Intellectual Property Rights (IPR)

It refer to legal rights granted to individuals or entities for their intellectual creations or
innovations. These rights provide exclusive control and protection over intangible assets,
allowing creators and inventors to benefit from their work and prevent others from
unauthorized use or exploitation.

By granting IPR,
• society aims to encourage innovation, creativity, and the dissemination of
knowledge.
• It provides an incentive for individuals and organizations to invest in research,
development, and the creation of new ideas, products, and services.
• IPR protection helps stimulate economic growth, foster competition, and maintain
a fair and level playing field for innovators and creators.

Intellectual Property Rights (IPR) are granted for a finite duration rather than an
unlimited duration for several reasons:
• Encouraging Innovation and Creativity: to continue developing new ideas
and creations
• Balancing Rights and Public Interests: for example – medicines, vaccines
• Facilitating Competition and Market Dynamics: opportunities for new
entrants, competition, and the introduction of alternative or improved products
and services.

IPRs in India are administered by the Department for Promotion of Industry and
Internal Trade under the Ministry of Commerce & Industry.

Types of IPR:

1. Patent:

A patent is a form of Intellectual Property Right (IPR) that provides exclusive rights to
inventors over their inventions.

If there are any improvements, advancements, or new inventions based on the original
patented invention, those subsequent inventions may be eligible for their own separate
patent protection.

To qualify for a patent, an invention must meet certain criteria, which may vary slightly
depending on the legal framework of each country. The general criteria for obtaining a
patent include:
• Novelty: The invention must be new and not publicly disclosed before the filing
date of the patent application. It should not have been known or used by others
in any form prior to the filing.
• Inventive Step/Non-obviousness: The invention must involve an inventive
step or a significant leap forward that would not be obvious to someone with
ordinary skill in the relevant field. It should not be an obvious modification or
combination of existing knowledge or technologies.
 • Industrial Applicability: The invention must have a practical application and be
capable of being made or used in some kind of industry or field.

It is given for 20 years.

Once a patent expires, once a patent expires, the invention it covers enters the public
domain, allowing others to use, manufacture, or sell it without infringing the patent
rights.
For example – generic medicines.

Patents in India are governed by “The patent Act 1970” which was amended in 2005
to make it compliant with TRIPS.

Regarding the difference between product and process patents:

• Product Patent: A product patent grants exclusive rights to prevent others from
making, using, selling, or importing a specific product or composition. It protects
the end product itself, such as a new chemical compound, a pharmaceutical
formulation, or a technological device.

• Process Patent: A process patent, also known as a method patent, protects a

specific process or method of producing or manufacturing a product. It grants the
patent holder the exclusive rights to prevent others from using the patented
process, even if they produce a similar product by using a different method.

A list of things that generally cannot be patented in India:

• Inventions that are contrary to public order or morality.

• Discoveries, scientific theories, and mathematical methods.
• Computer programs, per se, although they may be patentable if they have a
technical effect or application.
• Methods of medical treatment or diagnosis of humans or animals.
• A substance obtained by mere admixture resulting only in the aggregation of
the properties
• Method of Agriculture or Horticulture
• Plants and animals, other than microorganisms and non-biological and
microbiological processes for their production.
• Traditional knowledge or traditional cultural expressions.
• Atomic energy and inventions related to atomic energy.

2. Copyright:

Copyright provides protection for various forms of creative expression, including literary,
artistic, musical, and dramatic works, as well as software, architectural designs, and
other original intellectual creations.

In case of cinematograph films and sound recordings it is given to producer.

Under copyright law, the owner of a copyrighted work has the exclusive rights to:
• Reproduce the work
• Distribute the work
• Display the work
• Perform the work
• Create derivative works

Copyright protection is granted to

• the creator of the original musical work (the songwriter or composer) and
• to the producer or entity responsible for the sound recording.

Copyrights in India are governed by “The Copyright Act, 1957.

Duration of Copyright:
• Literary, dramatic, Musical and Artistic Works published during life time of author:
Life + 60 years
• All Other Works: 60 years from date of publication
o Posthumous, Anonymous Works
o Works of Government and Organizations
o Cinema and Sound Recording
o Photograph

3. 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 -
o sign , words, letters, numbers,
o drawings, pictures, emblem,
o colours or combination of colours,
o shape of goods,
o graphic representation or packaging or
o any combination of the above

as applied to an article or a product.

The Trademarks Act 1999

• Period of registration is for 10 years but can be renewed indefinitely.

4. Industrial Design:

Industrial design refers to the aesthetic and ornamental aspects of a product that are
created to enhance its visual appearance and appeal.

It involves the creation of unique and innovative designs for various industrial and
consumer products, including furniture, appliances, vehicles, electronics, packaging, and
more.
It involves considerations such as form, color, texture, materials, proportions, usability,
and overall visual aesthetics.

The Designs Act, 2000

Period of protection is ten years extendable by 5 years.

5. Trade Secrets:

Trade secrets refer to confidential and valuable business information that gives a
competitive advantage to a company.

Trade secrets can include various types of proprietary information, such as formulas,
recipes, manufacturing processes, customer lists, marketing strategies, pricing
information, business methods, and technical know-how.

To protect trade secrets, companies typically employ the following measures:

• Confidentiality Policies
• Non-Disclosure Agreements
• Restricted Access
• Physical and Digital Security
• Trade Secret Litigation

There is no dedicated law in India to protect trade secrets. The primary legislation
governing the protection of trade secrets in India is the Indian Contract Act, 1872,
along with the general principles of law relating to breach of confidence.

A company may choose to rely on trade secrets instead of pursuing patent protection for
several reasons:

• Protection Duration: Trade secrets can potentially provide indefinite protection

patents have a limited duration.
• Cost Considerations: Obtaining and maintaining patent protection can be a
costly process.
• Immediate Protection: Trade secrets provide immediate protection without the
need for a lengthy application and examination process.
• Broader Scope of Protection: Trade secrets can potentially protect a wider
range of information than what can be patented.

When a trade secret violation is suspected or identified, the burden of proof lies
with the company claiming the trade secret. The company must demonstrate that
the information qualifies as a trade secret, reasonable efforts were made to maintain its
confidentiality, and the information was unlawfully acquired or disclosed.

6. Geographical Indication:

It is a sign used on agricultural or natural or manufactured goods as originating or

manufactured in a particular region of a country. It denotes its origin where a specific
quality, characteristic or reputation of the product is essentially attributable to that
origin.
 • Geographical Indicators in India are governed by “The Geographical
Indications of Goods (Registration & Protection) Act, 1999”.
• Registration is valid for 10 years but can be renewed indefinitely.

7. Semiconductor integrated circuit layout design:

Original and novel Layout-Designs of semiconductor integrated circuits can get

protection through registration
• Registration is done after examination and publication of the application
• Registration is valid for 10 years

8. Plant Variety Protection:

Plant variety protection (PVP), also known as plant breeders' rights, is a form of
intellectual property protection specifically designed for new plant varieties. It grants
exclusive rights to the breeder or developer of a new plant variety, allowing them to
control the production, sale, and distribution of that variety for a certain period.

In India, plant variety protection is governed by the Protection of Plant Varieties and
Farmers' Rights (PPV&FR) Act, 2001. The PPV&FR Act provides a legal framework for
the registration and protection of plant varieties and also recognizes the rights of
farmers who have developed and conserved traditional varieties.

Under the PPV&FR Act, the following entities are eligible to apply for plant variety
protection in India:

• Breeders: Any person or organization that has bred or developed a new plant
variety can apply for plant variety protection. This includes individuals,
institutions, research organizations, and commercial entities involved in plant
breeding activities.
• Farmers: The PPV&FR Act recognizes the rights of farmers who have developed
and conserved traditional varieties over time. Farmers can apply for registration
of their traditional varieties under the category of "Farmers' Variety" if they meet
certain criteria specified in the Act.
• Period of protection
o 15 years for annual crops
o 18 years for trees and vines

Licensing Agreement:

• Licence is a permission granted by an IP owner to another person to use the IP

on agreed terms and conditions, while he continues to retain ownership of the IP.
• Royalties are the payments made by the licensee to the licensor for the
authorized use or exploitation of the intellectual property.
International Mechanism to Protect IPR

1. Trade-Related Aspects of Intellectual Property Rights (TRIPS):

• TRIPS is a binding agreement under the World Trade Organization (WTO)

that sets minimum standards for intellectual property protection and enforcement
among its member countries.
• TRIPS was negotiated during the Uruguay Round of the General Agreement on
Tariffs and Trade (GATT), which took place from 1986 to 1994.
• TRIPS establishes obligations for member countries to protect various forms of
IPR, including patents, trademarks, copyrights, industrial designs, and trade
secrets.

Significant Features of TRIPS:

• Minimum Standards: TRIPS establishes minimum standards for the protection

and enforcement of various forms of intellectual property.
• Enforcement and Remedies: TRIPS establishes standards for the enforcement
of IPR and provides mechanisms for IPR holders to seek remedies and legal
redress in case of infringement. It includes provisions for civil and administrative
procedures, border measures, criminal enforcement, and the availability of
injunctive relief and damages.

India amended its IPR laws such as the Patent Act of 1970 was amended in
2005 to make it compliant with this agreement.

2. World Intellectual Property Organization (WIPO):

• WIPO is a specialized agency of the United Nations dedicated to promoting the

protection of intellectual property worldwide.
• WIPO administers numerous international treaties and provides services,
assistance, and information on IPR.
o Paris Convention for the Protection of Industrial Property, 1883
o the Berne Convention for the Protection of Literary and Artistic
Works, 1886
o Marrakesh treaty, 2013:
▪ to address the problem of few books are published in formats that
are accessible to those who are blind or visually impaired.
▪ It requires Contracting Parties to introduce a standard set of
limitations and exceptions to copyright rules in order to permit
reproduction, distribution and making available of published works
o Global Innovation Index report:
▪ It reveals the most innovative economies in the world, ranking the
innovation performance.
▪ India retained 40th rank out of 132 economies in the Global
Innovation Index 2023.
Some Outstanding issues between Developed National and India
regarding IPR:

Special 301 Report:

• The Special 301 Report is an annual review conducted by the Office of the
United States Trade Representative (USTR).
• It identifies trade barriers to U.S. companies and products due to the intellectual
property laws of foreign countries.
• Countries identified in this report are categorized into different "watch lists" based
on the level of concern.

India has frequently been listed in the Special 301 Report, reflecting U.S. concerns over
India's intellectual property rights (IPR) regime. For example,
1. Pharmaceutical Patents:
• Evergreening: The U.S. pharmaceutical industry has expressed concerns
about India's patent laws, especially provisions like Section 3(d) of the
Indian Patents Act, which prevents the "evergreening" of patents.
• Compulsory Licensing: India's issuance of compulsory licenses has also
been a point of contention. These licenses allow generic drug
manufacturers to produce patented drugs under certain conditions, like
when the original drug is unaffordable or not available in sufficient
quantity.
2. Enforcement Concerns:
• There are high levels of piracy, counterfeiting, and infringement,
particularly in sectors like software, film, and music.
• IPR disputes and long litigation timelines have been other issues
highlighted.
3. Trade Secrets:
• India lacks a specific law dedicated to protecting trade secrets.
4. Copyright Issues:
• Concerns have been raised about India's copyright regime, especially
concerning the enforcement against online piracy.
5. Innovation Concerns:
• The U.S. believes that strong IPR protection is essential for fostering
innovation. They argue that India's IPR regime might deter research and
development investments.
However, it's important to understand India's perspective on this. India defends its IPR
regime as being TRIPS-compliant (Agreement on Trade-Related Aspects of Intellectual
Property Rights of the WTO). India argues that its laws strike a balance between
innovation (rewarding inventors) and the public interest (ensuring access to essential
medicines).

Some Issues in Detail:

Compulsory Licensing:
• A compulsory license is a license that is granted by a government, allowing
someone else to produce a patented product or process without the consent of
the patent owner.
• This mechanism is usually invoked when it's deemed necessary for the public
interest,
• such as when the patented product is unavailable, unaffordable,
• not accessible in sufficient quantity in a particular market.
• Patent holder is typically compensated, but not at the same level they might
expect from a willingly negotiated license.
 • International Framework: The Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO)
allows member states to grant compulsory licenses under certain conditions.
However, the exact grounds and processes can vary by country.
• Section 84 of the Patent Act which provides for compulsory licensing.
• Example: Indian company Natcopharma in 2012 to manufacture cancer drug
nexavar and sell it at a very low price

Evergreening of Patents:

Evergreening refers to the strategy employed by patent holders (often pharmaceutical

companies) to extend the period of their exclusive rights on a product beyond the typical
20-year patent term.

This is done by obtaining patents on minor changes to an original product, without

significant improvement in its efficacy.
The typical methods for evergreening include:
1. New Formulations: Patenting a slow-release formula or a new combination of
existing drugs.
2. New Use Patents: Discovering and patenting a new use for an existing patented
drug.
3. Minor Molecular Changes: Making small changes in the molecule and patenting
it as a new invention.

The intent behind evergreening is to prolong the monopoly on the product, preventing
generic manufacturers from entering the market and potentially maintaining higher
prices.
India's Stand on Evergreening:
India has been proactive in preventing the evergreening of patents, especially in the
pharmaceutical sector. This approach ensures that affordable generic medicines remain
available to the Indian population. Here's how India addresses the issue:

• Section 3(d) of The Indian Patents Act, 1970: Section 3(d) prevents for
evergreening.
• For example, the Indian Patent Office denied a patent to Novartis for its drug
Glivec.
• Recently, The Indian Patent Office rejected U.S. pharmaceutical giant Johnson &
Johnson's (J&J) attempt to extend its monopoly on the manufacturing of the
anti-tuberculosis drug Bedaquiline in India beyond July 2023.

Patent Waiver

A patent waiver, also known as a patent exemption or suspension, refers to the

temporary or permanent relaxation of intellectual property rights (specifically patents) in
order to allow for the widespread production, distribution, and affordability of certain
products, particularly in times of public health emergencies or crises. It has gained
significant attention in the context of global access to COVID-19 vaccines and
treatments.

Arguments in Favour of Patent Waiver:

• Access to Medicines: increased production and distribution of essential

medicines, vaccines, and treatments, particularly in low- and middle-income
 countries. This could help address global health crises and ensure equitable
access to life-saving technologies.
• Urgent Response to Public Health Emergencies.
• Global Solidarity and Equity: demonstrates global solidarity and a commitment
to addressing health inequalities.
• Encouraging Collaboration and Technology Transfer.

Arguments against Patent Waiver:

• Disincentive for Innovation: discourage future innovation and investment in

research and development.
• Complex Manufacturing Processes: It may not address the underlying
challenges related to complex manufacturing processes, quality control, and
regulatory approvals.
• Loss of Intellectual Property Protections: weakening patent rights may
undermine the ability of companies to recoup their investments and fund future
research.

Reasons for Considering Patent Waiver:

While compulsory licensing is an established mechanism, proponents of patent waivers
argue that they provide a more efficient and immediate solution during public health
emergencies. They believe that a patent waiver can remove potential legal hurdles and
administrative burdens associated with compulsory licensing, allowing for faster and
broader access to essential medicines and technologies.

Traditional Knowledge
• It refers to the knowledge, innovations, and practices of indigenous and local
communities developed over generations.
• This knowledge is often based on experience, often adapted to local culture and
environment, and passed down through generations. It can encompass a range of
topics, including agricultural practices, medicines, biodiversity knowledge, and
cultural expressions.

Traditional Medicine:
• Traditional medicine refers to health practices, approaches, knowledge, and
beliefs incorporating plant, animal, and mineral-based medicines, spiritual
therapies, manual techniques, and exercises, applied singularly or in combination
to maintain well-being, treat, diagnose, or prevent illness.
• Examples from India include Ayurveda, Siddha, Unani, and Sowa-Rigpa.

In past MNCs have tried to appropriate India’s traditional medicine system. For
example:
• In America a patent was given to a pharmaceutical company for wound healing
properties of turmeric.
• Similarly, in Europe a patent was given for anti-fungal properties of Neem.
• In both cases Indian government filed a case and the patents were revoked but a
need was felt to protect India’s traditional knowledge system.
Efforts by the Government of India to Stop Misappropriation:
1. Traditional Knowledge Digital Library (TKDL):
• One of the most significant steps taken by India is the creation of the
TKDL, a collaborative project between the Council of Scientific & Industrial
Research (CSIR) and the Department of AYUSH.
• TKDL provides information on traditional knowledge existing in the
country, mainly about medicinal plants and formulations used in Indian
systems of medicine, in multiple languages, including English, French,
German, Spanish, and Japanese.
• By making this information available, it ensures that patent examiners in
patent offices across the world have access to this data and can reject any
unwarranted patent applications based on India's traditional knowledge.
• As of now more than 0.4 million medicinal formulations are part of TKDL.
2. Bilateral Agreements:
• India has entered into agreements with several countries to prevent
biopiracy and ensure the protection of its traditional knowledge. For
instance, the TKDL has signed agreements with the European Patent
Office, the United States Patent and Trademark Office, and others,
ensuring that these offices can access TKDL data and prevent undeserving
patents.
3. Legal and Policy Framework:
• The Biological Diversity Act, 2002, provides a mechanism to regulate
access to biological resources and related traditional knowledge to ensure
equitable sharing of benefits.
4. International Cooperation:
• India plays an active role in international forums like the World Intellectual
Property Organization (WIPO) and the Convention on Biological Diversity
(CBD) to advocate for the protection of traditional knowledge and prevent
its misappropriation.
5. Awareness and Capacity Building:
• The government conducts awareness programs and training for
stakeholders, including tribals and forest dwellers, on the importance of
traditional knowledge, its protection, and the provisions of the Biological
Diversity Act.
6. Protection of Geographical Indications:
• India has also used Geographical Indications (GIs) to protect products that
have a specific geographical origin and possess qualities, reputation, or
characteristics inherent to that location. This includes products linked to
traditional knowledge, like Basmati rice.

AI and IPR

Generative AI, particularly models capable of creating text, images, music, and other
forms of content, has indeed raised several Intellectual Property Rights (IPR) concerns.
For example:

• Copyright Infringement:
o AI models are trained on vast datasets that may include copyrighted
material.
o There's concern over whether the output generated by such models
infringes on the copyrights of the original creators.
• Authorship and Ownership:
o Determining the authorship of AI-generated content is complex.
o Questions arise about whether the creator of the AI, the user who
prompted the AI, or the AI itself holds the copyright.
 • Fair Use and Derivative Works:
o Generative AI can produce works that resemble existing copyrighted
materials, leading to debates over what constitutes fair use versus the
creation of derivative works.
• Ethical and Misuse Concerns:
o There's the potential for generative AI to create deepfakes, counterfeit
artworks, or misleading information, posing ethical, legal, and security
concerns.
• Compensation and Royalties:
o Artists, writers, and creators whose works contribute to training AI models
might not be compensated. This raises questions about fair compensation
and royalties.

Potential Resolutions:

1. Clear Legal Frameworks:

• Updating copyright laws to address the nuances of AI-generated content is
crucial. This includes defining authorship, ownership, and liability for AI-
generated works.
2. AI Training Transparency:
• Companies developing AI should disclose the sources of their training
data, ensuring it's obtained legally and ethically. This might involve
licensing agreements with copyright holders.
3. Rights and Royalties Management:
• Implementing systems to track the use of copyrighted material in training
AI and ensuring fair compensation to original creators. Blockchain
technology could play a role in transparently managing and automating
royalties.
4. Ethical Guidelines and Standards:
• Developing industry-wide ethical guidelines for the use of generative AI,
including standards for transparency and the prevention of harmful uses.

National IPR Policy 2016

The National IPR Policy is a vision document that encompasses and brings to a single
platform all IPRs. It comes under Department for Promotion of Industry and Internal
trade, Ministry of Commerce and Industry. It has seven objectives:

• IPR Awareness - To create public awareness about the economic, social and
cultural benefits of IPRs among all sections of society.
• Generation of IPRs - To stimulate the generation of IPRs.
• Legal and Legislative Framework - To have strong and effective IPR laws, which
balance the interests of rights owners with larger public interest.
• Administration and Management - To modernize and strengthen service oriented
IPR administration.
• Commercialization of IPR - Get value for IPRs through commercialization.
• Enforcement and Adjudication - To strengthen the enforcement and adjudicatory
mechanisms for combating IPR infringements.
• Human Capital Development - To strengthen and expand human resources,
institutions and capacities for teaching, training, research and skill building in
IPRs.
Key features
• The policy is in compliant with WTO’s TRIPS agreement and flexibilities such as
compulsory licensing and section 3(d) of the Patents Act 1970 have been kept
intact.
• Less empowered groups of IP owners such as artisans, weavers and farmers will
be provided financial support by offering them IP friendly loans.
• Trademark offices to be modernised, and the aim is to reduce the time taken for
examination and registration.
• It proposes to establish IP Promotion and Development Council which will oversee
opening of IP Promotion and Development Units in all states in order to create a
single window system for promotion, awareness and utilization of IP in the
country.
• 1st time patent fee waiver and a support system for MSMEs. This will boost
innovation in the sector. Also an effective loan guarantee scheme to be created to
encourage start-ups.
• The policy to be reviewed every 5 years in consultation with all the stakeholders.