BUSINESS

Intellectual Property Rights: a primer

DEMYSTIFYING PATENTING

This is the first in a series of occasional articles by N. R. Subbaram in the form of questions and answers on Intellectual Property Rights and patents.

QUESTION: What is the meaning of the term IPR (Intellectual Property Rights)?

ANSWER: Intellectual Property (IP) is a class of property emanating primarily from the activities of the human intellect. Any property, movable or immovable, is legally protected to prevent it from being stolen. Similarly, the rights in an intellectual property created need also to be protected to prevent infringement.

The legal rights accrued on the intellectual property created are termed Intellectual Property Rights (IPR).

These rights are governed by the law on intellectual property rights of the country which grants such rights.

What are the different forms of IPR?

Patents: These are legal rights granted for new inventions employing scientific and technical knowledge. Examples: A new drug for the treatment of AIDS and a new cell phone.

Industrial Designs: A design is an idea or conception as to the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article, two or three-dimensional or both, by any industrial process or means which in the finished article appeal to and are judged solely by the eye or product.

Examples: Designs as applied to shoes, TV, textiles.

Trade Marks: A trade mark is a visual symbol in the form of a word, device or label applied to an article of manufacture or commerce with a view to indicating to the public the origin of manufacture of the goods affixed with that mark .It distinguishes such goods from others in the trade. Examples: Coca Cola in soft drinks, SONY in electronic goods.

The concept had its origin in the Common Law. Subsequently it came to be governed by the statutory laws of each country. Examples: Poems, artistic drawings, paintings, computer / programs.

Protection for new plant varieties: TRIPS provisions of the WTO Agreement make it mandatory for member countries to provide protection for new plant varieties. Examples: New variety of rice or wheat.

The provisions have given member countries two options for providing protection to new plant varieties — (i) under the patent law itself and (ii) by a separate system (called Sui generis system).

Geographical Indications: These are indications that identify goods as originating in the territory of a country, a region or a locality in that territory, where a specific quality, reputation or other characteristic of the goods is essentially attributed to their geographical origin. Examples: Darjeeling tea, Kancheepuram sari.

Can the legal rights in an intellectual property secured in one country be enforced in another country?

The legal rights secured for an intellectual property under appropriate legislation can be enforced only within the boundaries of the country which grants such rights.

For example, the rights secured by the grant of a patent in India can be enforced only in India.

In other words, there is nothing like a world patent or an international patent. Hence, if one desires protection for an IP created for his invention in different countries, he has to make separate applications in each country according to the law and practice prevailing in that country.

This situation will prevail under the WTO regime also.

In other words, the TRIPS provisions of the WTO Agreement do not envisage one patent that will be valid in all member countries.

Is protection of IPR essential for commercial success of a product / process?

It is not necessary that a product / process (invention) should be protected under an appropriate IP law for its commercialisation. The inventor has the right to commercialise the invention if the said invention is not already protected by somebody else.

However, protection of IP is considered essential for the promotion of technological, industrial and economical development of a country as it provides incentives for the inventor and ensures adequate returns on investment made for commercialisation of the invention.

What are the benefits of the Intellectual Property system, especially the patent system?

Among IP systems, patents can be said to be the most common, important and complicated one because of its techno-legal nature and the widest and strongest legal protection one can secure.

The benefits of the IP system are, therefore, explained with reference to the patent system. However, it should be kept in mind that similar benefits are there in other species of IP.

Patents are, in addition to securing exclusive legal rights for the invention disclosed, useful for

(1) advancing knowledge and bringing new knowledge eventually into the public domain through the unique source of information contained therein;

(2) identifying the trends and experts in a field;

(3) evaluating the strength of competitors;

(4) identifying unexplored areas for undertaking R & D so as to become a leader in that area; and

(5) identifying unprotected areas to avoid infringement.

(The author is former head of the Intellectual Property Management Division of CSIR.)

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