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Chapter 9 INTELLECTUAL PROPERTY LEGISLATION

One of the important feature of the property is that the owner of the property may use his property as he wishes and that no body else can use his property without his authorisation. Of course that right of the proprietor or owner has been limited by the law. Generally, the property can be divided into) following three categories: (i) Movable property, consisting of movable things; (ii) Immovable property, consisting of immovable things, and (iii) Intellectual property, consisting of creation of human mind and the human intellect. The Concept of Intellectual Property As the term intellectual property relates to the creations of human mind and human intellect, this property is called Intellectual property. In other words, intellectual property relates to pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property right does not vest in those copies but in the information reflected in those copies. Similar to property rights in movable and immovable property, intellectual property is also characterised by certain rights as well as limitations such as right to use and licence and also limited duration in the case of copy right and patents. International Convention: Paris Convention There is an international convention to protect the intellectual properties. This convention was concluded originally at Paris in 1883 and thus is popularly known as 'Paris Convention.' The convention has since then been revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, London in 1934, at Lisbon in 1958 and Stockholm in 1967. The provisions of the Convention provide, among other things that each contracting state must grant the same protection to nationals of other contracting countries as it grants to its own citizens. Nationals of non-contracting states are also protected by the convention if they are domiciled or have real and effective industrial or commercial establishment in a

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contracting state. The provisions of the convention also provide that the foreigner must not only be protected but they will not be discriminated against, in any manner. India has not signed the convention. But both the trade marks and patents Acts Provide for international arrangements. Inspite of this recently United States of America has sought to invoke Special 301 against India, China and Thailand, Special 301, in effect, means that annually, 30 days after the publication of the national trade estimates report, the US trade representative must identity countries that deny fair and effective protection to intellectual properties. Then investigations against them begin after 30 days. Unfairness and retaliation determinations must be made with in six months after investigations commence. Kinds of Intellectual Property Usually intellectual property is divided into two branches, namely, industrial property and copyright.The Convention establishing World Intellectual Property Organisation, 1967 provides that the intellectual property shall include rights relating to: (i) literary, artistic and scientific works; (ii) performances of performing artists, phonograms and broadcasts; (iii) Inventions in the field of human endeavour; (iv) scientific discoveries; (v) industrial designs; (vi) trademarks, service marks, commercial names and designations; (vii) protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Here, it may be clarified that rights relating to (i) and (ii) above constitute copyright, while (iii), (v) and (vi) constitute industrial property. However, scientific discoveries, as mentioned under (iv) above, belongs to neither of two branches of intellectual property, as scientific discoveries and inventions are not the same. Meaning of Industrial Property The expression 'Industrial Property' is sometimes misunderstood as relating to movable or immovable property used for industrial production. However, industrial property is a kind of intellectual property and relates to creation of human mind, e.g., inventions and industrial designs. Simply stated, inventions are new solutions to technological problems, and industrial designs are aesthetic creations determining the appearance of industrial products. In addition, industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition. The term 'Industrial Property* may not appear entirely logical in the sense that the inventions are only concerned with the industry. In other words, the inventions are exploited in industrial plants while the trademarks, service marks, trade names and service names are concerned with both the commerce as well as industry. Notwithstanding the lack of logic, this term has acquired a meaning which clearly covers inventions as well as other marks. The Paris Convention also recognised industrial property to cover patent, trademark, service mark, trade names, utility models, industrial designs, indication of source and appellations of origin and the repression of unfair competition.

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B.Com Business Lai Hence, industrial property right is a collective name for rights referring to the commercial on industrial activities of a person. These activities may include the activities of industrial or commercial interests. They may be called inventions, creations, new products, processes of manufacture, nevfl designs or model and a distinctive mark for goods etc. Tjlf. Concept of Patent Generally speaking. Patent is a monopoly grant and it enables the i n v e n t o r to control the outpufl and within the limits set by demand, the price of the patented products. Underlying economic ancH commercial justification for the patent system is that

it acts as a s ti mul us to inve stme nt in the Indu strial inno vatio n. Inno vativ e tech nolo gy lead s to the main tena nce of and incre ase in natio n's stoc k of valu able H trada ble and indu strial asset s. T he gran t of first pate nt can be trace

d as far back as 500 B.C. It was the city dominated by I gaurmands, it was perhaps the first to grant what we now-a-days call "patent" right to promote eulinarjH art. For it conferred exclusive rights of sale to any confectioner who first invented a delicious dish. Asl the practice was extended to other Greek cities and to other crafts and commodities, it acquired a nam&B 'monopoly', a Greek Portmanteau word from mono (alone) and polein (sale). Evidence s of grant to private individuals by kings and rulers of exclusive property rights to] inventors dates back to the 14th Century, but their purpose had varied throughout the history.

Hist ory sho ws that in 15t h Cen tury Ven ice ther e had bee n syst ema tic use of mo nop oly priv ileg es for inv ent ors for the enc our age me nt of inv enti on. Util ity and nov elty of the inv enti on wer e the imp

ortant) considerations for granting a patent privilege. The inventors were also required to put his invention in commercial use within a specified period. In 16th Century the German princes awarded inventors of nefr' arts and machines and also took into consideration the utility and novelty of inventions. Early laws in American colonies served primarily to encourage foreign manufacturers to establish new industries in the colonies by providing them protected domestic markets. By the late 15th Century, the English monarchy increasingly started using monopoly privilege to reward court favourites, to secure loyalty and to secure control over the industry

but thes e priv ileg es wer e not use d to enc our age inv enti ons. In 162 3, the Eng lish Parl iam ent ado pte d a Stat ute of mo nop olie s whi ch rec ogn ised the inv ent or's pat ent as a just ifia ble mo nop oly to be dist

inguished from other monopoly privileges. The Statute outlawed the awarding of monopoly privileges except for first and true inventor of a new manufacture. In England, during the 16th and 17th Century the inventors' patent of monopoly had become of great national importance. From the midseventeenth Century through the midnineteenth Century, the laws recognising the patent monopoly spread throughout Europe and North America, but these privileges were not granted without the opposition. In India, the law relating to Patents is contained in the Patents Act, 1970, which has been recently amended by the Patents

(A me nd me nt) Act , 200 2. sfe. Conce pt of Trade Mark A Tra de Mar k dist ing uish es the goo ds of one ma nuf actu rer or trad er fro m sim ilar goo ds of oth ers and ther efor e, it see ks to prot ect the inte

rest of the consumer as well as the trader. A trade mark may consist of a device depicting the picture of animals, human beings etc., words, letters, numerals, signatures or any combination thereof. Since a trade mark indicates relationship in the course of trade, between trader and goods, it serves as a useful medium of advertisement for the goods and their quality. The object of trademark law is to permit an enterprise by registering its trademark to obtain an exclusive right to use, share, or assign a mark. Closely related to trademarks are service marks which distinguish the services of an enterprise from the services of other enterprise.

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73 Tr ad e m ar ks ar e no ta cr ea ti on of ou r ti m es , ev en th ou gh th ei r cu rr en t na tu re an d o m ni pr es en ce is of rat he r re ce nt or igi

n. Trademark, a word created only in the 19th century continued to play a significant role in the trade and commerce throughout the major part of history, including medieval times and the [ centuries beyond. The guilds, one of the mainstays of economies in earlier times, often even required their members, the masters of the various crafts, to affix marks on their products in order to exercise control over their production. The trademarks began to assume their present day role inn the course of I the eighteenth century with the advent of mass production and growing trade in goods with the establishment of more complicated system of distribution of goods from the producer to the buyer. In the course of time, remedies were developed by the Courts, or the legislations to stop the infringement of trademark rights. One of the first countries to enact a comprehensive law on trademarks, was France in 1857, a

l a w w h i c h r e m a i n e d i n f o r c e f o r m o r e t h a n 1 0 0 y e a r s . U n i t

ed Kingdom enacted its Trademarks Registration Act, 1875 providing for the registration of trademakrs. Subsequently, various amendments I were introduced in the Act of 1857 and finally the Trade Marks Act, 1938 was enacted. As far as the recognition of modern ways of exploiting trademark is concerned, the Trade Marks Act, 1938, since its inception, recognised the assignment of trademarks without the simultaneous transfer of the respective business. The national developments were influenced to a substantial degree by developments in international field, particularly Paris Convention for the Protection of Industrial Property, 1883, including trademarks which is supplement by the Madrid Agreement on Registration of trademarks; signed in 1891. In India, the law relating to Trademarks is contained in the Trade and

M e r c h a n d i s e M a r k s A c t , 1 9 5 8 , w h i c h h a s n o w b e e n r e p l a c e d

by the Trade Mark Act, 1999. ^Concept of Copy Right The idea of Copyright protection only began to emerge with the invention of printing, which made it for literary works to be duplicated by mechanical processes instead of being copied by hand. This led to the grant of privileges, by authorities and kings, entitling beneficiaries exclusive rights of reproduction and distribution, for limited period, with remedies in the form of fines, seizure, confiscation of infringing copies and possibly damages. However, the criticism of the system of privileges led to the adoption of the Statute of Anne in 1709, the first copyright Statute. In the 18th century there was dispute over the relationship between copyright subsisting in common law and copyright under the Statute of Anne. This was finally settled by House of Lords in 1774 which ruled that at common

l a w t h e a u t h o r h a d t h e s o l e r i g h t o f p r i n t i n g a n d p u b l i s h

ing his book, but that once a book was published the rights in it were exclusively regulated by the Statute. This common law right in unpublished works lasted until the Copyright Act, 1911, which abolished the Statute of Anne. Thus, the copyright deals with the rights of intellectual creators in their creation. The copyright law deals with the particular forms of creativity, concerned primarily with mass communication. It is also concerned with virtually all forms and methods of public communication, not only printed publications but also with such matters as sound, and television broadcasting, films for public exhibition etc. and even computerised systems for the storage and retrieval of information. The copyright law, however, protects only the form of expression of ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colours,

s h a p e s a n d s o o n . I n I n d i a , t h e l a w r e l a t i n g t o c o p y r i g h t

is contained in Copyright Act 1957, which was last amended in the year 1999. & Concept of Design Industrial designs belong to the aesthetic field, but are at the same time intended to serve as pattern for the manufacture of products of industry or handicraft. An industrial design is the ornamental

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or aesthetic aspect of a useful article, which must appeal to the sense of sight and may consist offl shape and/or pattern and/or colour of article. An industrial design to be protectable, must be news origin. Industrial designs are protected against unauthorised copying or limitation, for a period wM usually lasts for five, ten or 15 years. Textile designs were the first to receive legal protection. As early as 1787 the first Act fordesH protection was enacted in Great Britain "for t h e Encouragement of the Arts of design and printH Linens, cotton, calicoes and Muslins, by vesting properties thereof in the Designers, Printersfl Proprietors for a limited time". This was an experimental measure extending protection for a limiH duration. Shortly thereafter its life was extended and soon afterwards it was made perpetual. In 1839H protection under the Act was enlarged to cover 'Designs for Printing other woven Fabrics'. The first designs legislation enacted in India was the Patterns and Designs Protection Act, 18lB It was enacted as a supplement to the Statute-Act 15 of 1859passed by the Governor-General of hm in Council which for the first time made provision for granting to inventors of 'new manufacture' fl exclusive privilege of making, selling and using the invention in India or authorising others todosoB a specified term. The Act of 1872 was passed to extent "similar privileges to the inventors of nfl patterns and designs in British India", though for a very shorter duration of years. It included in tig term "new manufacture" any new and original pattern or design, or the application of such patternH design to any substance or article of manufacture". The Act, however, left undefined the expressiB new pattern or design. The Inventions and Designs Act, 1898, which consolidated and amended the law relating to til protection of inventions and designs contained provisions relating to designs in a separate part, Till (British) Patents and Designs Act, 1907, became the basis of the Indian Patents and Designs Act, 191IB The patents provisions of the Indian Patents and Designs Act, 1911, were repealed by the Patents AcH 1970, a postIndependence updating and consolidation of the patents law. The design provisions of thl Indian Patents and Designs Act, 1911, continue, with some consequential amendments, with the title! the Designs Act, 1911. The new Designs Act, 2000 has been passed by the Parliament. Trade Related aspects of Intellectual Property (TRIPS) The Trade Related aspects of intellectual property (TRIPS) in the GATT agreement covers seveiB categories. These are trademarks, copyrights, geographical indications, industrial designs, and patents! integrated circuits and trade secrets. The principal objectives of the TRIPS are to establish certain! norms and standards to be followed by the member countries in respect of IPR, especially in the area of patents. The main provisions of the TRIPS in the Agreement relating to patents are: (i) the member countries to provide product production in all the fields of Science & Technology) without any exception, (ii) the duration of the patent to be uniformly at least 20 years from the date of filing. (iii) The grant of compulsory license to be given on the individual merits of the case and after approaching the owner of the patent for obtaining license od reasonable terms and conditions, (iv) the burden of proof in the cases of process patents leading to the production new products to be placed on the defendant in the circumstances enumerated in the agreement,

(v) availability of patent rights regardless of whether the products are locally produced or imported,

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(vi) providing protection for the microorgainsms and microbiological processses, and (vii) enactment of an effective systems for the production of new plant varieties. Out of the seven categories it is mainly in the area of patents that the norms and standards tnvisaged in the TRIPS, there are some difficulties in complying with the requirements particularly by tie developing countries. The difficulties are due to the differences in their own policies and regulations. For example, in India the patents law permits only "process" protection in food, pharmaceutical and Bhemical sectors. In other words product production in these areas are not possible. The term of patents is only seven years from the date of filing or five years from the date of grant whichever period lorter. Every patent granted in the above said three areas will be deemed to be endorsed with the words "licenses of right" after the expiry of three years from date of grant. Obligations of the Member Countries Accordingly the countries, where their patent laws are not consistent with the TRIPS provisions of the agreement, have to take steps to modify their legislation to make them consistent. The TRIPS provisions of the agreement provides for a general transition period of 5 years with effect from 1.1.95 for the developing countries for implementation of all the provisions of TRIPS. It also provides for an additional period of 5 years to those developing countries like India, which do not presently provide product production in all the fields of Science & technology. However the TRIPS provisions make it mandatory that the member countries should provide specialities to file applications for patents in respect of pharmaceutical and agricultural chemical products alone containing claims for products, from the date of enforcement of the agreement, namely the 1 st January 1995. The agreement also stipulates that if patents are granted for such products and marketing approval is also granted for said products in the market of the country, and if the patent owner desires to introduce the said products in the market of the country where the person has filed the above said application, the person should be given exclusive marketing rights (EMR) for 5 years or till his patent application is approved or rejected in the said country, whichever is earlier. The dawn of 21st century will usher in anew IPR regime under WTO. A member country of any International Agreement will have both opportunities and challenges under the Agreement. It is for the country concerned to evaluate its strength and weaknesses and take measures to maximise the opportunities and minimise the disadvantages. After such an evaluation, necessary and appropriate measures have to be taken by the country balancing safeguarding its own national interests as well as the commitment made of the agreement. In the international scene India is lagging behind in patents both quantitatively and qualitatively. The rate of filing applications for patents and the skills of drafting, interpreting patent documents and exploiting patents to her advantage are verypoqr in the country. Accordingly India has to initiate some urgent measures to substantially improve the above situation. A system for the efficient management of the portfolio of IP has to be established on a war footing a national initiative by a time targeted mission has to be launched to get ourselves geared up for the efficient management of the portfolio of IP, especially patents. The responsibilities for the success of the mission will have to be shared by many agencies such as government departments, autonomous bodies, industry and academic and R & D institutions. The various measures to be taken by the players of the missior can also be classified into urgent measures, short-term measures (by 2000) and long term measures (beyond 2000). These are briefly

explained below.

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The urgent measures required are : 1.Providing provisions in the Patents Act, 1970 to receive applications for patents contaiiB product claims in the fields of pharmaceutical and agricultural chemical products and for the grant! EMR in the above categories whereever appropriate these provisions has to be made with retrospect! effect from 1.1.95. 2.Forming a group of like mined countries to identify & prepare a paper incorporating revisicJ required in the TRIPS provisions of GATT agreement which is to be taken up in the review meeting 3. 4. 5. REVIEW QUESTIONS What do you understand by Intellectual Property Rights? State the distinction between Industrial Property and Intellectual Property? Write short notes on (a) Patents_(b-^. Copy Rights (c) Industrial Designs (d)JTrade Markj (e) TRIPs ^-u"~" 4-4.4.