Intellectual Property Management Cell
Jawaharlal Nehru University


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Introduction

Evolution, a process by which the human society developed and progressed, is achieved by human intellect and creativity. It is through this intellectual creativity that man advanced from Stone Age to Industrialized and Hi-Tech society. Ideas and knowledge became an important and indispensible part of trade, development and progress. Intellectual power of homo-sapiens discovered new medicinal herbs and medicines, technological developments through inventions were made possible, historical literary works came into being by the poetic, creative minds. But a time came during these phases of development where the intellectuals in almost every field including – science, literature, etc., stopped sharing their knowledge related to their creations, inventions and knowledge, etc. and restricted such knowledge to a few, making trade secrets rule the market. This was basically due to the reason that the discoveries, researches, innovative ideas, creations, etc. for which the owner had put so much of efforts, financial investments and time during this phase were always at a risk of being stolen, used without the owners’ prior knowledge or permission and no benefits to the owner. This situation led to stagnation in markets and slowing down of development process. The need of a protective law in this regard became a pressing issue. Acknowledging the need the international institutions brought into existence various Conventions and Treaties which incorporated the basic Intellectual Property Laws. Such laws after modifications were accepted by the countries around the world slowly and gradually.

Purpose

The Intellectual Property Rights Laws broadened the concept of ‘property’. Prior to the enactment of Intellectual Property laws, ‘property’ was defined to mean only the movable and immovable PHYSICAL objects. It was an era where the main concern was layed on the possession and ownership of TANGIBLE articles.

With the passage of time as the human civilization entered the era of INDUSTRIALIZATION where industrial development accelerated and the importance of new innovative ideas was felt and acknowledged. In such an era when the inventors, creators and the intellectual minds with a fear of their work being stolen and misused started restricting their knowledge to a few trusted and close and with the increasing disputes regarding the possession, ownership, rights and obligations related to INTANGIBLE articles an expansion in the definition of the term ‘property’ introduced under Intellectual Property Laws was welcomed, as the said definition included INTANGIBLE ASSETS such as ideas as well as their expression as property. Hence, with the help of IP Laws the INTANGIBLE ASSETS which are formed with a lot of efforts by someone came under the protective framework of law.

How IP Laws help?

Intellectual Property Rights bestows rights to owners and creators for their intellectual creativity. Broadly speaking the IP Laws bequeaths such rights on the creator or owner only when the Intellectual Property is innovative, novel, distinctive and/or industrially applicable. It should be kept in mind that the protection for Intellectual Property Rights granted by any particular country under their IP Law is country centric, that is to say, a creator has to apply for protection in each country (s)he wishes to get such protection. Such rights are conferred to facilitate advancement and reward originality by offering exclusionary rights to the creator or inventor against any misappropriation or use of work without his/her prior knowledge, though to maintain an equilibrium, the law grants such rights for limited duration of time. To put it in other words intellectual property rights protects individuals’ intangible assets by protecting privileges attached to such creations which rightfully  is owned by the creator or owner and simultaneously encourages and motivates for Research and Development as well as it secures credibility in commercial transactions by assuring authentication of products. The IP Laws endow creator or the owner with the exclusionary rights of using it as (s)he wishes with the exclusion of others. The creator can rent, sell, assign, modify or use his/her creation in whatever manner they wish to.

Types

The bundle of exclusionary rights which form a part of IPR can be further categorized as under mentioned:

1.  Patent –
A patent is an exclusionary right granted by the Government for an invention to an inventor in exchange for full disclosure of the invention. Prerequisites for an invention to be patented are – it should be new, non-obvious and industrially applicable. For obtaining a patent, the owner has to file an application along with full disclosure of invention in the patent office along with the patent fees. On receiving such an application the patent office conducts searches to ascertain the prerequisites. Thereafter the patent office publishes the application and conducts in-depth examination. It further looks into the matter if any objections are raised to the application and finally after it is convinced it grants the patent.

2.  Copyright and Related  (Neighbouring) Rights-
Copyright and related rights are basically rights bequeathed by law to the creators of literary, dramatic, musical and artistic works and producers of cinematographic films and sound recordings. It is a bundle of rights including rights of reproduction, communication to the public, adaptation and translation of the work. In general, registration is voluntary. This is so because under the Indian law, registration of the copyright or related work is not required either for acquiring a copyright or for enforcing it in an infringement action. However, registration has evidentiary value in a court of law. The procedure for filing and prosecuting copyright application would include the steps of filing an application for copyright accompanied by four copies of the work along with the prescribed fee at Copyright Office, where a filing number and filling date is provided and a filing receipt is issued. Thereafter, the application is examined, defects are communicated to the applicant and once the application is found to be in order it is accepted and the Copyright Office issues the registration certificate.

3.  Trademark/Service marks –
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Generally when the term trademark is used, it includes the term service marks. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.
In India, any person who claims to be the trademark proprietor can apply for the trademark registration of the goods and services. For registration, the application can be filed in the Trademark Office, in whose jurisdiction the principal place of business falls. If the principal office is not situated in India then the applicant can file the application in whose jurisdiction the lawyer appointed by the applicant is situated. In case of a company which is yet to be formed then anyone can apply for the registration on the behalf of the company. In India, only the trademark proprietor whose trademark has been registered can put the symbol A® into use.

4.  Trade Secrets –
Trade Secret points towards a formula, pattern, any instrument, design which is kept confidential and through which any business or trade can edge over its rival and can enjoy economic gains. Trade secrets can be anything from a chemical compound, manufacturing process, to designs or preserving materials or even list of consumers. It is also known as ‘Confidential Information’ or ‘Classified Information’. Certain prerequisites of something to be a trade secret are – it should not be known to the public; it provides some financial sort of gain to its holders; it involves reasonable efforts from the holder side for maintaining secrecy;

5.  Geographical Indications –
A geographical indication is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg. a town, region, or country). The use of a geographical indication may act as a certification that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin.

6.  Industrial Designs-
Industrial design is an
applied art whereby the aesthetics and usability of mass-produced products may be improved for marketability and production. The role of an Industrial Designer is to create and execute design solutions towards problems of form, usability, user ergonomics, engineering, marketing, brand development and sales.

7.  Integrated Circuits –
An integrated circuit (also known as microcircuit, microchip, silicon chip, or chip) is a miniaturized
electronic circuit (consisting mainly of semiconductor devices, as well as passive components) that has been manufactured in the surface of a thin substrate of semiconductor material.

The Intellectual Property Laws also provides with the law for protection against Unfair Competition. The above mentioned types are just a few Intellectual Property Rights, the law protects and covers all other rights also which are resulting from intellectual activities in the industrial, scientific, literary or artistic fields.

In brief a list of the works which are included as intellectual property have been under mentioned:

(1) Literary, artistic and scientific works;

(2) Performances of performing artists, phonograms and broadcasts;

(3) Inventions in all fields of human endeavour;

(4) Scientific discoveries;

(5) Industrial designs;

     (6) Trademarks, service marks and commercial names and designations such as Words or word combinations, Images, figures, etc.;

(7) Protection of new varieties of plants; and

     (8) All other works resulting from intellectual activities in the industrial, scientific, literary or artistic fields.

 

Few of the examples of works which would not be included as intellectual property are:

1.  Not new or original;

2.  mathematical theories, algorithms or mere discovery of formula or scientific principle discovery of any living thing or non-living substances occurring in nature;

3.  political speeches;

4.  court decisions and legal texts;

5.  business schemes;

6.  anything prohibited by the national law;

7.  anything against morality;

8.  anything injurious to human, animal or plant life and health or to the environment;

9.  the use of a work which could be likely to deceive or cause confusion;

10. work which compromises or contains any scandalous or obscene matter or any matter which is likely to hurt the religious susceptibilities of any class or section of the citizen

Who can apply

An application can be filed by any of the following persons:

  1. By any person claiming to be the true and first creator or owner of the intellectual property;
  2. By  any person being the assignee of the person claiming to be the true and first creator or owner of the intellectual property in respect of the right to make such an application; or
  3. By the legal representatives of the deceased person who immediately before his death was entitled to make such an application

Conclusion

The IPR regimes have set a stage for economic integration and its standardization. The IPR Laws help in tuning the economy of the country with the changing industrial world, to strengthen its position in trade and related arenas. Moreover, incorporation of such IP Laws provides a protection and encouragement to the creators or owners for researsh and development and also a satisfaction to the consumers that the product purchased are worth (authentic) the amount paid.

The Indian Government has established statutory, administrative and judicial framework for protecting the intellectual property rights in the Indian territory.

Sources

1.  http://en.wikipedia.org/wiki/Intellectual_property

2.  http://www.indianembassy.org/policy/ipr/ipr_2000.htm

3.  http://iprindia.org/patent.htm

4.  http://www.dipp.nic.in/ipr.htm

5.  http://www.patentoffice.nic.in/ipr/patent/patents.htm