Intellectual Property Rights.

• Human activity should result in desirable things and outputs.

• If the individuals cannot avail the result of their occupations, there would
be no incentive for them to create new things and ideas.

Property:- works on the principle of exclusion.

 It allows the owner, enjoyment without interference. The owner can use it ,
gift it, sell it or even destroy it.
- Movable property.
- Immovable property.
- Intellectual property-not tangible things-

(When applied to the actual world, it can create useful and

valuable things. The use of the ideas is the exclusive prerogative
of the person who thinks of them, and thus, we create a
property in it.)
• 21st century – the century of knowledge,
the century of the intellect.

• A Nation’s activity translate knowledge

into wealth and social good through
innovation will determine its future.

• IPR- protects the rights of individuals

and business who have transformed their
ideas into property by granting rights to
the owners of these properties.
 Protection of IP
• The state sets up a mechanism wherein it asks
inventors to get their inventions registered in
their name, with it. There after, it prevents
others form using the idea and gives an exclusive
opportunity to the inventor, to use the idea.
• State regulate the right of person with respect to
IPR.
• The law dealing with intellectual property, on he
one hand , creates a right in the IP. On the other
hand, the law, in the larger interest of the society,
regulates and curtails the ownership of this
property (monopoly, on public interest)
 Intellectual property
• IP emerges from human creativity , innovation
and engagement.
• IPRs have been classified into
1. Patents.
2. Copy Rights.
3. Trademarks.
4. Designs.
(All these can be owned, controlled, leased and traded)
Patents:
A patent is a legal monopoly granted for a limited time to the
owner of an innovation.
(Monopoly – high prices- many patents were revoked
– eg. The monopoly on the production of playing cards granted to Edwin Darcy was
rescinded)
Copy Rights:
Copy right is the exclusive right granted by statute to the author
of the works to reproduce dramatic, artistic, literary or musical
work or to authorize its reproduction by others.
Trade Mark:
Trademark means any symbol, logo, or name used to enable the
public to identify the supplier of goods. It can be registered.
Trade Secrets:
These are also like patents but they rely on private measures
rather than State action, to maintain exclusivity.
• The copy right persists for a finite period
after the author’s death after which it can be
sold or inherited.
• Copy rights comply with international
norms like
- Berne Convention
- TRIPS Agreement
- WIPO( World Intellectual Property Org.)
- WCT ( World Copyright Treaty)
 IPR …. ?
to think…

 A good deal of great art would not have

been created under a strict copyright
regime. Shakespeare took the works of
others and created greater works. Under
today’s copyright regime his legal bills
would have been staggering!
 Criticism … Patents ..?
• Moral Desert Theory
- Every man has a property in his own person (John Locke).
- If you assert an exclusive right to a particular idea you cannot be sure
the very same idea did not at the same moment enter some other
mind.
- These rights can only be justified if they are implemented in such a
way that rights of an individual are protected without infringing on
another.
• Personality Theory
-If one’s artistic expressions are synonymous with one’s personality,
then they are deserving of protection just as much as the physical
person is deserving of protection since in a sense they are a part of
that physical person.
- If a work of art were part of an individual's personality, then they would
cease to exist after the person died.
• Utilitarian Theory
- The utility gains from increased incentives for innovation must be
weighed against the losses incurred from monopolization and their
diminished diffusion. Thus the problem arises as the benefits gained
cannot be measured against the losses suffered.
• May creates artificial scarcity.

• Once an innovative product ready to be

sold, they should be subject to the
competition of the free market, unhampered
by claims of intellectual property rights; to
allow the inventor of a device to smash
competition, in the market place is to allow
him to fester in mediocrity, while someone
smarter could have improved on the
invention, benefiting everyone.
• IP cannot exist because an idea is not property; it is
not scarce.

• The very institution of property came about for the

purpose of assigning scarce resource to individuals.

• All the world’s products are modeled after something

that came before. From clothing to building to, yes,
writing, there is always a predecessor.

• To deny someone the right to improve upon another’s

creation, manifested in the formers personal
property, is to contradictorily support intellectual
property rights over real and personal property
rights.
 History of Indian Patent System
1856 The Act of 1856 on protection of invention
1911 Indian patents & designs act
1972 Patents act (act 39 of 1970)
– only process patents | 14 year, 7 year
(food/drug)
1975 India joins WIPO
1999 India signs TRIPS (after joining WTO)
– 10 year “ultimatum” starting from 1995
1999, Amendments
2002, -Product patents | 20 years patent period |
2004, 2005 EMR | Burden of Proof
 Chief features of the Indian Patent
Act,1970
• Scope: whole of India.
• Amended in 1999, 2002 – under the
obligation of TRIPs under WTO.
• Amendment in 2005- made more efficient
and user friendly
 Inventions not patentable
• Sec 3
1. An invention which is contrary to the well established natural
laws
2. An invention used for commercial exploitation or causes serious
prejudice to human, animal or plant life or health or to the
environment.
3. The mere discovery of a scientific principle or formulation of an
abstract theory.
4. Mere discovery of any new use of a known substance.
5. A method of agriculture or horticulture
6. Any process of the medicinal, surgical, curative etc. products
7. A mathematical or business method or a computer program per
se algorithms.
8. A presentation of information etc.
 Not Patentable

• Atomic energy
• Traditional knowledge
• Scientific principle
• Abstract theory
• Discovery of natural substances
• New form of a known substance
• Mixture of known compounds
• Methods of agriculture
 Procedure involved

• Examination of application
• Search for Anticipation by previous
publication and by prior claim
• Consideration of Report of examiner by
Controller
• Acceptance of complete specification
• Advertisement of acceptance of complete
specification
• Effect of acceptance of complete
specification
 Patent Grant Procedure
Filing of PATENT APPLICATION

EXAMINATION & NOVELTY SEARCH

ACCEPTANCE OR REFUSAL

NOTIFICATION OF “ACCEPTANCE”
IN THE GAZETTE OF INDIA (part III section 2)

OPPOSITION (if any)

GRANT OF A PATENT
 Right of Patentee p 697 SSG

Sec 48

- Exclusive right to prevent third parties- make/sell

product

- Exclusive right to prevent third parties- to use

process
 Patent of Addition

• Sec 54 to 56
The controller may grant the patent for the improvement
or modification as a patent of addition the term patent
of addition shall run concurrently and terminate with the
main patent. No renewal fee is payable for the patent of
addition so long as the main patent remains in force.
 Patent Office and its Establishment

• By Govt. of India
• HO at Calcutta
• Branch Offices : Mumbai, Delhi & Chennai
• The Controller General of Patents, Design and Trade
Marks is the Controller of Patents
• Central Govt. appoints Examiners and other officials
• Besides TRIPS, India is also a member of
the following international treaties related to
IPR.

1. WIPO (World Intellectual Property Org.)

2. Paris Convention for the protection of Industrial
Property w.e.f Dec7, 1998.
3. Patent Cooperation Treaty (PCT) w.e.f. Dec 7,1998
Intellectual property (TRIPS) agreement:

The WTO Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS) refers explicitly
to the environment in Section 5, which deals with
patents. To protect human, animal or plant life or
health, to avoid serious harm to the environment. A
member can exclude an invention from patentability if
it believes the invention has to be prevented (within
its territory) for these and certain other objectives.

Plants and animals. Micro-organisms have to be eligible

for patenting. So do non-biological and microbiological
processes for the production of plants or animals. And
invented plant varieties have to be eligible for
protection either by patenting,
 Indian Patent Act of 1970 TRIPS
Only process not product patents in food, Process and product patents in almost all
medicines, chemicals fields of technology

Term of patents 14 years; 5-7 in chemicals, Term of patents 20 years

drugs

Compulsory licensing and license of right Limited compulsory licensing, no license

of right
Several areas excluded from patents Almost all fields of technology patentable.
(method of agriculture, any process for Only area conclusively excluded from
medicinal surgical or other treatment of patentability is plant varieties; debate
humans, or similar treatment of animals regarding some areas in agriculture and
and plants to render them free of disease or biotechnology
increase economic value of products)

Government allowed to use patented Very limited scope for governments to use
invention to prevent scarcity patented inventions
The Copy Right Act, 1957 p 711 SSG
• Literary work, Dramatic work, musical work, artistic work,
film, record etc

• Means the exclusive right, by virtue of, and subject to the

provision of the act:
- In the case of literary, dramatic or musical work..
- In the case of computer programme..
- In the case of artistic work..
- In the case of cinematograph…
- In the case of sound recording…
Term of Copy Right:
Literary, dramatic, musical, artistic work: until 60 yrs form the
beginning of calendar year in which author dies.
 Summary
• A patent is monopoly right in the use of an invention.
• An application for patent is submitted to the controller of patents.
The examiners check if the invention has already been claimed by
some other person
• The patentee can sell, assign or license the right in patent.
• For getting patent the invention should be non-obvious and useful
• Invention contrary to public order or morality which causes
serious prejudice to human, animal or plant life or health or to the
environment cannot be patented.
• A method of agriculture or horticulture cannot be patented.
• Surgical process or other process for treating human being cannot
be patented.
• Compulsory licensing is the right of Govt. to put to use a patent in
public interest.