Intellectual Property Rights

 Indian Patent Law

A patent is an exclusive right granted by the Government to the inventor to exclude others to use, make and sell an invention is a specific period of time. A patent is also available for improvement in their previous Invention. The main motto to enact patent law is to encourage inventors to contribute more in their field by awarding them exclusive rights for their inventions. In modern terms, the patent is usually referred to as the right granted to an inventor for his Invention of any new, useful, non-obvious process, machine, article of manufacture, or composition of matter.

Intellectual property (IP) refers to the creations of the human mind like inventions, literary and artistic works, and symbols, names, images and designs used in commerce. Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. Intellectual property rights protect the interests of creators by giving them property rights over their creations.

The history of Patent Law in India starts from 1971 when the Indian Patents and Designs Act, 1911 was enacted. The Patents Act 1970, along with the Patent Rules 1972, came into force on 20 April 1972, replacing the Indian Patent and Design Act 1911. The Patent Act is basically based on the recommendations of the report Justice Ann. The Ayyangar Committee headed by Rajagopala Iyengar. One of the recommendations was the allowance of process patents in relation to inventions related to drugs, drugs, food and chemicals. Again The Patents Act, 1970 was amended by the Patents (Amendment) Act, 2005 regarding extending product patents in all areas of technology including food, medicine, chemicals and microorganisms. Following the amendment, provisions relating to exclusive marketing rights (EMR) have been repealed, and a provision has been introduced to enable the grant of compulsory licenses. Provisions related to pre-grant and anti-post protests have also been introduced.

WTO Patent Rules

The Convention establishing the World Intellectual Property Organization (1967) gives the following list of the subject matter protected by intellectual property rights:

• literary, artistic and scientific works;
• performances of performing artists, phonograms, and broadcasts;
• inventions in all fields of human endeavor;
• 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.”

With the establishment of the world trade Organization (WTO), the importance and role of the intellectual property protection has been crystallized in the Trade-Related Intellectual Property Systems (TRIPS) Agreement. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and

Trade (GATT) treaty in 1994. The TRIPS Agreement encompasses, in principle, all forms of intellectual property and aims at harmonizing and strengthening standards of protection and providing for effective enforcement at both national and international levels. It addresses applicability of general GATT principles as well as the provisions in international agreements on IP. It establishes standards for availability, scope, use, enforcement, acquisition and maintenance of Intellectual Property Rights. Furthermore, it addresses related dispute prevention and settlement mechanisms.

The TRIPS Agreement, which came into effect on 1 January 1995, is to date the most comprehensive multilateral agreement on intellectual property. The areas of intellectual property that it covers are:

• Copyright and related rights (i.e. the rights of performers, producers of sound recordings and broadcasting organisations);
• Trade marks including service marks;
• Geographical indications including appellations of origin;
• Industrial designs;
• Patents including protection of new varieties of plants;
• The lay-out designs (topographies) of integrated circuits;
• The undisclosed information including trade secrets and test data.

Features of the TRIPS Agreement

Standards

The main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.

Enforcement

The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. It contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies.

Dispute Settlement

The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO's dispute settlement procedures.

Meaning of IPR

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. Intellectual property rights are customarily divided into two main areas:

(i) Copyright and rights related to copyright.

The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.

(ii) Industrial property.

Industrial property can usefully be divided into two main areas:

One area can be characterized as the protection of distinctive signs, in particular trademarks and geographical indications. The protection of such distinctive signs aims to stimulate and ensure fair competition and to protect consumers, by enabling them to make informed choices between various goods and services. The protection may last indefinitely, provided the sign in question continues to be distinctive.

Other types of industrial property are protected primarily to stimulate innovation, design and the creation of technology. In this category fall inventions (protected by patents), industrial designs and trade secrets. The social purpose is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities.

proceedure to get the patent

 1. Invention disclosure

The first step is to disclose your invention to the professional. This is done by signing a non-disclosure agreement.

 2. Patentability search

Before you begin the patent registration process, you need to check if your invention is patentable. This means that you need to check if another individual has filed a patent for a similar technology for which you are filing. Performing an in-depth patentability search helps you understand whether you have a chance of getting a patent. While this step is optional, it can save time and help you understand whether you should file for a patent in the first place. At this stage, your professional performs extensive research for prior evidence in all the possible databases. Further, he or she builds a patentability search report based on your invention.

 3. Decision to file an application for patent

This is where the actual process begins. After detailed research about (any) existing history of your invention, you can decide if you want to go ahead with the patent application filing.

 4. Patent drafting

You can now begin the patent application process. Indian applicants need to fill Indian Patent Application Form 1. For every patent you file, you need to mandatorily provide a Form 2 patent specification. You can choose between a provisional and complete patent application, based on the stage of invention. This means that if you are still testing your invention, you need to apply for a provisional patent application. You get a period of 12 months to complete the invention and file for a complete patent.

You need to pay special attention when you are drafting your patent application. Your patent application should include clauses such as usability and outcome of the invention in detail. You should also include the necessary clauses including your intention to license your invention and preventing competition from using and thereby, profiting from your invention. Ensure caution while drafting your patent application, be meticulous and include clauses that prevent the competition from using your technology.

 5. Filing the patent application

After you are done with a review of your patent draft and are satisfied with the scope and details, you are ready to file for a patent.  You can file the patent application in a prescribed manner with appropriate forms with fees. Your patent application needs to be submitted with several application forms. As per the patent filing procedure in India, you need to submit all of the below mentioned forms. Links to all forms and an applicable fee is http://www.ipindia.nic.in/form-and-fees.htm

• Form 1 – Application for patent grant
• Form 2 – Patent specification form (provisional or complete)
• Form 3 – Undertaking and statement with regards to foreign applications under section 8 (mandatory only in case a corresponding application for patent is filed in a foreign country)
• Form 5 – Declaration of invention to be filed with complete application
• Form 26 – Form authorizing patent agent (applicable only if you opt for an agent to help file the patent)
• Form 28 – Mandatory only if applicant is claiming small entity or start-up status
• Priority Documents – You need to provide priority documents only if priority is being claimed from a foreign patent claim or application.

 6. Request for examination

This is the step where the applicant is required to request the Indian patent office to examine your patent application, within 48 hours. After you submit all the documents, the patent application is safely secured by the Indian Patent Office. The patent is then published in an official patent journal after a period of 18 months approximately. However, inventors who wish to have their patent application published before this 18 month period can submit Form 9. This is an automatic process but if an inventor wishes to have his application published earlier, he needs to submit Form 9 (early publication request), in which case, the application will be published in the official patent journal within 1 month of making the request. However, there are certain scenarios in which your patent application may not be published. These include incomplete applications, withdrawal requests made by the individual filing the patent and secrecy direction imposed under Patent Act wherein the invention is against the nation’s interests.

 7. Responding to objections (if any)

The draft and the report submitted to the officers in the patent office are thoroughly examined at this step. At this step, there is a chance for the inventor to communicate his novelty or inventive step over any other piece of art found during the assessment. If all the things are well clarified and solved, the patent application is almost ready to come to action.

 8.  Grant of patent

If the application meets all the prescribed requirements, it is placed in order for the grant. Usually, the final grant of the application is notified through a journal that is published.

 9.  Renewal of your patent

Usually, a patent is in force for 20 years. On completion of 20 years, the owner is required to renew the patent by paying a small fee.

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Redrafted for Educational Purpose.

Deekshith Kumar,
Assistant Professor of Commerce

Book Reference:

1. Elements of Mercantile Law by N. D. Kapoor

2. https://www.wto.org/index.htm

3. https://ipindia.gov.in/