IPR and its Related Rights

Intellectual Property is a collection of ideas and concepts, which can be protected

through trademarks, copyrights and patents.

IPR are the rights, which allow the patent holder, trademark carrier or copyrighted
work to benefit them for their brainwork or investment.

Copyrights
It is the exclusive rights bestowed or given upon the creator, writer, author, artist
or any one of their original works to print, publish or record for a fixed period of
time.

Trademarks
It is a distinguishable symbol, signature or design of goods or products or services
representing a particular company.

Patents
Patents can be termed as legal monopoly granted to an individual or a firm to
make use of their brainwork by others (It may be for a product and process), which
can be done by selling their invention and making it a restricted property for use.
An invention can also be sometimes rendered as a solution to any specific
technological problem that can be a product or a process.

There are three following conditions to recognise any invention:

1. It has to be a new invention
2. It should not be obvious and
3. Their needs should hold industrial application

Positive of Patents:
Encouragement of innovation and Research.
Protection of industries.
Economic assistance.
Benefit of Royalty.
Encouragement of Scientist with positivity.

Negative of Patents:
Dominating status of developed nations.
Economical exploitation by foreign companies.
Poor section of people could not access all important produce and services.

Industrial Design
Industrial Design trains one to blend art with applied science in order to improve a
product in terms of visual aspects, its application and usage.

Trade Secrets
pProtecting of certain recipes, processes, formulae or designs, patterns,
information of certain product by a particular company or business firms, thereby
giving themselves an edge and advantage over competitors.

Trade dress
Trade dress, like Trademark, is a source identifier or indicator to the customers but
the difference is that it is not only the symbol or short phrase of the company but
everything that a company does to their product, presenting itself to the customer
distinctively, from giving visual appeal to a product or from packaging that signify
the source of the product to consumers.

Plant Varieties
These are the rights given for the usage of a new plant species commercially, which
is original and different and in order to get them registered, the variety’s
propagating material assessment is to be scrutinised.

Geographical Indication

NEED FOR INTELLECTUAL PROPERTY RIGHT

 Enhanced the economic growth, thereby creating new jobs and
opportunities in industries.
Helps in maintaining a balance between the interests of creators and the
public, providing.
Persons Benefit:
1. Encourage human to continue further in their endeavour to produce
improved and effective products.
2. Encourage consumers to opt and buy more reliable products or services

History of Intellectual Property Right in the world

In 1883, Paris Convention for the Protection of Intellectual Property was set to
help creators in ensuring that their intellectual works are being protected in other
countries.

In 1887, Berne Convention for the Protection of Literary Work and Artistic Works
was approved and agreed to give right to the creator to control and receive the
payments of their work on the international level and arena.

In 1893, BIRPI (the United International Bureaux for the Protection of Intellectual
Property) was formed with the amalgamation and submergence of the two
secretariats set up to administer Berne and Paris Conventions.

In 1970, BIRPI transformed to WIPO (World intellectual property organisation),

which is an intergovernmental organisation with 189 member countries based in
Geneva, Switzerland.

Later in 1974, WIPO, by joining the UN, becomes a specialised agency thereby
increasing the relevance of intellectual property.

• In 1995, India joins World Trade Organisation (WTO).

• In 1998, India joined Paris Convention.
• In 2005, Patents Amendment Act 2005 came into force with effect from 1
January 2005.
• Due to the significant changes in the country’s economic and political
situations after India’s independence, in the year 1949, the Union Government
formed a committee under the leadership of Justice ‘Dr. Bakshi Tek Chand’,
retired judge of High Court of Lahore for reviewing the country’s patent law
and for ensuring the contribution of the patent law towards the national
interest.
• In 1957, Justice ‘N. Rajagopala Ayyangar’ Committee was appointed for
examining the questions of revision of the Patent Law and advising to the
government accordingly. On the basis of the committee recommendation,
Patents Bill 1965 was introduced, which later got lapsed.
• Patents Amendment Ordinance, 2004 was enforceable from 1 January 2005,
which later got superseded by Patents Amendment Act 2005.

National Intellectual Property Right Policy

• It is the first policy of India on IPR, which was revealed by the Finance
Minister (Union Government) in accordance with TRIPS in May 2016. So far,
only specific Act regulates the IPR in India. CIPAM (Cell for IPR Promotion
and Management), a professional body created under DIPP, has been
entrusted with the implementation of the National IPR Policy 2016. It is a
vision document, which aims to create and exploit synergies between all forms
of intellectual property, concerned statutes and agencies.
• The policy, which is in compliance with WTO’s (World Trade Organisation)
agreement on TRIPS (Trade Related aspects of IPRs), aims to sustain
entrepreneurship and boost ‘Make in India’ scheme.

Highlights of New Intellectual Property Policy

• The said Policy aims towards the protection of public interest through the
promotion of IPR as a profitable financial asset; and further encouraging the
innovation and entrepreneurship.
• There will be reviewing of plan after every five years in discussion with
stakeholders.
• Various steps, such as reviewing of the present IP laws, their revision and
improvisation for the removing of abnormalities and discrepancies, is required
to be undertaken in order to have strong and effective IPR laws.
• There is complete conformity of policy in accordance with WTO’s agreement
on TRIPS.
• There should be special focus on creation of IPRs awareness and its effective
enforcement, in addition to persuading of IP merchandising with the help of
different incentives.
• As per the policy proposal, for all the IPR related issues, the nodal agency will
be the Department of Industrial Policy and Promotion. Moreover, DIPP will
also be responsible for tackling of all the copyrights-related issues in place of
the Human Resource Development (HRD) Ministry.
• There is a rationalisation of trademark offices for reducing the examination
and registration time to just 1 month by the year 2017. There is hiring of
approximately 100 new examiners for trademarks by the government and there
is reduction of trademarks evaluation time from 13 months to 8 months, and
ultimately bringing it to one month by March 2017.

Madrid Protocol:
• It is an international treaty that allows a trademark owner to seek
registration in any of the countries that have joined Madrid Protocol by
filing a single application.
• International Bureau of the World Intellectual Property Organisation
administers the international registration system.

• There will be the coverage of films, music, and industrial drawings under the
copyright.
• The policy helps in the filing of domestic IPR from IPR generation to
commercialisation and further helps in promoting the research and
development through tax benefits.
• The policy also facilitates in the creation of an effective loan guarantee
scheme for the promotion of start-ups promotion.
• As per the policy, the country will persist in the utilisation of the legislative
space and flexibilities offered in international treaties and the TRIPS
Agreement. These flexibilities consist of the usage of provisions like Section
3(d) and CLs under the country’s sovereign rights to ensure the availability of
essential and life-saving drugs at affordable prices.
• Due to the policy, the patent laws of the country remains intact and there is no
opening up of Section 3(d) of the Patents Act, setting the standards in the
country for reinterpretation.
• In the field of compulsory licensing, the CL has been issued in the country only
for a cancer drug. As per Mr. Jaitley (when he was finance minister), the
country rarely exercises this power. This being considered as significant
statement as the developed countries, such as the US, have raised their
apprehensions over the country’s issuance of the CL. According to the
standards of the WTO, a government in public interest can raise CL allowing a
company for making a patented product without the patent owner’s
permission. As per the Indian Patents Act, a CL can be raised in the category of
a drug if any medicine seems to be not reasonable, and the permission for
drug manufacturing is given by the government to the qualified generic drug
manufacturer.
• In view of the financial support on the export and sale of the items on the basis
of IPRs produced from the research being publically funded is the outcome of
the IPR policy, ultimately benefitting the government.

Iprism

It is an Intellectual Property (IP) Competition to promote a culture of innovation

and creativity in the younger generation at college and university-level students.

Iprism promotes young creators and provides unique opportunity in their

creations.

Iprism launched by various bodies: The Cell for IPR Promotion and Management
(CIPAM), Department of Industrial Policy and Promotion (DIPP), in
collaboration with ASSOCHAM and ERICSSON India.

This competition encourages students in submitting piracy and counterfeiting-based

films under dual 30 and 60 seconds categories and further on gaming mobile
applications. Due to the piracy and counterfeiting, the industry is encountering a
considerable loss and thereby posing serious safety threats to the consumers. This
type of awareness will help tackle such types of crimes as the little knowledge on
piracy and circulation of fake items lead to negative socio-economic impacts on the
society.

Department of industrial Policy and Promotion (DIPP)

It was set up in the year 1995 and the Department of Industrial Development
was merged with DIPP in the year 2000 working under the Ministry of
Commerce and Industry, Government of India.

Considering the national priorities and socio-economic goals, DIPP facilitates

the industrial sector growth through the formulation and implementation of
promotional and developmental measures and also liable for assisting and
raising the country’s FDI flows.

The department is also responsible for the items intellectual property rights in
relation to patents, designs, trademarks, and geographical indication and
further manage the actions in linkage to their encouragement and protection.

DIPP is now called as Department for Promotion of Industry and Internal

Trade (DPIIT).

Cell for IPR Promotion and Management (CIPAM)

With the slogan of “Creative India; Innovative India”, the Government

approved CIPAM, a professional body under the aegis of DIPP to take forward
the implementation of the National IPR Policy in May 2016.

CIPAM has been created to work towards public awareness of IPRs,

promotion in filing of IPRs, to provide various inventors to commercialise
their IP assets. CIPAM also works for implementing the National IPR Policy, in
collaboration with various Government Ministries/Departments and other
stakeholders.

Provision of Copyright and its Related Rights

The Law of Copyright grants legal protection to the work of authors, artists and
other creators. A closely linked field is “Related Rights,” which cover rights
similar to copyright, but are limited, for they last for very short time as their
durations are short. In “Related Rights” creators included are: actors, musicians
in their act; producers of phonograms in their sound recordings; and
broadcasting organisations in their radio and TV programmes.

• Economic Rights of Creator lasts for a limited period of 50 years approximately

after the Creator’s death, this is as per the copyright law (as relevant in the
WIPO Treaty).

Recent Delhi High Court Copyright Judgement (DU Photocopy Case)

• On 09 December 2016, the ruling was no restriction books photocopied, as

long as “justified by the demands of the course”. Under Section 52(1)(i) of the
Copyright Act, photocopying material, which is copyrighted for using/usage
purpose “in the course of instruction” is permitted. The court concluded that
“qualitative and quantitative” tests for fair use are not included in the law.
• The large publishing companies such as Oxford University Press and Cambridge
confronted the University of Delhi and its photocopier for violation of copyright.
As per the Delhi High Court ruling, the course pack photocopying for the
education point is within the restrictions of law.
• Photocopying, in itself, does not lead to violation of copyright. According to
the court, copyright is to create equilibrium between challenging ideas of
private and public interests.
• The software programming can be considered as a “literary work”. According to
the Copyright Act, 1957, there is inclusion of software programmes, tables and
compilations, including databases as literary work. In order to register the
 software products’ copyright, along with the application, source code has also
to be submitted.

Indian Patent Act, 1970 & 2005

The main purpose of patent system is to encourage innovation and eventually

results in technological development. The present Patents Act, 1970 came into
force in the year 1972, amending and incorporating the existing laws relating to
Patents and Designs act 1911 in India

Section 3(j) of the Patents Act 1970 states that “plants and animals in whole or
any part there of other than micro- organisms but including seeds, varieties
and species and essentially biological processes for production or
propagation of plants and animals" are not inventions as per the act and
hence not patentable.

The Patent (amendment) Act 2005 came into force from 1st January 2005, which
brought changes in the previous patent system of India wherein product patent
was extended to all subjects of technology consisting of food, drugs,
chemicals and micro organisms. Moreover, Section 3(d) introduced in to the
said amendment act 2005 and introduces pharmaceutical product patents in India
for the first time. The Patent (amendment) Act 2005 defines what invention is and
makes it clear that any existing knowledge or thing cannot be patented. The
provision defines that a ‘novelty’ standard - which, along with ‘non- obviousness’
or ‘inventive step’ and industrial applicability, are the three prerequisites for
‘patentability’. “Discovery” essentially refers to finding out something which
already existed in nature but was unknown or unrecognised. Therefore,
discoveries are excluded from patent protection under section 3 of the Indian
Patent Act 1970.

Highlights of India’s Patent Policy-2016

The policy is in compliance with the WTO’s agreement on TRIPS and in particular
the focus is being laid in the policy on awareness generation on IPRs and its
enforcement in an effective manner, in addition to IP commercialisation promotion
with the help of different incentives.

• The Department of Industrial Policy and Promotion (DIPP) has been made the
nodal agency for all IPR-related issues and issues linked to copyrights have also
been shifted to DIPP from that of the Human Resource Development Ministry.

• There is a rationalisation of trademark offices for reducing the examination

and registration time to just 1 month by the year 2017.
• There is reduction of trademarks evaluation time from 13 months to 8 months,
and ultimately bringing it to one month by March 2017.
• The policy helps in filing of domestic IPR from IPR generation to
commercialisation and further helps in promoting the research and
development through tax benefits.
• The policy also facilitates in the creation of an effective loan guarantee scheme
for the promotion of start-ups. As per the policy, the country will persist in the
utilisation of the legislative space and flexibilities offered in international
treaties and the TRIPS Agreement. These flexibilities consist of the usage of
provisions like Section 3(d) and CLs under the country’s sovereign rights to
ensure the availability of essential and life-saving drugs at affordable prices.

In the year 2013, the Supreme Court had upheld the decision of Intellectual
Property Appellate Board regarding the rejection of giving patent protection to the
application of Novartis for a new drug form termed as imatinib but branded as
Glivec.

Novartis had challenged Section 3 (d) of the country’s patent act, which guarantees
that the companies do not get the patent protection by merely altering the already
existing drug without there being any subsequent changes in its healing effects.

At the time of giving decision, Section 3(d) of the Indian Patents Act, 1970 was
validated by the Supreme Court.

Moreover, the court noted the product named as beta crystalline had already been
identified earlier to the year 1995, with the past patent being held by the Novartis.
The outcome of the decision is that the country’s patent law was completely upheld
and the granting of patents will be undertaken only for authentic innovation and
there will be no acceptance of any litigative patenting. This means that the patent
cannot be granted if any old molecule is kept in a new substance, just creating
a minor modification, and presenting it as an entirely new invention.

The creation of trivial modifications into the original product for the claiming of
another patent to extend the period for the validation of patent is termed as the ever-
greening of patents.

Note: The compulsory licensing has only been issued once for a cancer drug,
Sorafenib tosylate (Nexavar). As per the Indian Patents Act, a CL can be raised in
the category of a drug if any medicine seems to be not reasonable, and the
permission for drug manufacturing is given by the government to the qualified
generic drug manufacturer.

Secondary Patents and its Recent Issue for India

About 1,700 rejections for pharmaceutical patents at the Indian Patent Office were
applications that sought protection in the form of secondary patents for blockbuster
medicines.

Secondary patents

• The owners market is being offered by the patents exclusivity for a restricted
time period. In case of medicines, the exclusivness should last as long as the
primary patent, which relates to the active pharmaceutical ingredient (API) of
the medicine and is effective, particularly for 20 years.
• The patent cliff is being described as the ending of patent exclusivity as the
prices of the drug subsequently drop sharply by 80 per cent due to generic
competition.
• The pharmaceutical companies discover new ways due to the risk of their huge
profit reduction, which made them delay their exclusivity through the filing of
secondary patents for derivatives and variants of the API, such as a physical
variant of the API, a new formulation, a dosage regimen, or a new method of
administering the medicine.
• The secondary patents prop up before the expiry of a primary patent, thereby
stretching the exclusivity beyond, a practice that is called “evergreening”. This
strategy is most lucrative when employed in the context of so-called
blockbuster medicines, which reap annual
• Revenues exceeding $1 billion.
• These provisions also extend to biologics, the New big players in the
therapeutics marketplace. Biologics, due to their complex structure, offer more
opportunities in secondary patenting for extending patent terms.