care for your intellectual property

8/8/2019 Care for Your Intellectual Property

http://slidepdf.com/reader/full/care-for-your-intellectual-property 1/4

1

CARE FOR YOUR OF INTELLECTUAL PROPERTY!

Vandana Vaidya. B.Sc.LL.M;Advocate/Patent Attorney.

Talent considers a wide range of factors such as behavior, creativity, performance, specialability or even potential in many areas of worthwhile human endeavor. Since the Stone Age,human is the only creature on this earth among all others, who has effectively utilized this talentor intellectual faculty to improve the standard of living. Intellectual Property, in its literal sense,

means, the things that originate from human brain. This creation of human mind is considered tobe the most invaluable asset when compared with movable or immovable property.

Intellectual property plays an important role in an increasingly broad range of areas,ranging from the Internet to health care to nearly all aspects of science and technology andliterature and the arts. Understanding the role of intellectual property in these areas – many ofthem still emerging – often requires significant new research and study. To promote informeddiscussion of the intellectual property, education and awareness in this field is important.

Intellectual property surrounds us in nearly everything we do. At home, at school, at work,at rest and at play. No matter what we do, the fruits of human creativity and invention surroundus.

Today, possession of land, labour and capital are just not enough for a country to succeed.

Creativity and innovation are the new drivers of the world economy. The policies adopted by acountry shall determine the nations well being and further as to how it is developing the trappedintellectual capital. An effective intellectual property system is the foundation of such a strategy.Within knowledge-based, innovation-driven economies, the intellectual property system is adynamic tool for wealth creation – providing an incentive for enterprises and individuals to createand innovate; a fertile setting for the development of, and trade in, intellectual assets; and astable environment for domestic and foreign investment.

Thus the progress and prosperity of a nation depend on the industrial, technological andpharmaceutical development and the people behind are the researchers and inventors. Legalprotection of the inventions has to be sought in accordance with the intellectual property rights(IPR) regime.

The World Intellectual Property Organization (WIPO) has been established to promote theuse and protection of works of the human spirit. These works – intellectual property – areexpanding the bounds of science and technology and enriching the world of the arts. WIPO playsan important role in enhancing the quality and enjoyment of life, as well as creating real wealth fornations.

The establishment of the World Trade Organization (WTO) has further enhanced a major

metamorphosis for global trade in the new millennium. The WTO is bringing about sweepingchanges in both composition and complexity of international trade and development. There is



2

visible global inter-dependency for establishing trade links and creating a strong web of globalintegration.

Intellectual Property is one of the most important aspects of the WTO regime and it has farreaching implications. Agreement of Trade Related Intellectual Property Rights - better known asTRIP's- to which India is a signatory, is an integral part of WTO and it will have an enormousimpact on Indian business and trade partnerships. Accordingly, India has complied its obligationsby amending the existing legislation with respect to IPRs. It is a welcome sign to note that, inIndia, though late, awareness about the intellectual property rights is on the increase.

About Intellectual PropertyIt is not material wants that seek ownership, but the ideas, skills and moral aspirations

need equal protection. It refers to creations of the mind: inventions, literary and artistic works,symbols, names, images, and designs used in commerce.

Intellectual property is divided into two categories: Industrial property, which includesinventions (patents), trademarks, industrial designs, and geographic indications of source; andCopyright, which includes literary and artistic works such as novels, poems and plays, films,musical works, artistic works such as drawings, paintings, photographs and sculptures, andarchitectural designs. Rights related to copyright include those of performing artists in their

performances, producers of phonograms in their recordings, and those of broadcasters in theirradio and television programs, in short the digital or non-digital forms of information.

Importance of Intellectual Property

Intellectual property protection is the key factor for economic growth and advancement inthe high technology sector.

There are good for business, benefit the public at large and act as catalysts for technicalprogress. They believe and argue that, if IPRs are good, more IPRs must be better. On the otherside, the developing world side thinks that, IPRs are likely to cripple the development of localindustry and technology, will harm the local population and benefit none but the developed world.They believe and argue that, if IPRs are bad, the fewer the better.

Whether IPRs are a good or bad thing, the developed world has come to anaccommodation with them over a long period. Even if their disadvantages sometimes outweightheir advantages, by and large the developed world has the national economic strength andestablished legal mechanisms to overcome the problems so caused. Insofar as their benefitsoutweigh their disadvantages, the developed world has the wealth and infrastructure to takeadvantage of the opportunities provided. It is likely that neither of these holds true for developingand least developed countries. (Extracts from Report on Commission on IPR London September2002). India falling one among the developing countries have miles to go, as she has avulnerable collection of traditional, oral, folklore, customary, agricultural, traditional medicinal likeAyurveda etc. and besides not having much wealth and infrastructure, lack of awareness of IPRsamong all strata’s of people, is a major set back to a developing country like India. Aggressiveand targeted patenting is the need of the hour.

Why care about IPR?

Patents benefit none other than the owner of the IP and add value to all industrial as well asbusiness concerns (Small manufacturing Enterprises SME) and laboratory discoveries and indoing so provide incentives for private sector investment into their development. Anyone in theabove business should have an independent Research and development (R&D) center, which isa need of the hour. Offering free R&D and processes in over enthusiasm must be avoided.Documentation and maintenance of secrecy is considered as prime issues.



3

Globalization and the rapid proliferation of technology have elevated the importance ofintellectual property protection for small and medium sized enterprises (SMEs). The intangiblenature of intellectual property and the worldwide inconsistency of standard practices createchallenges for those businesses wishing to protect their inventions, brands, and businessmethods in foreign markets. The three most common vehicles for protecting intellectual propertyare patents, trademarks, and copyrights.

The Biotechnology Industry Organization advocates a strong and effective intellectualproperty system. Strong intellectual property protection is essential to the success, and in someinstances to the survival, of the biotechnology companies in this country. For these companies,the patent system serves to encourage development of new medicines and diagnostics fortreatment and monitoring intractable diseases, and agricultural products to meet global needs. However, due consideration must be given while giving holistic interpretation to TRIPS agreementto ensure the public health rather than protecting the interest of these companies.

In the era of knowledge age or information age, the fundamental unit of most products andservices is information -- in one or another form. Have you seen those n-number of websites, virtual enterprises and virtual products? All these rest upon the cornerstone of 'information': indigital or non-digital form. In several cases such information is of proprietary nature, i.e., it has

unique value deriving from usage, research, development, design, etc. Hence, the investment inthat information product, knowledge product or the virtual product must be protected toencourage other similar initiatives. The initial investment is of critical importance given thatreplicates of such products could be created with relative ease and without incurring a largeexpense. How difficult or expensive is it to download a copy of the software program code once itis created? With increasing worldwide access to electronic distribution, the damage caused bypiracy to content producers may completely destroy the value built in their intellectual property.

The same context is valid in the case of companies who have earned consumer recognitionfor their brand names and trade marks. A recognized brand name or trade mark represents thegoodwill that has been built into the product or service. Consumers tend to associate therecognized brand name or trade mark with certain characteristics that are specific to that name ormark. Therefore, companies should manage, protect and safeguard the investment in the related

intellectual property rights. Not only this, they should be vigilant if anyone else is misusing orcausing infringement of this Intellectual property.

That is the crux of the intellectual property rights: to give credit where, and when, itis due. With the emergence of the knowledge society and virtual products, the issue ofsafeguarding the investment in the information-based products has certainly gained highimportance. We, as consumers or producers in the information chain, cannot afford to be ignorantabout the intellectual property rights!!

Since centuries, people have tried to safeguard their investment in creations that aresomehow unique or provide some unique value. Mogul Emperor Shah Jahan, built Taj Mahal inmemory of his beloved queen. Folklore goes that the emperor instructed his soldiers to chop offthe hands of the craftsmen so that they could never create another monument like Taj Mahal.

Here too, the creation of the product was based upon the innate knowledge or skills of humanbeings, specifically handcrafted.

Thus protection of IPR has definite (tangible) benefits, such as to propagate innovativeculture, profitability, market leadership and helps creation of wealth for the individual and thenation.



4

IPR Awareness

Intellectual property rights (IPRs) give the owners of ideas, inventions, and creativeexpression the right to exclude others from access to or use of their property for a certainperiod of time. International treaties and the laws of the various countries differ significantly interms of the degree of protection and enforcement available, India too should take the challenge,

face the challenges of globalization and harmonization. Like most of us, I applaud internationaltreaties for helping to create rational trading structures and principled relations among nations;and I applaud them for forcing governments to enshrine relatively unchangeable principles thatconstrain the whims of domestic policy change. But in-depth knowledge of such arrangementsdemands great care and forethought because of that relative immutability. Vision or forethought isdifficult in the fluid environment of the knowledge-based economy. And then the need to complywith treaties often means dealing with decisions which elaborate those treaties in unexpectedways.

While India has entered the global patent regime, awareness and expertise on the subject ofIPR in India is still highly inadequate. Present skills do not extend towards protecting indigenousinventions or understanding the implications of patents granted to competitors. Further, the abilityto read or write patents is grossly lacking when viewed in the context of global practices. Indian

industry and businessmen cannot afford to be indifferent to these new requirements. India'sknowledge-based industries will be looking at filing international patents and their skills in filing,reading and exploring patents will be very crucial in the years to come.

Need for a Local Attorney

For industrial as well as business concerns (entrepreneurs) (Small manufacturingEnterprises SME), laboratory discoveries, technology innovators or researchers; IPRmanagement is a key but complex issue involving several interrelated activities. First, there is thegathering of information necessary for creating protection of existing or newly created intellectualproperty assets. The final step is the exploitation of the intellectual property assets, starting withthe decision-making process and strategies for identifying commercial opportunities for researchand technical development results. Financial support may be necessary to secure IPR protection,

particularly through patenting. Then begins the procedure of marketing patented ideas, andnegotiating contracts and agreements on confidentiality, secrecy and licensing.

Lawyers and Law firms are most useful in assisting various IPR management, protectionand infringement of patents in India and abroad. Any attorney may register trademarks orcopyrights, or initiate or defend any kind of IP litigation. Yet, because many attorneys areunfamiliar with IP fundamentals, small business owners should seek advice of specialists.

Most people know enough about real estate property, rough cost according to its location.They also know to clear title before making a purchase or commencing construction. However,when it comes to IPR, most of them are ignorant and offer comparatively cheap insurancesagainst the risk. Few people starting businesses have equivalent knowledge of intellectualproperty. Hence, consulting a lawyer should become a prior necessity. Here, the consultant

lawyer steps into the shoes of a doctor, the more open one is about his intellectual property themore ways he can find out for protecting it.

To summarize, since now we have all have entered the IPR Regime, let it become a missionstatement of every citizen of India and say,’I want to live in a developed India’.

© 2006-2010.( Contact e-mail id:[email protected]; Ph.No:080-41215781 /Mob:98451 34418)

care for your intellectual property

Documents