Intellectual Property Law

What is Intellectual property? Property is ownership of any asset Property can be Moveable Property Immoveable property Intellectual property It is a creation of the mind

Characteristics of Intellectual property Creation of human mind (Intellect) Intangible property Exclusive rights given by statutes Attended with limitations and exceptions Time-bound Territorial

Definition of Intellectual Property “Intellectual Property shall include the rights relating to literary, artistic and scientific works, performances of performing artists, phonograms, and broadcasts, inventions in all fields of human endeavour scientific discoveries Industrial designs trademarks, service marks and commercial names and designations protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

Major Intellectual properties Copyright and Related Rights Industrial Property Patents Industrial Designs Trade Marks Geographical Indications Layout Designs/Topographies Integrated Circuits Trade Secrets Protection of New Plant Varieties

IP Laws of India Act Ministry/Department The Copyright Act, 1957 Higher Education The Patents Act, 1970 Industrial Policy & Promotion The Designs Act, 2000 The Trade Marks Act, 1999 The Geographical Indications of Goods (Registration and Protection) Act, 1999 The Semiconductor Integrated Circuits Layout-Design Act, 2000 Information Technology The Protection of Plant Varieties and Farmers’ Rights Act, 2001 Agriculture and Cooperation

Patents- An overview Inventions are subject matter of patents. The Patents Act, 1970 deals with the patenting of inventions A person claiming to be an inventor, applies to the controller of Patents, for patent rights. If the application is successful, the person gets a patent right for a certain number of years During this period nobody can use the invention without the permission of that person.

A Patent is a monopoly right in the use of the invention. Not all inventions can be patented. The person in whose favour the patent is granted is called the patentee. The patentee will have the exclusive right to make, use, exercise sell or distribute the invention in India. Any use without a license or authorization from the patent holder is an infringement. The patent holder can move the court to restrain the violator and claim damages.

What can be patented? What is an invention and what can be patented? An invention has been defined as “a new product or process involving an inventive step and capable of industrial application. Hence an idea to qualify for an invention, the three requisites are : Novelty Non obviousness Usefulness

WHAT CANNOT BE PATENTED? An invention which is frivolous or which claims anything obviously contrary to well established natural laws Machine giving more than 100% performance Perpetual motion machine Newton’s laws of gravitation The mere discovery of a scientific principle or the formulation of an abstract theory or the discovery of a living thing. The mere discovery of a new property or the new use of a known substance. A substance obtained by a mere mixture resulting in aggregation of properties The mere arrangement / rearrangement or duplication of known device

What cannot be patented A machine whose 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 : Gambling machine device for house-breaking Biological warfare material or device Terminator gene technology embryonic stem cell

What is not patentable ? Mere Discovery of a Scientific Principle or Formulation of an Abstract theory or discovery of any living thing or non–living substance occurring in nature Discovery adds to the human knowledge by disclosing something ,not seen before, whereas, Invention adds to human knowledge by suggesting an action resulting in a new product or new process e.g. Archimedes Principle, Superconducting Phenomenon as such – not patentable , However, An apparatus /method for technological application may be patentable

What is not patentable A substance obtained by mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance, e.g. Paracetamol (Antipyretic) +Brufen (analgesic) = A drug (antipyretic & analgesic) A soft drink that is only a mixture of sugar and some colorants in water But, a mixture resulting in synergistic properties of mixture of ingredients may be patentable e.g Soap, Detergent, lubricant.

Mere arrangement or re-arrangement or duplication of known devices, each functioning independently of one another in a known way for example -. A Bucket fitted with torch, An Umbrella with fan A Clock and radio in a single cabinet A flour-mill provided with sieving

Method of Agriculture or Horticulture e. g. Cultivation of algae , Producing new form of a known plant, preparation of an improved soil However, Agricultural Equipment's are patentable

Non-patentable A literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic work and television productions These subject-matters fall under the copy-right protection A mere scheme or rule or method of performing mental act or method of playing game Examples – Scheme for learning a language , Method for solving a crossword puzzle, Method of learning a language, Method of teaching /learning - Not patentable Novel apparatus for playing game or carrying out a scheme – patentable

Trademark A name of an enterprise or a Mark capable of being represented graphically, distinguishing the goods or services of one person from those of others e. g., LUX, Godrej, TVS ,Telco, 555, APPLE Trade Mark can be - sign , words, letters, numbers, drawings, pictures, emblem, colours or combination of colours, shape of goods, graphic representation or packaging or any combination of the above as applied to an article or a product.

How to register a trade mark? Trademarks are registered with the Controller General of Patents, Designs and Trademarks Registration is made after examination and publication Period of registration is for 10 years but can be renewed indefinitely

CUTS Training Programme 14 Jul 11 WELLKNOWN MARKS Coca Cola for soft drink Toblerone (Triangular- shaped chocolates) Trade Names Godrej- Furniture, Refrigerators, Storewell, Compactor etc GE- Bulbs CUTS Training Programme 14 Jul 11

What is the function of a trademark?  Under modern business condition a trademark performs four functions: Ø      It identifies the goods / or services and its origin. Ø      It guarantees its unchanged quality Ø      It advertises the goods/services Ø      It creates an image for the goods/ services.

Legal requirements with respect to Trade Marks The legal requirements to register a trademark under the Act are:            The selected mark should be capable of being represented graphically (that is in the paper form). It should be capable of distinguishing the goods or services of one undertaking from those of others. It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.

Copyright Copyright is granted in case of literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings. Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.