intellectual property rights (dr.milind dandekar)

8/3/2019 Intellectual Property Rights (Dr.milind Dandekar)

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Intellectual Property Rights

&

Higher Learning Technical Institutions

Dr.Milind DandekarAssociate Professor, Dept. of IPE, SGSITS,

Indore


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Intellectual Property Rights

Introduction

The Concept of Intellectual Property

Different Types of IP Rationale behind Intellectual Property

Balancing the Rights of Owner & Society

Enforcement of IPR Issues before us regarding IPR


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What is Intellectual Property ?

Design ?

Piece of Art ?

Book ?

Film ?

Invention or Formula ?

Or just an idea?

Any thing created by mans

Ingenuity, Knowledge & Skill

besides labor and capital


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Concept of Property

Lay mind : Some material object belonging to aparticular person.

Concept of Ownership is critical to Concept of

Property Ownership: Right to Possess, Use & Dispose at

the desire of the owner & to exclude others

Society recognition is must

Legal Definition : Bundle of rights that the lawconfers on a person(s) by virtue of ownershipand possession of an object.


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Types of Property

Two types : Tangible & Intangible

Tangible: Land ,Building etc referred to as

Corporeal Property

Intangible : Copyright, Idea, Innovation etc

referred to as Incorporeal Property

Intellectual Property is Incorporeal Property and itderives its value from ideas.

IP is a dynamic area while corporeal property is a


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Classification of IP

Industrial Property : Rights relating to Inventions,

Industrial Designs , Trade Marks,Geographical Indication & Appellation ofOrigin

Copyright : Rights relating to creation of humanmind in the fields of Literature, Music, Art andAudio-Visual works (Related Rights &Neighbouring Rights)


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Seven types of IP

TRIPS Agreement of the WTO recognizes seven types of IntellectualProperty Rights

1. Copyright & Related/Neighbouring Rights

2. Trade Marks,Trade Names, Service Marks3. Geographical Indications4. Industrial Designs

5. Patents6. Layout Designs of Integrated Circuits

7. Undisclosed Information

TRIPS : Trade Related Aspects Of Intellectual Property RightsWTO : World Trade Organisation


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Copyright

Copyright is granted for original,literarymusical,artistic or audio-visual works

The creations of authors, playwrites,composers, artists and filmmakers

It includes rights of reproduction,communication to the public, adaptationand translation of work


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Trade Marks

Trade Marks & Service Marks :

Distinctive Symbols of the company

Trade Names :Name of the enterprise thatindividualizes the name of the companyGeographical Indications(GI)

Specific geographical origin and quality/reputation


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Industrial Design

The ornamental or aesthetic aspect of anarticle

Serves as a tool for product differentiation

Attracts customers by enhanced visualappeal and become IP to be protected

Applied to wide range of products fromindustry or handicraft


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Patent

A Patent is a statutory right grantedfor a limited period to an inventor inrespect of an invention to excludeany other person frommanufacturing, using or selling thepatented product or from using the

patented process, without duepermission.

Novelty, Inventive step, Industrial


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Layout Designs-Integrated Circuits

Layout Designs (topography) of integrated circuits isrelatively new area in IP

Protected as IP against copying but improved design by

reverse engineering is regarded as fair.

Undisclosed Information

Undisclosed Information gets recognition as a kind of IPto be protected under TRIPS

It virtually restricts honest practices to protection of trade

secrets.


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Rationale behind IPR

1. Creative activity culminating in IP can beincreased by encouragement but not in

adequate quantity without economic incentives.

2. Adequate Economic Benefits as just rewardsfor creation of IP through grant of Monopoly

Rights even if for limited period.

3. The provision of the Global IP regime to ensureeconomic returns and safeguarding interests of

all concerned.


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Balancing the Rights

There can be no absolute rights in IP becauseall individual rights are subject to the recognition

of the rights of other individuals and the rights ofthe society.

Role of State & purpose of Law : Harmonizeconflicting claims and achieve balance.


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IP & Constitution of India

The Constitution of India under entry 49 of Union listof matters mentions about Patents, Inventions,Designs, Copyright, Trade Marks & Merchandise;butit makes no specific reference to IP

However IP as a form of property can be put underArticle 300A dealing with property and be entitled to

a legal right.


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Enforcement of IPR

India and the TRIPS Agreement : India has to alarge extent complied with its obligations underTRIPS through a series of amendments to itsexisting laws and through new legislations.However the TRIPS agreement leaves someroom to deal with various issues at national levelsuch as definition of an invention, exception toexclusive rights, compulsory licenses and others


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New Legislations/Amendments to

Existing Legislations1. The Trade Marks Act,19992. The Designs Act, 20003. The Protection of Plant Varieties and Farmers Rights Act,

20014. The Geographical Indication of Goods

(Registration & Protection) Act, 19991. The Semiconductor Integrated Circuits Layout Designs

Bill, 19992. The Patents Act 1970,as amended by Patents(Amendment)

Act, 2002

3. The Copyright Act, 1957 togather with InternationalCopyright Order, 1999

All issues regarding IPR in India are governed by theselegislations


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Issues before Us

What is a patentable Invention ?

A new product or process involving an

inventive step and capable of industrialapplication

What is not patentable ?


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Procedure for Obtaining Patent

Who can apply ?

A person claiming to be the true and firstinventor of an invention

Filing a Patent Application:

Only one application is filed for one

invention along with provisional orcomplete specification


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The Specification must contain :

Title, sufficiently indicating the subject matter

Relevant drawings/graphics

Full & particular description of invention

Details of its operation or use and the method by which itis to be performed

Disclosure of the best method of performing theinvention

Claims defining the scope of the invention substantiated

by the disclosure Abstract providing technical information

Declaration as to the inventiorship of the invention


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Search for anticipation by previous

publication and by prior claim

The search requires investigation for

1. Prior Applications

2. Patents Already Granted3. Already Published or Claimed

4. Impugned one

Any objection raised by the examiner areto be removed by applicant within 12months.


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Acceptance & Advertisement

Controller of Patents notifies it to theapplicant and also advertises it in the

Official Gazette for public inspection

From date of advertisement to the date ofsealing the patent, the applicant enjoys the

privileges and rights as if a patent had

been sealed on the date of advertisementexcept the right of infringement.


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Opposition to the grant of Patent

Notice to Controller within 4 months from the date ofadvertisement on following grounds :

1. Wrongfully obtained by the inventor

2. Anticipated in a specification filed for another patent

earlier3. Publicly known in India before priority date of claim

4. Not an invention within the meaning of the Act

5. The information furnished is false

6. Geographical origin is not disclosed or falsely

disclosed7. Convention application not filed in India in prescribed

time for the same invention in a convention country


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Grant of Patent

Where the application for a patent hasbeen accepted w/o opposition or after

disposing the opposition, a patent shall be

granted if the applicant makes a requestwithin 6 months of advertisement.

The patent so granted shall be sealed with

the seal of the patent office and the dateshall be entered in the register.


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Rights of Patent

Right to exploit the patent Right to grant licence etc

Right to surrender

Right to sue for infringementLIMITATIONS :

Purposes of Government For imparting instructions to pupils

Medicine or Drug imported by the Governmentfor its use in hospital, medical institute, Lab,maintained by or on behalf of the Government.


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Difficulties Primarily Faced in Creation ofIPR in Academic & Research Institute:

1. Lack of knowledge regarding thenovelty/innovation of a research workpersuade by a scholar with respect to its

suitability for creation of IPR.

- Patent Search


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2. Absence of systematic planning andorganizing of a research programme inreference to filing of patent.

- To conceive the part or phasesof any developmental work

justifying

novelty/innovation.


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3. Absence of knowledge regarding thetimely disclosure of invention to register

the right of inventor- ship/creatorship

4. Lack of idea regarding the type of

information, level of technicality andextent of experience /data that can bedisclosed or made public by lecturing,

publication etc. without harming theinterest of the work with respect to its rightfor IP.


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5. Poor knowledge of preparation of

technical and legal write-up of a work to justifying its suitability to register as

IPR prior to the legal consideration.

6. Non availability of legal staff / cell inmost of the academic institutes to prepareand plead the case of IPR.


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Immediate measures to be taken :

Activation of the system for

Development of Awareness, Attitude andCulture for creation of IP


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Critical Issues in IP Creation & IPManagement in

Higher Learning Technical Institutions

IITs/IISc

NITs/RECs

BITS

Engg. Colleges

University Science Dept.


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Critical Issues

Which IPs should be created?

Which IPs can be created?

Why IP should be created?

How much IP should be created?

How much IP can be created?

How to create IP?

Challenges in IP Education

G th f W ld P t t Fili


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Year Applicatio

ns Filed

Growth

Rate (%)1977 771,700 12.89

1984 859,670 4.76

1985 1,202,607 39.89

1990 1,668,245 9.01

1994 2,405,221 17.10

1995 2,885,962 19.99

1996 3,569,839 23.701997 4,577,192 28.22

1999 7,276,337 58.96

2000 9,975,173 37.09

Growth of World Patent Filing


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Linkage between HLTIs/ Universitiesand the Industry

Producing manpower for the industry

Designing useful curriculum

Teaching concepts required by the industry

Create IP for the industry


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How to create IP in HLTIs

Creation of IP culture

Change of mind set

Commercially worthy (patentable) research

Conversion of IP to IPRs Transfer of Technology

Development of skills (Negotiation, draftingagreements, patent valuation etc)


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How to create IP in HLTIs

Faculty Motivation (Linkage with Higher Position) Financial reward & Financial stake

Faculty should do what they should instead of what they can

Development of appropriate Faculty Performance Appraisal Systems

Development of IP faculty

Research in IP Area Importance of analysis of IP teaching requirements


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Emerging Need of IPR Education

Students (B.Tech./M.Tech./MBA/Ph.D..) wantmore lucrative jobs

Industry wants IP-educated engineers andmanagers

Industry is willing to pay more to good IP-literates

More number of students for registration in IPRcourses


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Certain issues related to IPR Creation & IPRManagement are critical

There is need for serious brain storming on what, when,

where and how much of IP Education, Training andResearch

Why has ceased to be debatable

MHRD initiatives in this direction reflect governmentsvision


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THANK YOU

intellectual property rights (dr.milind dandekar)

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