SR COLLEGE OF COMPETITIONS

10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

INTELLECTUAL PROPERTY RIGHTS

"Intellectual property" refers to creations of the mind. These creations can take many
different forms, such as artistic expressions, signs, symbols and names used in
commerce, designs and inventions.
Governments grant creators the right to prevent others from using their inventions,
designs or other creations — and to use that right to negotiate payment in return for
others using them. These are “intellectual property rights”.
They take a number of forms. For example, books, paintings and films come under
copyright; eligible inventions can be patented; brand names and product logos can be
registered as trademarks; and so on. Governments grant creators these rights as an
incentive to produce and spread ideas that will benefit society as a whole.
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS), negotiated during the 1986-94 Uruguay Round, introduced intellectual
property rules into the multilateral trading system for the first time.
TRIPS Agreement looks at different kinds of intellectual property rights and how to
protect them. The purpose is to ensure that minimum standards of protection exist in all
WTO members.
Some amount of intellectual protection existed even before the arrival of WTO and
TRIPS . The World Intellectual Property Organization (WIPO) had already existed
before the WTO was created .
World Intellectual Property Organization :- World Intellectual Property
Organization (WIPO) is the United Nations agency which serves the world’s innovators
and creators . It ensures that their ideas of innovators get the benefit of their
commercialization in the market. Besides these ideas improve quality of lives of the
people . It was established in 1967 and has 193 members .Its headquarters is at Geneva
(switzerland) .
SOME FORM OF PROTECTION THAT EXISTED EVEN BEFORE WIPO :-

PARIS CONVENTION FOR THE PROTECTION OF INDUSTRIAL PROPERTY 1883 :-

The Paris Convention, adopted in 1883, applies to industrial property in the widest
sense, including patents, trademarks, industrial designs, utility models, service marks,
trade names, geographical indications and the repression of unfair competition. This
international agreement was the first major step taken to help creators ensure that their
intellectual works were protected in other countries.
The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at
Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at
Stockholm in 1967, and was amended in 1979.

BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS

The Berne Convention, adopted in 1886, deals with the protection of works and the
rights of their authors. It provides creators such as authors, musicians, poets, painters
etc. with the means to control how their works are used, by whom, and on what terms.

CATEGORIES OF INTELLECTUAL PROPERTY

Intellectual Property rights commonly encompass Patent, Trademarks, Industrial

Design, Copyright, Geographical Indication of Goods, Integrated Circuit and Protection
of Undisclosed Information such as Trade Secrets.

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

Patent refers to inventions, each embodying a new idea capable of being made or used
by industry and involving a non-obvious inventive step. .
Patents: The Patents Act, 1970 as amended in 1999, 2002 and 2005.

Copyright refers Literary and artistic works, films, videos, records, broadcasts and
typographical arrangements, including computer software.

Copyright (or author’s right) is a legal term used to describe the rights that creators
have over their literary and artistic works. Works covered by copyright range from
books, music, paintings, sculpture, and films, to computer programs, databases,
advertisements, maps, and technical drawings.

Copyright: The Copyright Act amended in 1983, 1984 and 1992, 1994, 1999, 2012 and
the Copyright Rules, 1958. Government of India has notified Copyright (Amendment)
Rules, 2021 .

Registered Design refers to designs and design drawings, mainly right of aesthetic
objects, engineering components, architectural drawings, etc.
Design: The Design Act 2000

Trade Marks refers to product brand names, company logos, etc

A trademark in general refers to a mark that distinguishes one enterprise from the
other. Section 2(zb) of the Trademark Act [1999], defines a trademark as “a mark
capable of being represented graphically and which is capable of distinguishing the
goods or services of one person from those of others”.

Trade Mark: The Trade Marks Act, 1999

The Trade Marks Registry was established in India in 1940 and presently it
administers the Trade Marks Act, 1999 and the rules there under. It acts as a resource
and information centre and is a facilitator in matters relating to trade marks in the
country.

The objective of the Trade Marks Act, 1999 is to register trade marks applied for in the
country and to provide for better protection of trade mark for goods and services and
also to prevent fraudulent use of the mark. The main function of the Registry is to
register trade marks which qualifies for registration under the Act and Rules.

Logo of some important Indian companies .

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

Logos of some important foreign Multinational Corporations (MNC’s)

Layout design of integrated circuits refers to a layout of transistors and other

circuitry elements, lead wires connecting such elements, expressed in any manner in
semiconductor integrated circuits. In India, Semiconductor Integrated Circuits
Layout-Design Registry (SICLDR) supervises examination and registration of Layout-
Designs of integrated circuits.
Layout Design of Integrated Circuits: The Semiconductor Integrated Circuit Layout
Design Act 2000.

The Registry functions as per the guidelines laid down in the Semiconductor Integrated
Circuits Layout Design (SICLD) Act 2000 and the Semiconductor Integrated Circuits
Layout-Design (SICLD) Rules 2001.

Design of IC on a Processor.

What are other types of Intellectual Property Rights?

Besides the above major types of Intellectual property rights, Trade secrets and
Protection of Plant Varieties and Farmers‟ Rights (PPVFR) Act are also forms of IP
protection. The details of each of these rights are provided below.
Plant Varieties:---- The Protection of New Plant Variety and Farmers Rights Act
2001.

TRADE SECRET :-
A trade secret refers to confidential information that is protected and utilized by a
company to have competitive advantage. A trade secret broadly comprises of
manufacturing secrets, composition secrets, commercial secrets etc.

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10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

Protection of Undisclosed Information: No exclusive legislation exists but the matter

would be generally covered under the Contract Act, 1872, amended 1996

DIFFERENCE BETWEEN TRADE SECRET AND PATENT

A patent is a techno-legal document, which has a prescribed format and is registered at
the Indian Patent office and similarly in concerned authorities in other countries
whereas a trade secret is not registered.

The patented information is therefore disclosed and recorded in a public domain

source while the trade secret are undisclosed and remains as a secret with its
owners. There is therefore limited or no legal protection in case of leakage of such
confidential information.

The term of a patent of protection is fixed viz., 20 years from the time of filing,
whereas life of a trade secret is indefinite as long as the owner of such information is
able to keep confidential.

LEGISLATIONS COVERING DIFFERENT KINDS OF IPRS IN INDIA

Different types of IPRs are governed by separate legislations as given below:
Patents: The Patents Act, 1970 as amended in 1999, 2002 and 2005.
Design: The Design Act 2000
Trade Mark: The Trade Marks Act, 1999
Copyright: The Copyright Act, 1957 as amended in 1983, 1984 and 1992, 1994, 1999,
2012 and the Copyright Rules, 1958.
Layout Design of Integrated Circuits: The Semiconductor Integrated Circuit Layout
Design Act 2000.
Protection of Undisclosed Information: No exclusive legislation exists but the matter
would be generally covered under the Contract Act, 1872, amended 1996
Geographical Indications: The Geographical Indication of Goods (Registration and
Protection) Act 1999.
Plant Varieties: The Protection of New Plant Variety and Farmers Rights Act 2001.
The intellectual property laws come under Department of Industrial policy &
promotion(DIPP) comes under Ministry of commerce except for plant variety
which is under Ministry of agriculture. The Department of Industrial Policy and
Promotion (DIPP) has been renamed as the Department for Promotion of
Industry and Internal Trade with a mandate to deal with matters related to start-ups,
facilitating ease of doing business .

PATENT
A Patent is a statutory right for an invention granted for a limited period of time
to the patentee by the Government. In exchange , the patentee provides of full
disclosure of his invention . Patent excludes others, from making, using, selling,
importing the patented product or process for producing that product for those
purposes without the consent of patentee.
The term of every patent granted is 20 years from the date of filing of application.
However, for application filed under national phase under Patent Cooperation Treaty
(PCT), the term of patent will be 20 years from the international filing date accorded
under PCT.

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

The patent system in India is governed by the Patents Act, 1970 as amended by the
Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent Rules are
regularly amended in consonance with the changing environment recent being in 2016
and patent (amendment)rule 2024.

Does Indian Patent give protection worldwide

Patent protection is a territorial right and therefore it is effective only within the
territory of India. There is no concept of global patent.
In general, the exclusive rights are only applicable in the country or region in which a
patent has been filed and granted, in accordance with the law of that country or region.
However, filing an application in India enables the applicant to file a corresponding
application for same invention in convention countries or under PCT, within or before
expiry of twelve months from the filing date in India. Patents should be obtained in each
country where the applicant requires protection of his invention.
An invention is patentable subject matter if it meets the following criteria –
i) It should be novel.
ii) It should have inventive step or it must be non-obvious
iii) It should be capable of Industrial application.
iv) It should not attract the provisions of section 3 and 4 of the Patents Act 1970.

What is the Patent Cooperation Treaty (PCT)?

The PCT is an international treaty with more than 150 Contracting States which are
bound with certain formal requirements set out in the Treaty and Regulations. The PCT
makes it possible to seek patent protection for an invention simultaneously in a large
number of countries by filing a single international patent application instead of filing
several separate national or regional patent applications . However, granting of patents
remains under the control of the national or regional patent offices after the
corresponding national phase application has been filed and the national phase
application is assessed as per patent law of that jurisdiction.
As per Indian Patent Act 1970 as amended and the Patents Rules 2003 as amended by
(amendment) rules 2016, any PCT international application may be filed designating
India and it shall deemed to be an application if the corresponding national phase
application has also been filed.

A patent is the granting of property right by sovereign authority to an invertor. Patent

is granted for a period of twenty yaers .
Patent process in India:
Product patent(40’S ) – Process patent (1970) – Product patent (2005)
A Product patent gives the company (Exclusively marketing right) EMR to their
product. They can give license to another company to manufacture and market in a
particular country and in return the company taking royalty.
Process Patent:It means that the company can manufacture the same product by an
alternate process. Therefore, the Indian pharma sector expanded rapidly after this
change. India is also called pharmacy of world .India is the largest producer of generic
drugs in the world . Major supply of HIV and TB medicines from India.
Patent is granted for limited line period of 20 years a patent is territorial right. The
Indian patent act was amended in 2005 and we went for Product patent.
Covidshield – Patent is with Astra Zeneca and Oxford University .It is being
manufactured bry Serum Institute of India under license at Pune
Covaxin – Patent is with Bharat bio tech and ICMR (Indian council of medical)

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

COMPULSARY LICENSING
Compulsory licensing was one of the provisions negotiated under TRIPS. There was
difference of opinion between the developed world and developing world particular is
pharma sector. The developing countries agreed for product patent and the developed
country gave concession to the developing country is the form of compulsory license.
Compulsary license allows the govt to give permission to someone else to produce the
patented product or process without the consent of patent owner. Under compulsory
licensing the generic copy is produced mainly for domestic market not for export.
The patent owners will till have the right over the patent including he right to be paid
for authorised copy of the product. The TRIPS agreement lists a number of condition for
issuing compulsory license .
Normally the person or company applying for a license has to try to negotiate a
voluntary license with the patent holder at a reasonably commercial term. If the
negotiation failed then only the compulsory license can be issued.
Section 84 of Indian patent act 1970 states that compulsory license can be issued to a
person or company 3 years after the grant of the patent.
Section 84 states the conditions under which compulsory license can be issued-
(a)The reasonable requirement of the public with respect to the patented invention has
not been satisfied.
(b) The patented invention is not available to public to a reasonably affordable price.
(c) The patented invention is not worked produced is the tertiary of India.

Department for Promotion of Industry and Internal Trade /Department of

industrial policy and promotion (DIPP) is the agency for issuing compulsory license.
DIPP can seek information from drug controller general of India.
India issued the 1st compulsory license to NATCO pharma for manufacturing the drug
Nexavar. It is used in treatment of liver and kidney cancer. It is patented drug of the
German form (BAYER).
The price of the drug supplied by BAYER is around 3lakh per month. NATCO pharma is
supplying the same drug at the rupees of 9000 per month. BAYER appealed against this
decision at Indian patent appellate board (IPAB) .IPAB rejected the appeal against the
granting of compulsory license it further ordered that royalty should be 6% of the drug
cost .
Compulsory license (CL) and Ever greening of patent is important from socio-economic
condition prevailing in the developing countries and under developed countries. The
purchasing power is very limited is these countries and therefore affordable drug
becomes important.

EVERGREENING OF PATENT/SECONDARY PATENT

The patent period is for 20 years . After this period the drug becomes generic. It can be
manufactured by any pharma company. The Pharma company’s make slight change in
the original drug molecules and apply for secondary patent .
It is a method of indirectly lengthening the patent period . Many countries allow
secondary patent such as USA. Japan, European Union (EU)
Indian patent act 1970 (Amended 2005) does not allow ever greening of patent . Section
3 of Indian patent act defines inventions that are not patentable. The following are not
invention under this act.
a) An invention which is frivolous or which claims anything obviously contrary to well
established natural laws;

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b) an invention the primary or intended use or commercial exploitation of which could

be contrary to public order or morality or which causes serious prejudice to human,
animal or plant life or health or to the environment;
c) the mere discovery of a scientific principle or the formulation of an abstract theory or
discovery of any living thing or non-living substance occurring in nature;
d) the mere discovery of a new form of a known substance which does not result in the
enhancement of the known efficacy of that substance or the mere discovery of any new
property or new use for a known substance or of the mere use of a known process,
machine or apparatus unless such known process results in a new product or employs
at least one new reactant.
Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs,
metabolites, pure form, particle size, isomers, mixtures of isomers, complexes,
combinations and other derivatives of known substance shall be considered to be the
same substance, unless they differ significantly in properties with regard to efficacy;
Mere discovery of a scientific principle or formulation of an abstract theory.

SECTION 3(D)
The mere discovery of a new form of a known substance which does not result in the
enhancement of Known efficacy of that substance will not be considerd invention . The
discovery of a new use of the known substance will not be considered invention. The
use of known process on apparatus until a new product is evolved will not be
considered invention.

EXPLANATION OF3 (D)

For the purpose of clause 3(D) salts esters, ethers, pure form particle size isomers,
mixture of isomers shall be considered the same substance until they vary significantly
is terms of efficiency.
Indian patent office decline the evergreening of drug “ GLIVEC ”. It is a blood cancer
drug manufactured by NOVARITS.
NOVARITS appealed against it at Indian Patent Appelate Board . This case went to
Chennai (madras) high court where it lost the case. Finally the case went to supreme
court which also ruled against NOVARITS .It stated that the B- crystalline form of
Imatinib mesylate can not be considered a new discovery. It does not have improved
efficacy over the previous form.

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

Johnson and Johnson had the patent for the drug “Bedaquiline” which is a life saving
drug for tuberculosis . Johnson and Johnson had patent on the active ingredient of
bedaquiline in India. This expired in 2023, which mean that no generic company can
make the drug in India until then.

The Indian Patent Office has rejected American pharmaceutical corporation Johnson &
Johnson’s (J&J) application for a patent on the paediatric formulation of World Health
Organization (WHO)-recommended TB drug “Bedaquiline “.

This decision from the Indian Patent Office comes on the heels of J&J’s decision last year
to not press for a patent over Bedaquiline salt for adult patients. This decision was
preceded by two major developments.
A pre-grant opposition had been filed by TB survivors, Nandita Venkatesan and
Phumeza Tisile (a South African TB advocate), in the Indian Patent Office.

Many see this as “ever-greening,” a technical term that describes how pharmaceutical
companies add on extensions to their patent 20-year patent terms. It was not allowed in
India .

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

TRADITIONAL KNOWLEDGE DIGITAL LIBRARY ( TKDL)

It is a collaborated project between Council for of scientific and industrial research

(CSIR) Ministry of science & technology and Ministry of Ayush . TKDL data base has
been created to prevent misappropriation of traditional knowledge at the international
patent office.
Example: Controversy on the patent on Turmeric & Neem granted in USA .
It is primarily aim that preventing the case of biodiversity theft and misappropriation of
traditional knowledge at the international patent office .
Traditional knowledge exist is local language such as Hindi, Tamil, Urdu, Oriya , Urdu
,telegu , kannada, marathi , hindi , konkani
These are translated into 5 international language:- English, French, German, Spanish &
Japanese in patent application form .Thus TKDL breaks the language barrier and format
barrier of the local traditional knowledge . It makes the knowledge available to the
patent examiner in their own language and is a format which is easy to understand .
For creation of TKDL data base, a classification took known as ‘Traditional knowledge
resource classification’ has been evolved. It enable proper entry of local medicine and
other information.
Govt. of India has given access to international patent office of TKDL data base. It has
successfully reduced the case bio piracy many other countries are trying to replicate
TKDL model to prevent Biopiracy and safe guard their traditional knowledge.

“The Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001"
It was enacted by govt. of Indian using the sui generis method allowed under WTO for
Agriculture . The Indian legislation is in confirmity with international union for
protection of new varieties of plant (UPOV) . This Legislation recognises the
contribution of plant breeders & farmers.
For its implementation “Protection of plant variety and Farmer right act authority”
was established is 2005 . The authority registers new plant varieties and extended
plant verities etc.
 It has developed DUS (Distinctiveness uniformity & stability) for new plant
varieties.
 It has developed the process of documentation, recognising and rewarding the
rights to farmer community of farmer and plant breeders.
The farmers and the farming community has played a key role in preserving the
plant genetic resource and their relatives.
 This authority also announces two types of awards:-
o Plant genome saviour community award –
o Plant genome saviour farmer reward – variety conservation.
Some other terms related to this act :-
 Farmers variety – a variety that has been traditionally activated and evolved by
the farmers in their filed.
 Essentially drived variety (EDU):---A variety which have been derived form an
existing variety by any of the following means:-a)Genetic engineering
b)Mutation c)Tissue culture derived d)Back Cross

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

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 SR COLLEGE OF COMPETITIONS
10 A/C, Gandhi Nagar, Jammu. Ph.: 2456098, 9419146810

BIODIVERSITY ACT (2002)

It was enacted in the background of CBD (Convention on of Biodiversity) . CBD is
one of the outcome of Earth submit Rio de Janerio.
Purpose:
1. Preservation of biodiversity
2. Mechanism for equitable sharing of benefit arising out of the use of traditional
biological resource and knowledge
Main features:
 It regulated access to biological resource to county
 It has set up national biodiversity authority state biodiversity board and
biodiversity management community.
 All foreign nationals organisation will required prior approval of NBA for
obtaining biological resource/ associated knowledge.
 Indian scientist/ individuals require approval of NBA for transferring the result
of research on Indian bio resource to a foreign industry/ organisation.
 Indian industry need to give prior information to state biodiversity board to
obtain its bio resource.

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