and broadcasts, inventions in all fields of
human endeavor, scientific discoveries, industrial designs, trademarks, service marks,
commercial names and designations, protection against unfair competition which result from
intellectual activity in the industrial, scientific, literary or artistic fields. Under intellectual
property law, owners are granted certain exclusive rights to a variety of intangible assets, such as
musical, literary and artistic works; discoveries and inventions; phrases, words, symbols and
designs.

The core purpose of all intellectual properties is to ensure creative activity and the development
of goods or knowledge to bring prosperity to the country. In practice, intellectual property rights
imply legal mechanisms that ensure that the products we buy are genuine. The IP system aims
to adopt a creative and innovative environment which can flourish maintaining a right
balance between the interests of the innovators and the wider public interest.
History of Intellectual Property

One of the first known references to intellectual property protection dates from 500 B.C.E., when
chefs in the Greek colony of Sybaris were granted year-long monopolies for creating particular
culinary delights. There are at least three other notable references to intellectual property in
ancient times—these cases are cited in Bruce Bugbee’s formidable work The Genesis of
American Patent and Copyright Law (Bugbee 1967). In the first case, Vitruvius (257–180
B.C.E.) is said to have revealed intellectual property theft during a literary contest in Alexandria.
While serving as judge in the contest, Vitruvius exposed the false poets who were then tried,
convicted, and disgraced for stealing the words and phrases of others.

The second and third cases also come from Roman times (first century C.E.). Although there is
no known Roman law protecting intellectual property, Roman jurists did discuss the different
ownership interests associated with an intellectual work and how the work was codified—e.g.,
the ownership of a painting and the ownership of a table upon which the painting appears. There
is also reference to literary piracy by the Roman epigrammatist Martial. In this case, Fidentinus
is caught reciting the works of Martial without citing the source.

In the landmark case Donaldson v. Becket (1774), the practice of recognizing the rights of
authors had begun.

2. Classification of Intellectual Property: (As per the WIPO)

IP Rights is usually divided into two broad branches:

A. Industrial Property: Only relating to the creation of human mind. These includes:
• Patents
• Industrial Designs
• Trademarks; Service Marks and Commercial Names and Designations
• Indication of Source and Appellation of Origin (GI Products); and
• The Protection against Unfair Competition.

B. Copyright and Related Rights: All about the Original work of authorship.

2. The Domain of Intellectual Property (As per the WIPO)

Sectors/ fields where Intellectual Property Rights are applied:

A. Patents:

Eligibility: New, non-obvious, industrially applicable inventions.

Example of Sectors: Chemicals, drugs, plastics, engines, turbines, electronics, industrial control
and scientific equipment.

B. Trademarks; Service Marks and Commercial Names and Designations:

Eligibility: Signs or symbols to identify goods and services.

Example of Sectors: All industries.

C. Copyright:

Eligibility: Original work of authorship.

Example of Sectors: Mainly six subject matters, starting from literary and artistic works. Thus:
Printing, entertainment (audio, video, motion pictures), software, broadcasting, books, poems
etc.

D. Geographical Indications:

Eligibility: Geographical origin of goods and services, which corresponds to a specific

geographical location or origin (e.g. a region, or country).

Example of Sectors: Wines, spirits, cheese, Khirsapat Mango and other food products.

E. Industrial Designs:

Ornamental designs Clothing, automobiles.

F. Trade secrets: Secret business information. Example of Sectors: All industries.

Brief History of Intellectual Property System in Bangladesh

Bangladesh inherited the legal framework on intellectual property (IP) dating back to the British
India. The Patents, Designs and Trademarks Act of 1883 is the earliest legislation found to
protect IP. Subsequently it was repealed and the new Patents and Designs Act was enacted in
1911 and the Trademarks Act in 1940. In 2003, both the Patents and Designs Act, 1911 and the
Trademarks Act, 1940 were amended and the Department of Patents, Designs and Trademarks
(DPDT) was formed under the Ministry of Industries merging two independently operational
offices - the Patent Office and the Trademark Registry Office.In 2008, the Trademarks
Ordinance was promulgated and in 2009, the Trademarks Act was enacted. Copyright system in
Bangladesh was originated from the British copyright system and later the copyright ordinance,
1962, an amalgamation of existing different copyright laws was promulgated. This ordinance
was administered up to 1999. After that, the Copyright Act, 2000 was enacted in 2000 and was
amended in 2005. In addition, “The Penal Code of Bangladesh” comprises several penal laws
against the violations of various intellectual property rights (IPR).

Bangladesh participated in the convention establishing the World Intellectual Property

Organization (WIPO) on May 11, 1985. Bangladesh became a member of the Paris Convention
for the Protection of Industrial Property in 1991 and of the Berne Convention for the Protection
of Literary and Artistic Works in 1999. Bangladesh is a signatory of the Trade-Related Aspects
of Intellectual Property Rights (TRIPS) agreement of the World Trade Organization (WTO),
which came into force on January 1, 1995. The TRIPS Agreement sets detailed, compulsory and
common standards for all countries following the dispute settlement system of the WTO. Being a
member of LDCs Bangladesh is enjoying the extended transition period to bring herself into
compliance with its rules.

Forms of Intellectual Property(Explanation)

Copyright –

Simply, Copyright is a legal concept enacted by the legislator of the state, giving the creator
of an original work exclusive right to it, usually for a limited time. Generally, it indicates
“the right to copy”, but also gives the copyright holder the right to be credited for the work
and to determine who may modify the work to other forms, who may perform the work,
who may financially benefited from it, and other related exclusive monopoly rights. It is
one kind of intellectual property (like the patent, the trademark, and the trade secret)
applicable to any expressible form of an idea or information that is substantive and
separate.

Protects creative works like musical compositions, audio recordings, movies, books, articles,
diagrams, photos, website content and software applications.

Work must be original or expressed differently to be protected under Copyright.

Copyright exists upon fixation of work in tangible medium;

No registration necessary except for evidence or establishing ownership.

An author of a work has the following exclusive rights: Reproduction of a work; Distribution
of copies of the work; Public performance of the work; Broadcasting of the work;
Communicating the work to public by wire or wireless means; Commercial rental of the
work.
Trademarks

A trademark is a distinctive sign or mark used in trade to distinguish your goods or services.
Trademarks identify the source of products to the consumers. A trademark can be any distinctive
word, symbol, slogan, logo, brand label, name, signature, letter, numeral or any
combination of them. Distinguish products in market place and helps consumer to identify
of source of product or service.

Industrial designs

Protects the appearance of a product/logo, from the shape of an aeroplane to a design of a cloth.
The design may consist of three-dimensional features, such as the shape or surface of an article,
or of two-dimensional features, such as patterns, lines or color. An industrial design must be new
or original and aesthetic to be protected.

Geographical Indication(GI) –

(GI) is a name or sign used on certain products which corresponds to a specific

geographical location or origin (e.g. a region, or country). A Geographical Indication should
have special quality or reputation. Examples: French Champagne, Basmati rice, Swiss
watches, Ethiopian coffee, Tequila for spirits produced in Mexico, Electrical appliance Made in
UK.

What is a Patent?

• A patent is an exclusive right granted by the state for an invention which is a product or a
process. • The product or process should provide in general, a new technical solution to a
problem of any field. • The exclusive rights are territorial and patent protection is granted for a
limited period, generally 20 years.

Requirements for Patentability

• Novel – Must be new, not anticipated by prior art (available information).

• Inventive step (non- obvious) - Not easily deduced by a person with average knowledge of the
technical field.

• Industrially applicable - Invention must be useful/ have utility.

• The subject matter must be accepted as patentable under the national patent law.
Matters excluded from Patentability

• A discovery, scientific theory or mathematical method is excluded from patentability, but its
application or use can be patentable

• Methods of doing business for example method of book keeping, trading stocks are not
patentable

• Diagnostic, therapeutic and surgical methods for the treatment of humans and animals.

• Inventions contrary to public order, morality, public health and safety, principles of humanity
and environmental conservation. For example process of cloning

Trade Secrets

A trade secret is any confidential information used in business that gives a competitive edge.
The information must be secret; effort must be used to keep it secret; used in business; and
gives an economic advantage by reason of it being secret. Examples include formulae,
recipes, pattern, technique, compilation, method, program, process, device or product
mechanism. No registration is required. This basically means that disclosing the secret would
make the information far less valuable. Examples: Coke Cola formula, KFC recipe Trade secret
remains valid as long as one does not discover it independently. Some ways to protect a Trade
secret – Restrict access to information; limit number of people who know the information, have
employees sign non disclosure agreements.