Saturday, January 19, 2019

Five Types Of Intellectual Property Rights In India




In era of globlisation the intellectual property rights are much talked about as there is fear of encroachment uopn it. The concept of intellectual property is derived from traditional property like movable and immovable. This property is a creation of human wisdom. Thus, it is incorporeal property over which rights are claimed. The expression "intellectual property" is a group of rights e.g., Patents, Registered Designs, Copyright and Trade Marks. In fact, intellectual property rights are negative rights which prevent other persons to exercise or use the same.

There are five kinds of the Intellectual Property Rights; these are as under -

1. Patents Right
2. Registered Designs Right
3. Copyright
4 Trade Marks Right
5. Biological Diversity Rights

 Patents Right 


It is an exclusive right, conferred on one who invents or discovers some process, machine etc., to make, use, sell or assign it for a certain period of time (i.e, a patent last for the period of 20 years) which may
extended. A patent may be granted only for an invention in respect of which the following conditions are satisfied -
(i) it must be new
(ii) it must involve an inventive step;
(iii) it must be capable of industrial application;
(iv) it must not be an invention which will encourage offensive, immoral or anti-social action; and
(v) it must not consist of a scientific theory, computer programme, aesthetic creation etc

The right as to patent may be granted to the inventor, joint inventors, persons, who by virtue of any enactment or treaty or agreement with the inventor, were entitled to the whole of the property in it or successions in title of those persons. The term of a patent is twenty years, beginning with the date of filing of the application.
A patent is infringed where a person commits one of the following acts without the consent of the Patent's proprietor.
Where the invention is a product and he makes, disposes of, offers to dispose of, uses or imports the product or keeps it for disposal or otherwise; where the invention is a process and he uses or offers it for use, when he knows this is an infringement; where the invention is a process and he disposes of, offers to dispose of, uses or imports any product obtained directly by means of the process or keeps it for disposal or otherwise.

The Court may revoke a patent on anyone of the following grounds:
(i) it is not a patentable invention;
(ii) the patent was granted to a person, who was not entitled to the grant;
(ii) the specification does not disclose the invention clearly and competently enough for it to be performed by a person skilled in the art; and
(iv) the matter disclosed in the specification extends beyond that disclosed in the application for the patent.

Thus, the patent right is the right to do, or authorise the doing of any thing which, but for that right would be an infringement of a patent. 

Patent (Amendment) Act, 2005 - The Parliament brought major changes in the principal Patent Act, 1970 with the view to fully comply TRIP's. However, important changes have been incorporated which are as follows - 
1. Product patents to be issued in areas like drugs, food and chemicals etc
2. According to the Doha Declaration on public health, the provision for enabling the grant of compulsory licence for export of
patented medicines to countries which have insufficient or no manufacturing capacity to meet public health emergencies such as HIV/AIDS.
3. Provision for acquisition of patent for public health purposes.
4. Provision for pre-grant and post-grant opposition to the granting of a patent.
5. Provisions relating to opposition procedures modified to streamline the system.
6. Patent right in respect of 12000 applications, a majority of them from multinational pharma companies, already lodged in mail-box will be available only from the date of grant of patents and
not retrospectively from the date of publication.
7. Protection will be valid for 20 years from the date of application.
8. Provision for exclusive marketing rights have been taken away.
9. Government has been given power to revoke a patent, which is found to be mischievous to the State or pro-judicial to the public.
10. Patent protection for software in combination with or embedded in hardware like mobile phonos,   T.Vs. and computers. As of new software applications embodded in hardware were provided
only for copyright protection.


Registered Design Right 


This right is governed and protected by the Designs Act, 1911. The right to register the designs includes apparatus, machine, garments tools instrument etc. It is the right of designer and only designer can take benefit out of it. The rights of designer prevents all others not just imitators. In other words the right of registered designer prevents others from using the
design registered for the duration of the maximum period of twenty years from its date of registration.

Copyright


In India, the copyright is safeguarded by virtue of the Copyright Act, 1957 with relevant Rules of 1958 and also International Copyright Order, 1999. A copyright is a property right which is transmissible by assignment or will as personal property, which sub-lists in original literary, dramatic, musical or artistic works, sound recordings, films, broadcasts or cable programmes and the typographical arrangement of published editions. The term "original" means originating from the author, not copied.

Further, the term "author" means who creates the work, he is the first owner of the copyright. He usually continues the holders for life plus 60 years. Thus, the author has the right to be identified. The remedies for infringement include damages and injunctions before the Copyright Tribunal or Competent Court. The Copyright includes the acts of copying of the work; issuing of copies to the public; performing, showing or playing the work in public; broadcasting the work, if any of the above cited things is done or carried out without prior consent of the copyright holder, it amounts to violation of copyright.

Indian Copyright Act, 1957 - It is to be noted that copyright protection is governed by the Indian Copyright Act, 1957 and has been amended from time to time. It was last amended in 1994. The Act provides for registration of copyright under seven different categories-
(a) literary works other than computer programmes; tables and compilations
(b) including computer-data bases and dramatic works,
(c) musical works;
(d) artistic works
(e) cinematograph films
(f) sound recording;
(g) computer programmes, tables compilations including computer data-bases.

Further, the Act also provides for registering charges for entering particulars in the Register of Copyright, issue of certified copies of extracts from the Register of Copyright as also of the public documents in custody of Register of Copyright besides facilitating inspection of the Register of Copyright/Index by the interested person.

Trademarks Right 


The expression 'Trade' means business activity relating to the exchange of goods and services for money. It includes every trade, manufacture, adventure or coneern in the nature of trade. However, word 'trademarks' means a mark used or propos├ęd to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as propriotor or registered user to use the mark, whether with or without anyi ndication of the identity of that porson. The expression "mark" includes a service, name, signature, word, letter, numeral or any combination thereof.

Trade mark means a mark used in connection with a group or class of goods that the public associates with tho owner of the mark. A dispute relating to such a mark may result in a passing off action.



Biological Diversity Rights


Realizing that India has vast and rich bio-diversity its protection against bio-piracy and ensuring equitable sharing of benefits enshrined in Convention on Biological Diversity (CBD) is a challenging task.
Bio-diversity is a multi-disciplinary subject involving diverse sectorial activities and actions. The stock holders in biological diversity includes the Central and State Government, scientific and technical institutions, local self government, scientific and technical institution experts, non-governmental organisation, industry etc.
CBD affirms the sovereign rights of the States over their biological resources and India being a member of CBD and World Trade Organisation (WTO) decided to bring the Biological Diversity Act, 2002 after making extensive and intensive consultation process involving various stock holders.

The Biological Diversity Act, 2002 primarily addresses the issue concerning access to genetic resources and associated knowledge by foreign individuals, institutions or companies and equitable sharing of benefits arising out of the use of these resources and knowledge to the country and its people. 

In order to safeguard the interests of the local people Vaids and Hakims and to allow research by Indian citizens within the country, the following exceptions are proposed -
(i) free access to biological resources for use within India for any purpose other than commercial use for Indian People;
(ii) use of biological resources by Vaids and Hakims;
(iii) access to the Indian citizens to use biological resources within the country for research purposes;
(iv) collaborative research through government sponsored or government approved institutions subject to overall policy guidelines and approval of the Central Government.

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