Intellectual Property Rights
Unit-II
Types of Intellectual Property and legislations covering IPR in India:-Patents, Copyrights, Trademark, Industrial design, Geographical indications, Integrated circuits, and Trade secrets.
1. Patents
A patent is a special right given to the inventor of something new. It means that only the inventor can decide how their invention can be used by others. In return for this right, the inventor has to tell the public about their invention by publishing a document called a patent. This document has all the technical details about the invention.
There are three main types of patents:
Utility Patents: This is the most common type of patent and covers the invention or discovery of any new and useful process, the machine, manufacture, or composition of matter, or any new and useful improvement thereof.
Design Patents: This type of patent covers the ornamental design of an article of manufacture, such as a unique shape or surface ornamentation.
Plant Patents: This type of patent covers any distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state.
To obtain a patent, the inventor must file a patent application with the relevant government agency, such as the United States Patent and Trademark Office (USPTO) in the United States. The patent application must include a detailed description of the invention, including how it works and how it is made, as well as any drawings or diagrams necessary to understand the invention.
The relevant government agency for patent application in India is the Indian Patent Office (IPO), which is a part of the Office of the Controller General of Patents, Designs, and Trademarks under the Ministry of Commerce and Industry. The IPO is responsible for the examination, granting, and registration of patents in India. It has its headquarters in Kolkata, and branch offices in Delhi, Mumbai, and Chennai.
Once the patent application is filed, it undergoes a review process to determine if the invention is novel, non-obvious, and useful. If the patent is granted, the inventor can enforce their patent rights against anyone who infringes on their invention.
Merits of patents:
Exclusive rights: The inventor gets the exclusive right to make, use, and sell their invention, which can lead to competitive advantage and higher profits.
Incentive for innovation: Patents provide an incentive for inventors to invest time and money into developing new and useful products and processes
Public disclosure: In exchange for the exclusive rights granted by a patent, the inventor must publicly disclose their invention, which can lead to further innovation and technological advancements.
Demerits of patents:
Cost: Obtaining a patent can be expensive, especially for small businesses or individual inventors.
Time-consuming: The patent application process can be lengthy and time-consuming, which can delay the inventor's ability to commercialize their invention.
Patent trolls: Some companies or individuals acquire patents solely for the purpose of suing others for infringement, which can stifle innovation and lead to frivolous lawsuits.
2. Copyrights
Copyright is a form of intellectual property protection that applies to original works of authorship fixed in a tangible medium of expression, such as literary, artistic, musical, and other creative works. It grants the creator of the original work the exclusive right to reproduce, distribute, perform, display, and create derivative works based on the original work.
Copyright protection is automatic and arises as soon as an original work is created and fixed in a tangible medium of expression. However, registration with the relevant copyright office is generally recommended, as it provides additional legal benefits and protections.
The term of copyright protection varies depending on the type of work and the date of creation or publication. For works created after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years.
There are several types of works that are eligible for copyright protection, including:
Literary works: Books, articles, and other written works
Musical works: Songs, instrumental compositions, and other musical compositions
Dramatic works: Plays, screenplays, and other works intended for performance
Artistic works: Paintings, sculptures, and other visual arts
Audiovisual works: Films, videos, and other works that combine visual and audio elements
Architectural works: Buildings and other structures.
Copyright owners have several exclusive rights, including:
Reproduction: The right to make copies of the work
Distribution: The right to distribute copies of the work to the public
Performance: The right to perform the work publicly
Display: The right to display the work publicly
Derivative works: The right to create derivative works based on the original work.
Infringement of copyright occurs when someone violates one or more of the exclusive rights of the copyright owner without permission or authorization. Penalties for copyright infringement can include injunctions, damages, and in some cases, criminal sanctions.
3. Trademarks
Trademarks are distinctive signs or symbols that are used by businesses to identify and distinguish their goods and services from those of others. They can take various forms such as logos, brand names, slogans, and even sounds and smells. Trademarks play a crucial role in establishing brand identity and protecting the reputation and goodwill of a business.
Trademarks can be registered or unregistered. Registered trademarks offer the owner exclusive rights to use the trademark in connection with the specific goods or services for which it is registered. This prevents others from using a similar or identical trademark in the same field and enables the owner to take legal action against infringers.
There are two types of registered trademarks: word marks and device marks. A word mark is a trademark that consists of a word or a combination of words, while a device mark is a trademark that consists of a logo, design, or other visual elements. Some trademarks combine both word and device elements.
Unregistered trademarks, on the other hand, are not registered with any trademark office. They are established through use in commerce and are protected under common law. However, the protection afforded to unregistered trademarks is generally weaker than that of registered trademarks.
In the olden days, when things were made by hand, artisans would put their unique symbol or "mark" on their products to indicate that they were responsible for creating them. This is how trademarks began.
Trademarks can also be renewed periodically, ensuring continued protection for the owner. The duration of trademark protection varies by jurisdiction, but is typically between 10 and 15 years, with the possibility of renewal.
Overall, trademarks are an important tool for businesses to protect their brand identity and prevent others from using similar marks that could cause confusion among consumers.
4. Industrial Designs
Industrial design refers to the ornamental or aesthetic aspect of a useful article, including shape, configuration, pattern, or ornamentation that may be applied to an article to make it more appealing to the eye. Industrial design protection provides exclusive rights to prevent unauthorized copying or imitation of the design of an article.
The following are the details about industrial designs:
Types of Industrial Designs:
Two-dimensional industrial designs: These designs are applied to two-dimensional articles, such as textiles, wallpapers, and patterns.
Three-dimensional industrial designs: These designs are applied to three-dimensional articles, such as furniture, electronic devices, and automobiles.
Graphic symbols: These designs include logos, icons, and other graphic designs that identify a particular product or service.
Protection of Industrial Designs:
Industrial designs can be protected by registration, which provides exclusive rights to the owner of the design. Registration requirements and protection terms vary depending on the country where the registration is filed. In general, the protection term of an industrial design is usually between 10 to 25 years, depending on the country.
Benefits of Industrial Designs:
Exclusivity: Industrial design registration provides exclusive rights to the owner, which prevents unauthorized copying or imitation of the design.
Competitive advantage: Industrial design protection can give a business a competitive advantage by making its products more visually appealing and distinguishable from its competitors.
Marketing and branding: Industrial designs can be an essential component of marketing and branding strategies.
Revenue generation: Registered industrial designs can be licensed or sold to others, which can generate revenue for the owner.
Drawbacks of Industrial Designs:
Limited protection: Industrial designs are protected only for their ornamental or aesthetic features and do not protect the functional aspects of an article.
Costly registration process: Registering an industrial design can be a costly and time-consuming process.
Limited geographical protection: Industrial design protection is limited to the countries where the design is registered.
Difficulty in Enforcement: It can be challenging to enforce industrial design rights, particularly in countries with weak legal systems or where counterfeiting is prevalent.
5. Geographical indications
Geographical indications (GIs) refer to a specific type of intellectual property that identifies a product as originating from a particular region, where the quality, reputation, or other characteristics of the product is essentially attributable to its geographical origin. In other words, it is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that origin. The use of GI also promotes and protects the traditional knowledge, skills, and cultural heritage associated with a particular product or region.
For example, Roquefort cheese can only be produced in a specific region of France, and its unique flavour and texture are attributed to the specific climate, soil, and grazing habits of the sheep in that area. Champagne is a sparkling wine that can only be produced in the Champagne region of France, using specific methods of production that have been established for centuries.
In terms of legal protection, a geographical indication can be registered as a certification mark or collective mark, which grants the right to use the mark to producers who meet specific criteria related to the product's origin and characteristics. This helps to prevent others from using the name of the product or region to market products that are not genuine or do not meet the specific standards associated with the product.
Overall, geographical indications serve to promote and protect the unique qualities and characteristics of products that are closely tied to their origin and the traditional knowledge and practices associated with that region.
6. Integrated circuits
Integrated circuits (ICs) are electronic components consisting of a large number of miniature electronic devices, such as transistors, diodes, and resistors, that are interconnected on a semiconductor substrate to perform a specific function or set of functions. ICs have revolutionized the electronics industry by making it possible to pack a large number of electronic components into a small space, which has led to the development of smaller, faster, and more efficient electronic devices.
In India, the Semiconductor Integrated Circuits Layout-Design Act, 2000 (SICLDA) is the primary legislation governing the protection of integrated circuits. The SICLDA provides for ppthe registration of layout designs of integrated circuits and grants exclusive rights to the registered owner to reproaduce, sell, and distribute the layout design.
Under the SICLDA, a layout design is eligible for registration if it is original and not previously commercially exploited within India or outside, and the application for registration is made within two years of the commercial exploitation of the layout design anywhere in the world. The registration of a layout design is valid for a period of ten years, and renewable for an additional ten-year period.
The SICLDA provides for civil remedies for infringement of registered layout designs, including injunctions, damages, and accounts of profits. Criminal penalties, including imprisonment and fines, are also provided for in case of willful infringement of a registered layout design.
Overall, the SICLDA aims to protect the rights of integrated circuit designers and to promote the development of the semiconductor industry in India by encouraging the creation of original and innovative layout designs.
7. Trade Secrets
Trade secrets refer to any confidential business information that provides a competitive advantage to a company or organization. This information can include formulas, processes, designs, or other valuable information that is not generally known to the public or competitors. Trade secrets can be a critical part of a company's intellectual property portfolio, and they can provide significant benefits, such as protecting confidential information, maintaining a competitive edge, and preventing others from using the information without permission.
e.g.- Recipes, Marketing plans, financial projections and methods of conducting business can all constitute trade secrets.
Trade secrets are protected by law in most countries, and companies can take legal action against individuals or organizations that disclose or misuse their trade secrets. However, unlike patents, which have a defined term and eventually expire, trade secrets can be protected indefinitely as long as the information remains confidential and is not disclosed to the public.
There are several types of trade secrets, including:
Formulas and recipes: This includes any confidential information related to a company's unique formulas or recipes, such as those used in the food or beverage industry.
Manufacturing processes: This includes any confidential information related to a company's manufacturing processes or techniques, such as those used in the automotive or aerospace industries.
Customer lists and marketing strategies: This includes any confidential information related to a company's customer lists or marketing strategies, such as those used in the retail or service industries.
Computer software and algorithms: This includes any confidential information related to a company's software programs or algorithms, such as those used in the technology industry.
To protect trade secrets, companies typically use a combination of physical, technical, and legal safeguards, such as confidentiality agreements, access controls, encryption, and other security measures.
Intellectual property rights (IPR) in India
Intellectual property rights (IPR) in India are governed by various laws and regulations, including:
The Patents Act, 1970: This act regulates the grant of patents and their rights in India. It provides for the process of filing, examination, and granting of patents, and also covers issues such as infringement, compulsory licensing, and revocation.
The Trade Marks Act, 1999: This act provides for the registration and protection of trademarks in India. It covers issues such as the registration process, infringement, passing off, and the rights and obligations of trademark owners.
The Copyright Act, 1957: This act provides for the registration and protection of copyrights in India. It covers issues such as the scope of copyright protection, the process of registration, infringement, and the rights and obligations of copyright owners.
The Designs Act, 2000: This act provides for the registration and protection of designs in India. It covers issues such as the process of registration, infringement, and the rights and obligations of design owners.
The Geographical Indications of Goods (Registration and Protection) Act, 1999: This act provides for the registration and protection of geographical indications in India. It covers issues such as the process of registration, infringement, and the rights and obligations of geographical indication owners.
The Semiconductor Integrated Circuits Layout-Design Act, 2000: This act provides for the registration and protection of semiconductor integrated circuit layout designs in India. It covers issues such as the process of registration, infringement, and the rights and obligations of layout-design owners.
In addition to these acts, there are various rules and regulations that govern the implementation of IPR in India, including the Patent Rules, 2003, the Trade Marks Rules, 2017, the Copyright Rules, 2013, the Designs Rules, 2001, and the Geographical Indications of Goods (Registration and Protection) Rules, 2002.
The Indian government has also established specialized bodies to administer and enforce IPR in the country, such as the Indian Patent Office, the Trade Marks Registry, the Copyright Office, and the Geographical Indications Registry.
India is also a signatory to various international agreements and conventions related to IPR, such as the World Intellectual Property Organization (WIPO) Copyright Treaty, the WIPO Performances and Phonograms Treaty, and the Paris Convention for the Protection of Industrial Property.