INTELLECTUAL PROPERTY RIGHT

Intellectual Property Rights (IPRs) are legal rights that protect creations and/or
inventions resulting from intellectual activity in the industrial, scientific, literary or artistic
fields. The most common IPRs include patents, copyrights, marks and trade secrets ,
geographical indications and so on .

As per world trade organization , 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.

Different types of IPR :-

1 – PATENT :-
Patent is an intellectual property right, to make, use or sell an invention for a limited
period of 20 years. A Patent is granted to an entity on disclosing a technical invention,
which may be a product (system/apparatus/device) or process (method/
manufacturing) or both, which is novel or new and demonstrate inventive step or
technological advancement over the existing technologies . It is of two types :-

● Product Patents: Right to prevent third parties, from making, using, offering for
sale or selling patented products in India. Also, the Patentee can thwart the third
parties from importing the patented product without permission in India;
● Process Patents: Right to prevent third parties, from using the patented process,
offering for sale or selling the product obtained by the patented process in India.
Also, rights can be enforced against third parties involved in importing the
product in India obtained from the patented process, for using, offering for sale
or selling

2 – COPYRIGHT :-
Copyright (or author’s right) is a legal term used to describe the rights that creators have
over their literary and artistic works. Works covered by copyright range from books,
music, paintings, sculpture, and films, to computer programs, databases,
advertisements, maps, and technical drawings.

The general rule is that copyright lasts for 60 years. In the case of original literary,
dramatic, musical and artistic works the 60-year period is counted from the year
following the death of the author.

3 – INDUSTRIAL DESIGN :-
In a legal sense, an industrial design constitutes the ornamental aspect of an article.An
industrial design may consist of three dimensional features, such as the shape of an
article, or two dimensional features, such as patterns, lines or color.

Some of the most famous examples are Coca Cola’s contour bottle, the contours of the
iPhone/iPad/iPod, and the shape of the Volkswagen Beetle and the Mini Cooper.

4 – TRADE SECRETS :-
Trade secrets are intellectual property (IP) rights on confidential information which may
be sold or licensed.

What kind of information is protected by trade secrets?

In general, any confidential business information which provides an enterprise a
competitive edge and is unknown to others may be protected as a trade secret. Trade
secrets encompass both technical information, such as information concerning
manufacturing processes, pharmaceutical test data, designs and drawings of computer
programs, and commercial information, such as distribution methods, list of suppliers
and clients, and advertising strategies.
A trade secret may be also made up of a combination of elements, each of which by
itself is in the public domain, but where the combination, which is kept secret, provides a
competitive advantage.
Other examples of information that may be protected by trade secrets include financial
information, formulas and recipes and source codes.

5 – TRADE MARK :-
a symbol, word, or words legally registered or established by use as representing a
company or product. Example of trademark can be commercial logo of McDonald’s .

6 – GEOGRAPHICAL INDICATION :-
As per TRIPS agreement of world bank , "geographical indications" as indications that
identify a good as "originating in the territory of a Member, or a region or locality in that
territory, where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographic origin . Few examples of GI in India are as
follow :-
1 – Kolkata rasogolla

2 – kandiwaram sarees – tamilnadu

3 – darjeeling tea .

Importance of IPR :-
1 – Intellectual property rights are declared as human right under united nation
declaration ( 1948 ).
2 – Such rights protect human efforts of their own invention or any other work in their
commercial utilization .
3 – Culture of IPR encourage players of market towards new technological
developments , innovative works and so on .
4 – Indirectly IPR policy helps towards maintaining transparency in market , encourage
foreign investors ultimately promote competitiveness in market .

INITIATIVES UNDERTAKEN TOWARDS IPR PROTECTION :-

International initiatives:-

1 – Establishment of WIPO( World intellectual property right organization ) :-

It is one of the 15 specialized agency of United nation which was established in 1967 to
promote and protect intellectual property .
WIPO publish global innovation index for tracing scenario of innovation in different
countries across the globe .
2 – Trade related aspects of intellectual property rights ( TRIPS) :-
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is
the most comprehensive multilateral agreement on intellectual property (IP). TRIPS was
negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and
[5]
Trade (GATT) between 1989 and 1990 and is administered by the WTO. TRIPS
recognize following type of intellectual properties :- copyright , geographical indication ,
patent , trademark , industrial design . TRIPS also specifies enforcement procedures,
remedies, and dispute resolution procedures.

Few other international efforts towards various IPR protection :-

Berne convention on copyright ( 1887)
Patent co operation treaty in Washington DC ( 1970)
Madrid convention on protection of trademark ( 1989 ) .

National level initiatives : -

India has traditionally been recognized as a country of loose IPR protection . however
government has undertaken different steps time to time towards IPR protection .
Important initiatives are as follows :-
1 – India patent act 1970 :-
This act originally committed for process patent of products but latter on process patent
was replaced by product patent . duration of patent for commercial products is 20
years . Through amendment of thic act in 2005 , drug , chemicals and food products
were covered under patent protection .

What is Compulsory Licensing?

A compulsory license is a license or authorization issued by the government to an
applicant for making, using and selling a patented product or employing a patented
process without the consent of the patentee.
Chapter XVI of the Indian Patents Act 1970 and the Agreement on Trade-Related
Aspects of Intellectual Property Rights discuss compulsory licensing.
● The application for compulsory license can be made any time after 3 years from
date of sealing of a patent. Additionally, according to Section 92 of the
Act, compulsory licenses can also be issued suo motu by the Controller of Patents
pursuant to a notification issued by the Central Government if there is either a
“national emergency” or “extreme urgency” or in cases of “public non-commercial
use”.
Case study :- recently government considered for granting compulsory license for
generic version of remdisivir drug .
2 – Geographical indication of goods act 1999 :-
The Geographical Indications of Goods (Registration and Protection) Act, 1999 (GI Act)
is a sui generis Act of the Parliament of India for protection of geographical
indications in India .
The GI tag ensures that only those registered as authorised users (or at least those
residing inside the geographic territory) are allowed to use the popular product
name. Darjeeling tea became the first GI tagged product in India .
Department for promotion of Industry and internal trade ( earlier known as DIPP) under
ministry of commerce has been assigned as nodal agency for IPR protection in country .

National IPR Policy, 2016

● The Policy aims to push IPRs as a marketable financial asset, promote
innovation & entrepreneurship while protecting public interest.
● The plan will be reviewed every five years in consultation with stakeholders.
● To have strong & effective IPR laws, steps would be taken — including review of
existing IP laws — to update & improve them or to remove anomalies &
inconsistencies.
● The policy is entirely compliant with the WTO’s agreement on TRIPS.
 ● Department of industrial policy & promotion (DIPP) is the nodal agency for all
IPR issues.
● The policy retains the provisions on Compulsory Licensing (CL) as well
as preventing ever-greening of drug patents (Section 3(d) of India’s Patents Act).
● Under Indian Patents Act, a CL can be issued for a drug if the medicine is
deemed unaffordable, among other conditions, & the government grants
permission to qualified generic drug makers to manufacture it.

Issues related to IPR regime in India : -

One of the most important intellectual property rights issues challenges is the
prevention of the evergreening of the patents for multinational companies.
 ● Evergreening is strategy for extending the term of granted patent which is about
to expire without increasing therapeutic efficacy in order to retain royalties.
● As we know, the companies cannot evergreen their patents simply by making
minor changes.
● Weak institutional structure for IPR protection in India . such as judicial
institution and so on .
● Lack of awareness regarding IPR protection among industrial lobby in India .
● Trademark Violations: India has very high level of trademark counterfeiting
against which the authorities in India do not take proper actions.

Way forward :-
IPR is like an asset for an entrepreneur because an intellectual property consume lot of
time , financial resource and human skill that is why it is essential to strengthen IPR
regime in economy which shall have multi dimensional influence over future prospect of
economic development .