iprs introduction tcjames

8/11/2019 IPRs Introduction TCJames

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Intellectual Property Rights An Introduction

T.C. JamesDirector Ministry of Commerce & IndustryIndia

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Objective and Plan of Presentation

ObjectiveTo give a general introduction to the conceptof Intellectual Property Rights (IPRs)

Plan of PresentationRationale of Protection

Different kinds of IPRs

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Definition of Intellectual Property

Intellectual Property shall include the rights relating to literary, artistic and scientific works, performances of performing artists, phonograms, and

broadcasts,

inventions in all fields of human endeavour scientific discoveries Industrial designs trademarks, service marks and commercial names and

designations protection against unfair competitionand all other rights resulting from intellectual activity in

the industrial, scientific, literary or artistic fields.(WIPO Convention)3


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Rationale: Rewarding individual

Principle of natural justiceCreator has a right to economic reward

Creator has a right to control the use of hiscreationEvolution of society, economy andtechnology necessitated a transparentsystem

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Basic Principle

Contract between creator and sovereignstateProtection for revelation

Balance between rights of creator and public interest

Rights and limitations and exceptions

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Art. 27 of Declaration of Human

Rights

1. Everyone has the right to participate inthe cultural life of the community, to enjoythe arts and to share in scientificadvancement and its benefits2. Everyone has the right to the protection

of the moral and material interests resultingfrom any scientific, literary or artistic

production of which he is the author.6


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Major Intellectual Property

Copyright and Related RightsIndustrial Property

PatentsIndustrial DesignsTrademarksGeographical IndicationsLayout Designs/Topographies Integrated Circuits

Trade SecretsProtection of New Plant Varieties

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IP Laws of India

Act Department

Copyright Act, 1957 Higher Education

Patents Act, 1970 Industrial Policy & Promotion

Design Act, 2000 Industrial Policy & Promotion

Trademarks Act, 1999 Industrial Policy & PromotionGeographical Indications of Goods (Registration

and Protection) Act(1999)Industrial Policy & Promotion

Semi-conductor Integrated Circuits Layout Design

Act, 2000

Information Technology

Protection of Plant Varieties and Farmers Rights Act, 2001

Agriculture and Cooperation

Competition Act Corporate Affairs

Biological Diversity Act, 2002 Environment and Forests

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What is Copyright?

Copyright is a legal term describing rightsgiven to creators for their literary andartistic works


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Scope of Copyright

Original Literary, Dramatic, Musical andArtistic WorksWork: Ideas expressed in material form

Cinematograph FilmsSound Recordings


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Rights

Two Kinds of RightsMoral Rights

To protect personality of author

Economic RightsTo bring economic benefits


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Moral Rights

Right of AuthorshipRight of Integrity Digital Manipulation No Right for Display

Inalienable Rights


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Economic Rights

Right of Reproduction Making copies e.g. an edition of a novel Storage in computer memory

Right of Distribution/Issuing Copies Digital Distribution

Right of Communication to the Public Public Performance Internet Communication


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Economic Rights

Adaptation Rights Conversion into another form e.g. literary to

drama Abridgement Picturizations, comic formats

Right to make a cinematograph film orsound recording

Translation Rights


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Economic Rights

Rental Rights Only for computer programs, cinematograph

films and sound recordings Exception: Not applies to a computer program

where program itself is not the essential objectof rental


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Resale Rights

Authors right to claim a share of the proceeds of each public resale of originalcopies of works of fine art or originalmanuscripts within the term of protectionResale price to exceed Rs. 10,000

Share to be fixed by Copyright Board Maximum 10%


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Ownership of Rights

Literary author Drama DramatistMusic Composer

Artistic work Artist e.g. Painter, sculptor,architectPhotograph Photographer Author of Computer Program Person whocauses the work to be created Cinematograph film producer Sound Recording - producer


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Author as Owner of Rights:

Exceptions

In the course of employment employer Employment by newspaper, magazine employer has publishing right; other rightswith author Photograph, painting, cinema for valuable

consideration person who pays money


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Author as Owner of Rights:

Exceptions

Lecture delivered in public PersondeliveringGovernment Work GovernmentPublic Undertaking Work publicundertakingWork of International Organization International Organization


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Securing Copyright

Formality free protectionVoluntary Registration (S. 44 & 45)

Registration does not as a matter of lawestablish that what is registered is in factand in law copyrightable subject matter


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Remedies for infringement

Civil suits for injunctions, damages,accountsCourt of jurisdiction: District Court wherecopyright owner resides or does businessCognizable offenceSeizure without warrant by Sub-Inspector


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Penalties and Punishments

First offence six months imprisonment andRs.50,000/- fineSecond offence one year imprisonment and

Rs.1,00,000/- fineMaximum three years imprisonment andRs.2,00,000/- fine

Knowing use of infringing copy of a computer programme attracts seven days imprisonment andRs.50,000/- fine


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What is not Infringement?

Fair dealing for private use, research,criticism, review, reportingJudicial proceedingsWork of legislatureDuring course of instructions andexamination


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What is not Infringement?

Performance in an educational institutionPerformance by an amateur club

Making three copies of a book, notavailable, for library useReproduction of public materialUse in religious or official ceremoniesincluding marriage processions


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Duration of Copyright

Literary, dramatic, Musical and Artistic Works published during life time of author: Life + 60years

All Other Works: 60 years from date of publication Posthumous, Anonymous Works Works of Government and Organizations Cinema and Sound Recording Photograph


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RELATED RIGHTS

Rights granted by law to communicators ofworks to the public Performers Broadcasting Organizations


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Performers Rights

Recording, broadcasting andcommunicating to the public of a live performancePresumption of transfer of performersright to cinematographic film producer

Duration: 50 years


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Rights Of Broadcasting

Organisations

Broadcast Reproduction RightRe-broadcasting, Recording andCommunicating to the Public of aBroadcastDuration: 25 Years


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What is a PATENT?

A patent is an exclusive right granted for an

invention, which is a product or a processthat provides a new way of doing something,or offers a new technical solution to a

problem The limited monopoly right granted by

the state enables an inventor to prohibitanother person from manufacturing, using orselling the patented product or from usingthe patented process, without permission.

Period of Patents - 20 Years29


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WHAT CAN BE PATENTED?

Inventions in all fields of technology,whether products or processes, if theymeet the criteria of

Novelty;

Non-obviousness (inventive step);Industrial application (utility).

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Conditions of Patentability

Novelty: Invention not known to publicprior to claim by inventorInventive Step: Invention would not beobvious to a person with ordinary skill inthe art

Industrial Application: Invention can bemade or used in any useful, practical

activity as distinct from purely intellectualor aesthetic one 31


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INVENTIONS NOT PATENTABLE

A machine whose primary or intended use orcommercial exploitation of which could becontrary to Public order or morality or which

causes serious prejudice to human, animal orplant life or health or to the environment :Gambling machine

device for house-breakingBiological warfare material or deviceTerminator gene technology

embryonic stem cell33


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Mere Discovery of a Scientific Principle

or Formulation of an Abstract Theoryor discovery of any living thing or nonlivingsubstance occurring in nature

Discovery adds to the human knowledge bydisclosing something ,not seen before, whereas,

Invention adds to human knowledge by suggesting anaction resulting in a new product or new processe .g. Archimedes Principle, SuperconductingPhenomenon as such not patentable ,However,An apparatus /method for technological 34


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INVENTIONS NOT PATENTABLET

The mere discovery of a new form of a knownsubstance which does not result in theenhancement of the known efficacy of that

substance ORthe mere discovery of any new property or newuse for a known substance OR

of the mere use of a known process, machineor apparatus, unless such known process

results in a new product or employs atleast one new reactant. 35


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A s ubstance obtained by mere admixture resulting

only in the aggregation of the properties of thecomponents thereof or a process for producingsuch substanceFor example , Not patentable-

Paracetamol (Antipyretic) +Brufen (analgesic) = A drug(antipyretic & analgesic )

A mixture of sugar and some colorants in water toproduce a soft drink is mere admixture

But, a mixture resulting into synergistic properties ofmixture of ingredients however, may be patentable

e.g Soap, Detergents,lubricants etc 36


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Mere arrangement or re-arrangement or

duplication of known devices ,each functioningindependently of one another in a known way

for example -. A Bucket fitted with torch, An Umbrella with fan A Clock and radio in a single cabinet A flour-mill provided with sieving

G) Deleted [ Methods ofTesting]

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Not patentable

Method of Agriculture or Horticulture

e. g. Cultivation of algae ,Producing new form of a known plant,

preparation of an improved soil

However, Agricultural Equipmentsare patentable

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A f di i l i l


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Any process for medicinal, surgical,curative, prophylactic, diagnostic,

therapeutic or other treatment of human beingsor

a similar treatment of animals to render them freeof disease or to increase their economic value orthat of their products

For example:o Removal of cancer tumor o Removal of dental plaque and carries ,o Surgical processes,o Processes relating to therapy,o Method of vaccination,o Blood transfusion

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However ,Method performed on tissues or fluidspermanently removed from the body

Surgical,therapeutic or diagnostic Apparatusor instrument

are not excluded from patentability

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Inventions Not Pa tentable

j) Plants & animals in whole or any partthereof other than microorganisms ,but including seeds, varieties and speciesand essentially biological process forproduction or propagation of plants & animals

For example ,Clones and new varieties of plants:- Not patentable

Microorganisms, per se: Not patentable ,A process for production of plants or animalsif it consists entirely of natural phenomena

such as crossing or selection- essentially biological- not patentable 41


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l) A literary,dramatic, musical or artistic work orany other aesthetic creation includingcinematographic work and television productions

These subject-matters fall under the copy-right

protection

A mere scheme or rule or method of performing

mental act or method of playing gameExamples

Scheme for learning a language , Method for solving acrossword puzzle , Method of learning a language,Method of teaching /learning - Not patentable

Novel apparatus for playing game or carryingout a scheme patentable

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Presentation of information

Examples

Any manner or method of expressing

information , whether by spoken words,Visual display, symbols ,diagrams or informationrecorded on a carrier

Topography of integrated circuits . An invention which, in effect, is the

Traditional Knowledge or an aggregationor duplication of known properties of traditionally known component orcomponents

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Traditional Knowledge is already in publicdomain, and hence , not p tent bleHowever, any value-addition usingTraditional Knowledge leading to a newprocess or product ,possessing novelty,inventive step and industrial applicability,

can be p tent ble

Inventions relating to atomic energy falling withinthe section 20(1) of the ATOMIC ENERGY ACT, 1962 .

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Industrial Designs


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What is an Industrial Design?

An industrial design is the ornamental oraesthetic aspect of an article which mustappeal to the eye . The design may consistof three-dimensional features, such as theshape or surface of an article, or of two-

dimensional features, such as patterns,lines or colour


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What is a Registrable Design?

Design means only the features of shape,configuration, pattern, ornament orcomposition of lines or colours applied to

any article whether in two dimensional orthree dimensional or in both forms, by anyindustrial process or means, whether

manual,mechanical or chemical, separateor combined, which in the finished articleappeal to and are judged solely by the eye .


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Consumer Products

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Pharmaceutical Product

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Textile & Jewellery

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Who may apply?

Any person claiming to be the proprietor The person for whom the design is executedfor a consideration

The person who has acquired the design right The author

Ri ht f th R i t d P i t


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Rights of the Registered Proprietor

The proprietor of the registered designhas the exclusive right to apply a designto any article in the class in which the

design is registeredPeriod of protection is ten years

extendable by 5 years..

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What is Excluded?

Any mode or principle of construction oranything which is in substance a meremechanical device

Trade mark Property mark

Artistic work


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What is not registrable?

A design which is not new or originalA design which has been disclosed to the

public anywhere in the world prior to thefilingA design which is not significantly

distinguishable from known designs orcombination of known designs


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What is not registrable?

A design which comprises or containsscandalous or obscene matter A design which is contrary to public orderor morality

NOT REGISTRABLE ARTICLES


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NOT REGISTRABLE ARTICLES

Calendar, certificates,forms, greeting cards,leaflets,Maps, building plan,medals

Labels,tokens,stampsReligious symbolsMere mechanical contrivance

Building and construction or real estateFlags,emblems,or signs of any country, computer icons Partsof articles not manufactured and soled separately

Layout designs of integrated circuits Basic shape, variationscommonly used in the tradeMere workshop alteration

Mere change in sizeAny principle or mode of construction of article 58

P l f i


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Penalty for piracy

If anyone contravenes the copyright in a design-

he is liable for every offence to pay a sum notexceeding Rs.25,000/- to the registered proprietorsubject to a maximum of Rs.50,000/- recoverableas contract debt in respect of any one design.The suit for infringement, recovery of damage

etc; should not be filed in any court below thecourt of District Judge

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4711 (Cologne)

TRADEMARKS


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What is a trademark?

A trademark is a distinctive sign whichidentifies certain goods or services as those produced or provided by a specific personor enterprise.

TRADE MARK


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TRADE MARK

A name of an enterprise or a M ark capable ofbeing represented graphically, distinguishing thegoods or services of one person from those of otherse. g. , LUX , Godrej, TVS ,Telco 555, APPLE

Trade Mark can be -

o sign , words, letters, numbers,o drawings, pictures, emblem,o colours or combination of colours,

o shape of goods,o graphic representation or packaging oro any combination of the above

as applied to an article or a product.62


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TRADE MARK


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TRADE MARK

Service Marks include banking, education, finance ,insurance, real estate ,entertainment,repairs, transport ,conveying news and information, advertising etc

Certification Trade marks : Certified by the Proprietoras having characteristics like geographical origin,

ingredients, quality e.g. AGMARK,WOOLMARKCertification mark cannot be used as a trade mark .

Certifies that the goods on which it is appliedare made of 100% wool. It is registered in 140countries and licensed to the companies whichassure that they will comply with the strictstandards set out by the Woolmark company ,the owner of the mark. 64

COLLECTIVE MARK


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COLLECTIVE MARK

COLLECTIVE MARK is a Mark that distinguishesthe goods -or services of members of associationfrom marks of other undertakingsWho owns collective Mark ?

Association of personsIt could be manufacturers, producers, suppliers,traders or other profession bodies like institute ofchartered accountants, test cricketers associationetc.

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WELLKNOWN MARKS


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WELLKNOWN MARKS

Coca Cola for soft drinkToblerone (Triangular-

shaped chocolates)Trade Names

Godrej- Furniture, Refrigerators, Storewell, Compactor etc

GE- Bulbs

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L f ll k b d


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Logo of some well known brands

Logo of Washing Powder ofHindustan Lever

Logo of iodised salt of HindustanLever

Logo of Lipton tea

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Forms of TM

Visual: Words, letters, numerals,devices including drawings andsymbols or 2-D representations of

object or a combination of two or moreof these, colour combinations or colour per se , 3-D sign as shape of goods or

packaging. Audio: Sounds, Musical Notes

Olfactory: Smells68


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CRITERIA OF TM PROTECTABILITY

Distinctive (basic function):

- inherent (e.g.RIN), or

- acquired by usage (e.g. TATA)Non-deceptive ( to avoid misleading)Not contrary to public order, morality

Special Requirements

A mark is registered for specified classes ofgoods or services.

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What is protected and


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What is protected and

whats not? Right to use TM in relation to goods/services as registered are protected (IfTM consists of several parts, protection

is for TM as a whole)State Emblems, Official Hallmarks,

Emblems of IntergovernmentalOrganizations cannot be used as TM.

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OFFENCES & PENALTIES

For any person, falsely applying TM or Selling orproviding services to which TM or false TradeDescription is applied-- Imprisonment for 6 months to 3 yrs and fine Rs.50000 to 2 lakh

For Second or Subsequent convictions,-

The enhanced penalty - Imprisonment for

1 year to 3 years and fine Rs 1 lakh to 2 lakh

RELIEF in Infringement and Passing off -

Injunction, Damages, Accounts of Profit An order for destructing or erasing labels and marks 71

GEOGRAPHICAL


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Paithani weaving

GEOGRAPHICAL

INDICATIONS

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What is a Geographical


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What is a Geographical

Indication?Geographical Indication is a n indication whichidentifies goods as agricultural goods,natural goods or manufactured goods as

originating, or manufactured in theterritory of country, or a region or localityin that territory, where a given quality ,

reputation or other characteristic of suchgoods is essentially attributable to itsgeographical origin.


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Explanation clarifies that GI need not be ageographical name

E.g. Alphonso, Basmati

Goods include goods of handicraft or ofindustry and also foodstuff.


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Registration

Provides for registrationOf GIs, Proprietors & Authorized Users[S.6(1)]

Valid for 10 years; renewable ad nauseum(S. 18)

Registration p rima facie evidence ofvalidity (S. 23)


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Who can Register?

Producer Any association of persons or producers, or Any Organization/authority established byor under any lawwhich represent the interests of the producersof the concerned goods [S.11(1)]Producer includes trader

Authorized User [S.17(1)]


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Rights

Exclusive right to use the GeographicalIndication on the goods

Right to obtain relief for infringement of

the Geographical Indication


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Working of the Act

Act brought into force on 15 September 2003

GI Registry established at Chennai

152 applications so far

104 products registered

No authorised user registered so far

No foreign product registered so far

One foreign application (Pisco) publishedApplications for Champagne and Scotch Whisky under process

No appeals against the decisions of the Registrar of GIs so far.


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Darjeeling Tea


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Kangra Tea


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Nanjangud Banana


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Coorg Orange



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Pochamppalli Ikat


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Mysore silk


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Bhavani Jamakkalam


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Kasuti Embroidery


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Kota Doria


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Kullu Shawl

Bidriware


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Bidriware

h


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Channapatna toys

M dh b i P i i


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Madhubani Paintings

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MADURAI SUNGUDI


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MADURAI SUNGUDI


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ORISSA IKAT


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ORISSA IKAT

PHULKARI EMBROIDERY


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PHULKARI EMBROIDERY

K i Sil Fili


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Karimnagar Silver Filigree

ROSE WOOD INLAY OF


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MYSORE


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Mysore sandal soap & oil


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ARANMULA KANNADI (METAL


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MIRROR)

Registered Proprietor:

Viswabrahmana Aranmula Kannadi NirmanSocietyViswabrahmana Buildings

S. Fort, Aranmula, Kerala

NAVARA RICE


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NAVARA RICE


PALAKKADAN MATTA RICE


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MALABAR PEPPER


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ALLEPPEY COIR


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BRASS BROIDERED COCONUT SHELLCRAFT OF KERALA
http://../Documents%20and%20Settings/tcjanes/Local%20Settings/Director%20CCRI/Desktop/2006_09_12/MVI_0624.AVIhttp://../Documents%20and%20Settings/tcjanes/Local%20Settings/Director%20CCRI/Desktop/2006_09_12/MVI_0624.AVI


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CRAFT OF KERALA

SCREWPINE CRAFTS OF KERALA


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MADDALAM OF PALAKAD


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MADDALAM OF PALAKAD

ALLEPPEY GREEN CARDAMOM


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ALLEPPEY GREEN CARDAMOM

POKKALI RICE


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Integrated Circuit


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Layout Designs

What is Layout Design?


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What is Layout Design?

Layout of transistors and other circuitelements, including lead wiresconnecting such elements and

expressed in any manner in asemiconductor integrated circuit (IC).

Why to protect?


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Why to protect?

IC Layouts are creations of humanmind;There is lot of investment of time and

money in the creation but copying isvery cheap;Fertile area with new circuit designsmade every day to cater forminiaturization and novel applications.

Why special protection?


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Why special protection?

There may not be novelty so cannot bepatented;Copyright protection does not returnthe investments since commercial lifeof a design is limited.

Protection is against


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Protection is against

Act of reproducing a layout design fullyor in parts;Importing, selling or distributing

commercially a protected layout designor IC incorporating it.

But identical design createdindependently by third party is

not prohibited.

Trade Secret


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Trade Secret

The best keptsecret till date

Trade Secrets


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Trade Secrets

Some inventions, data, informationcannot be protected by any of theavailable means of IPRs. Suchinformation is held confidential as atrade secret.Trade secret can be an invention, idea,survey method,manufacturing process,experiment results, chemical formula,recipe, financial strategy, clientdatabase etc.


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How to guard Trade Secret?


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How to guard Trade Secret?

Restricting number of people having accessto secret informationSigning confidentiality agreements with

business partners and employeesUsing protective techniques like digital datasecurity tools and restricting entry into area

where trade secret is worked or heldNational legislations provide protection inform of injunction and damages if secretinformation is illegally acquired or used.

Plant Varieities Protection


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Plant Varieities Protection

THE PROTECTION OF PLANT VARITIESAND FARMERS RIGHTS


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AND FARMERS RIGHTS

Registrable varieties and criteria: New Varieties

Novelty, Distinctiveness, uniformity and stability

Extant varietiesDistinctiveness, uniformity and stability

Persons who can Register Breeders, farmers, universities, agricultural institutes

Period of protection15 years for annual crops18 years for trees and vines

Rights of Breeders


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Rights of Breeders

Production

SaleMarketingDistributionExportImport

However, if the breeders variety is essentially derived from a farmers variety, the breeder cannot give anyauthorisation without the consent of the farmers or communities from whose varieties the protected variety isderived.

Farmers Rights


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Farmers Rights

To save, use, sow, re-sow, exchange, share or sell his

farm produce including seed in the same manner as hewas entitled earlier (Seeds for sale should not be branded)To full disclosure of the expected performance of the

Seeds or planting material by the plant breeder. Wherethese fail to perform in the manner claimed by the

breeder, the farmer may claim compensation from the

plant breeder .

Researchers Rights


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Researchers Rights

Free and complete access to protected materials for research use indeveloping new varieties of plants.

However, authorisation of the breeder is required whose repeated use of such variety as parental line is

necessary for commercial productionof such other newly developed variety.

Benefit Sharing


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Benefit Sharing

For a variety registered, NGOs or individuals can claim a

share of benefits that may arise from itscommercialisation on behalf of any village or localcommunity;Any individual or NGO can make a claim on behalf of avillage or local community for the contribution that theyhad made in the evolution of any variety registered under the Act.

Amount of Compensation as determined by the PlantVariety and Farmers Rights Authority should bedeposited by the breeder in the National Gene Fund.


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THANK YOU

For further information pl. contact atE-mail: [email protected]

Website:http://jamesthanickan.tripod.com
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