PATENTS & TRADE MARKS

SOURCE : FRANCIS CHERUNILAM

IPR may be defined as Information with commercial value.IPR
may be legally protected by patents, geographic indicators
copyrights, industrial designs & trade marks. Controller general
of patents, design and trade marks controls the IPR related
activities of the country and it is Head quartered in Kolkata.

PATENT
A patent is a legal protection granted for an invention that is new &
useful. The patent grants the patent holder the exclusive rights to
make use or sell the patented products or process. .WIPO(World
intellectual property rights office 76 members ) , European patent
office, patent office of the co-operation council of Arab states,
Eurasian patent office
A patent should must satisfy the following three
conditions
It is new
It is useful to the society
It should be non-obvious to a person possessed of
average skill in the art .
Indian patent Act 1971 was amended in 2005 , as
India is a member of WTO it was obliged to align its
patent law with the stipulations of WTO.
Important Features

1) Grant of Patent :According to this act an

invention means a new product or process involving
an inventive step and capable of industrial
application and should be not obvious to a person
skilled in the art.
2) Items not patentable : A list of inventions and
other subject not patentable .For example Inventions
which are against the interest of the society, any
process of treatment of human beings , discovery of
any living and non-living things in nature.
3) Product patent: Previously for food,
pharmaceuticals and chemical products only process
patent was granted .This meant that any body was
free to manufacture the same or similar product by a
different process.
4) Patent period:
Previously the patent period was only 14 yrs but now
it has been extended up to 20yrs.
5) Right and obligation of patentee: The act prevents others from
using , making , selling , or importing without the consent of the
patentee.
6) Compulsory licensing: The act provides for compulsory
licensing of the patent and revocation of the patent if it is not
worked in the country.
7) Working of the patent: As pointed out patent does not mean
the monopoly right to import the patented article in to the
country. It simply encourages research and protects the rights of
the patentee.
8) Exceptions: The central govt. can import and distribute
patented products (especially drugs) if necessary situations arise.
PATENT PROCEDURE IN INDIA

It involves the following steps:

A) Filing of the application:The first inventor or the investor or
his legal representatives can file the application .It can be filed by
any countrys nationals.Application should include
Title , abstract, description etc.If the officials are not satisfied
with the application then a modified version of the patent has to
be submitted by the applicant.
B) PUBLICATION:
Publications is done after 18 months of filing the applications.
C) Pre grant oppositions : Any one who has objection with the
publication can file an opposition against granting the patent .

D) Examination: If pre grant opposition issues are solved , a

request for examination has to be filed within 36 months.
The controller then transfer the files to the examiner who
will examine the content and will file a report within one
month .Examiner has the right to change , modify the
content or he can resend the application to the patent
applicant for necessary modifications.
E)Grant: Patent is granted if every thing is according to the
set standards.
F) Post grant opposition:After granting the patent , if any
one has an objection then post grant opposition can be made
within twelve months .
TRADE MARKS

A trade mark is a brand or a part of a brand that is

given legal protection , a trade mark protects the
sellers exclusive rights to use the brand name or
brand mark.
Trade mark Act 1999
Objectives
1) The registration and better protection of trade
marks for goods and services
2) The prevention of the use of fraudulent marks.
Registration of trade Marks
Any applications regarding the trade marks can be
filed with the registrar of trade marks, registrar may
accept the applications or he may ask for
amendments to be made , or he may refuse the
applications
. An application may be refused , if it hurts the
religious sentiiments , if the mark is obscene , etc. If
a trade mark is registered then the registrar has to
issue a certificate to the concerned party.In case of
opposition , applicants can file counter statements
justifying the trade mark , if counter statements are
not sent then the application can be abandoned. The
validity of the trade mark is for ten yrs and it has to
renewed after that.
Copy rights

Copyright is a right given by the law to creators of

literary, dramatic, musical and artistic works and
producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including,
rights of reproduction, communication to the public,
and translation of the work. The Copyright Act,
1957(Act No. 14 of 1957) governs the laws &
applicable rules related to the subject of copyrights in
India. Copyright Law in the country was governed by
the Copyright Act of 1914, was essentially the
extension of the British Copyright Act, 1911.
Aspects covered under the act

Artistic work - An artistic work means

A painting, a sculpture, a drawing (including a diagram, chart
or plan), an engraving or a photograph, whether or not any
such work possesses artistic quality;
A work of architecture; and
Any other work of artistic craftsmanship.
Musical work
"Musical work" means a work consisting of music and includes
any graphical notation of such work but does not include any
words or any action intended to be sung, spoken or performed
with the music.
Cinematograph film
"Cinematograph film" means any work of visual recording on any

medium produced through a process from which a moving image

may be produced by any means and includes a sound recording
accompanying such visual recording and "cinematograph" shall
be construed as including any work produced by any process
analogous to cinematography including video films.
Sound recording
"Sound recording" means a recording of sounds from where ever
sounds may be produced regardless of the medium on which such
recording is made or the method by which the sounds are
produced.
Copyrights are registered in the copy right office , The author
of a work is the first owner of the copyright( Section
17).However, for works made in the course of an author's
employment under a contract of service, the employer is the
first owner of the copyright. The copyright period in India is
usually for 60yrs.
FAIR DEALING
1) purpose of research or private study,
2)for criticism or review, for reporting current events,
3) in connection with judicial proceeding,
4) performance by an amateur club or society if the
performance is given to a non-paying audience.
Criminal Liability for infringement

shall be punishable with imprisonment for a term

which shall not be less than six months but which
may extend to three years and with fine which shall
not be less than fifty thousand rupees but which may
extend to two lakh rupees.