Intellectual Property

Rights

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 International Trade
The Doha round
Ministerial conference in Nairobi
What is Intellectual Property
IPRs in India and the National Policy
IPRs and International concerns

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 International concerns on World
Trade
In pursuance of World War II, western countries came out with their version of
development, which is moored in promotion of free trade and homogenization of
world economy on western lines.
This version claimed that development will take place only if there is seamless trade
among all the countries and there are minimal tariff and non tariff barriers.
GATT was signed in 1946 by 23 countries and became de-facto platform for issues
related to international trade
IMF and World Bank, an International Trade Organization (ITO) came around the same
time. ITO did not survive
GATT had some major successes in reduction of tariffs (custom duty) among the
member countries. And measures against dumping of goods like imposition of Anti
Dumping Duty in victim countries, had also been agreed upon.
Discussions started in 1986 (Uruguay round) and concluded in 1995 led to creation of
WTO in Marrakesh, Morocco.
India as a member of GATT since 1948, was a party to Uruguay Round and a founding
member of WTO.
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PrincipleoftheTradingSystemWT
O
Non Discrimination : Treating other nations equally
Most Favoured Nation :
Countries can set up a free trade agreement that applies only to goods traded within
the group, discriminating against goods from outside. Or they can give developing
countries special access to their markets. Or a country can raise barriers against
products that are considered to be traded unfairly from specific countries. And in
services, countries are allowed, in limited circumstances, to discriminate.
National Treatment : Treatingforeignersandlocalsequally
Freer Trade
Predictability - Through binding and Transparency
Promoting fair competition
Encouraging Development and Economic Reforms

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Main Ministerial Meets
Singapore ministerial meet and Singapore issues 1996
Trade and investment trade and competition policy trade facilitation and
transparency in government procurement,
On investment and competition policy, it was felt that having a multilateral
agreement would be a serious impingement on the sovereign rights of countries.
Investment is seen as an area in which ceding sovereign rights would leave
governments, particularly developing country governments, with too little room for
manoeuvre in directing investments into areas of national priority.
Doha Ministerial meet and Doha Development Agenda 2001
Cancun Ministerial Meet Abandonment of Singapore issues 2003
Bali Ministerial Meet and Bali Package Trade Facilitation and Peace
Clause 2013
Nairobi Ministerial Meet 2015

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MajoragreementsofWTO
AgreementonsubsidiesandcountervailingmeasuresSCM
Prohibited subsidies are : Subsidies contingent upon export performance and Subsidies
contingent upon use of domestic content over imported goods
GeneralAgreementonTradeinServicesGATS
The Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS)
An international agreement that sets down minimum standards for many forms of
intellectual property (IP) regulation.
It remains an issue between Developed and developing countries. TRIPS was fine tuned
in favour of developing countries in 2003, as part of Doha development agenda, when
all members agreed to compulsory licensing in certain cases. However, now U.S. and
Europe remain unhappy about current strict terms of patent allowed by TRIPS
The Agreement on TradeRelated Investment Measures (TRIMS) recognizes that
certain investment measures can restrict and distort trade.

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TRIPS
The Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) provides for minimum norms and
standards in respect of the following categories of intellectual
property rights:
Copyrights and related rights
Trademarks
Geographical Indications
Industrial Designs
Patents
Lay out designs of integrated circuits
Protection of undisclosed information (trade secrets)
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WIPO
World Intellectual Property Organisation created in 1967 "to encourage creative
activity, to promote the protection of intellectual property throughout the world
One of the specialized agencies of the United Nations - not an elected body.
Attempts to reach decisions by consensus, but in any vote, each Member State is
entitled to one vote, regardless of population or contribution.
Significant North-South divide in the politics of intellectual property.
Earlier many developing nations were able to block expansions to intellectual property
treaties, such as universal pharmaceutical patents which might have occurred through
WIPO.
Later, in the 1980s, this led to the United States and other developed countries "forum
shifting" intellectual property standard-setting out of WIPO and into the General
Agreement on Tariffs and Trade, which later evolved into the World Trade Organization,
where the North had greater control of the agenda.
This strategy led to enactment of Agreement on Trade-Related Aspects of Intellectual
Property Rights.

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Intellectual Property
The term intellectual property refers broadly to the
creations of the human mind.

Intellectual property rights protect the interests of

creators by giving them property rights over their
creations.

Intellectual property is usually divided into two

branches, namely industrial property and copyright.

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

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 Intellectual property relates to items of information or
knowledge, which can be incorporated in tangible
objects at the same time in an unlimited number of
copies at different locations anywhere in the world.
The property is not in those copies but in the
information or knowledge reflected in them.
Intellectual property rights are also characterized by
certain limitations, such as limited duration in the case
of copyright and patents.

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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.
(WIPO Convention)12
Categories of Intellectual Property
Various forms of IPRs can be classified into two categories:

IPRs that stimulate inventive and creative activities (patents,

industrial designs, copyright, plant breeders rights and layout
designs for integrated circuits) and
IPRs that offer information to consumers (trademarks and
geographical indications).

IPRs in both categories seek to address certain failures of

private markets to provide for an efficient allocation of resources

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Categories of Intellectual Property
It can also be divided into two categories for ease of understanding
Copyright and Related Rights
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

Industrial Property
Which includes inventions (patents), trademarks, industrial designs, and
geographic indications of source

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Rights protected under Intellectual
Property
Different types of Intellectual Property Rights are

Patents
Copyrights
Trademarks
Industrial designs
Protection of Integrated Circuits layout design
Geographical indications of goods
Biological diversity
Plant varieties and farmers rights
Undisclosed information

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IPR Impact on Business
Contract between creator and sovereign state
Protection for revelation
Balance between rights of creator and public interest
Rights and limitations and exceptions
IPR as Instruments of Development
IPR and Monopoly
IPR and Competition Law
IPRs as a restrictive or unfair trade practice

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IPR as Instruments of Development
Key drivers of economic performance in R&D based
growth models

Intellectual property policies do affect the extent and

nature of investments undertaken by multinational
enterprises.
At the same time, relative to other factors determining foreign
investment decisions, IPRs seem to be of relatively minor
importance.

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Intellectual property and monopoly
Intellectual Property Rights provide exclusive rights to the holders to
perform a productive or commercial activity, but this does not automatically
include the right to exert restrictive or monopoly power in a market.
An Intellectual Property Right generates market power. The potential
pejorative character of the power may be unjustifiably great because of
public policies like the encouragement of inventions.
On the other hand, if investment of resources to produce ideas or to convey
information is left unprotected, the competitors may take advantage and
benefit by not being obliged to pay anything for what they take.
This may result in lack of incentives to invest in ideas or information and the
consumer may be correspondingly poorer.
What is called for is a balance between abuse of monopoly and protection of
the property holders' rights.

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IPR and the Competition Law
Intellectual Property Right endangers competition while
competition law encourages competition.

A workable solution can be predicated on the distinction

between the existence of a right and its exercise.

In other words, during the exercise of a right, if a

prohibited trade practice is visible to the detriment of
public interest or consumer interest, it ought to be
assailed under the competition law.
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Competition Act, 2002, section 3(5)
Chapter relating to Prohibition of Agreements (Anti Competitive Agreements)
states that:-
Nothing contained in this section shall restrict - the right of any person to restrain
any infringement of, or to impose reasonable conditions, as may be necessary for
protecting any of his rights which have been or may be conferred upon him under:-

the Copyright Act, 1957 (14 of 1957)

the Patents Act, 1970 (39 of 1970)
the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of
1999)
the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999)
the Designs Act, 2000 (16 of 2000)
the Semi-conductor Integrated Circuits Layout - Design Act, 2000 (37 of 2000).

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Reasonable Conditions
Section 3(5) of the Act declares that reasonable conditions as
may be necessary for protecting any IPR will not attract section 3.
The expression reasonable conditions has not been defined or
explained in the Act.
By implication, unreasonable conditions that attach to an IPR will
attract section 3.
In other words, licensing arrangements likely to affect adversely
the prices, quantities, quality or varieties of goods and services
will fall within the contours of competition law as long as they are
not in reasonable juxtaposition with the bundle of rights that go
with IPRs.

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Few Examples
Patent pooling is a restrictive practice, which will not
constitute being a part of the bundle of rights forming
part of an IPR. This happens when the firms in a
manufacturing industry decide to pool their patents and
agree not to grant licenses to third parties, at the same
time fixing quotas and prices. They may earn supra-
normal profits and keep new entrants out of the market.
In particular, if all the technology is locked in a few
hands by a pooling agreement, it will be difficult for
outsiders to compete.

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Few Examples
Tie-in arrangement is yet another such restrictive
practice. A licensee may be required to acquire
particular goods (unpatented materials e.g. raw
materials) solely from the patentee, thus foreclosing the
opportunities of other producers. There could be an
arrangement forbidding a licensee to compete, or to
handle goods which compete with the patentee's.

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 In Hawkins Cookers Limited v. Murugan Enterprises, The
Delhi High Court held that a well-known mark on the
pretext of being prominent and well-known cannot be
left unchecked to create a monopoly in the market by
indulging in practices of controlling the incidental
market. The same would fall under the category of
abuse of dominant position in the market and is
prohibited.

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Need for IPR
Meet international obligations while
safeguarding national interests

Modernize; and

Move ahead
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Strategy for IPR
Meet international obligations through
legislative changes

Modernize IPR regime

Create awareness
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National IntellectualPropertyRights
Policy
Announced on 13th May 2016 with the slogan Creative India,
Innovative India.
Lays out the future roadmap for IPRs in India.
Envisages to provide a comprehensive framework for IPRs by
reviewing existing laws and updating or improving them
wherever required.
Rationale behind this policy is to provide a conducive
environment for innovation, entrepreneurship, creativity, and
research in India.
It also aims to push IPRs as a marketable financial asset.
(assets which can be easily traded)
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Objectivesofthenewpolicy
Creating awareness: The policy seeks to create public
awareness about the economic, social and cultural benefits of
Intellectual Property Rights (IPR). It has been included in the
school curriculum and a National research institute for
Intellectual Property Rights has been established to promote
Intellectual Property.
Stimulate the Generation of IPRs: More IPRs should be
generated through greater innovation and research.
Strong and effective Legal and administrative framework:
The legal framework for the IPR should be strong. It envisages to
provide a balance between the interests of the Intellectual
Property Rights holder and public interest.
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Objectivesofthenewpolicy
Modernise and strengthen administration and management
of IPR: One of the steps taken to improve the administration of IPR
is the speeding up of Trademark registration to one month from 13
months currently.
Commercialisation of IPR: To get an adequate value of IPR by
increasing commercialisation and pushing IPR as marketable
financial asset
Enforcement and Adjudication: Strengthening enforcement and
adjudication mechanisms to effectively combat IPR infringement.
Human Capital Development: To strengthen and expand human
resources, institutions and capacities for teaching, training,
research and skill building in IPRs

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Intellectual Property Laws in India
Higher Education Department
The Copyright Act, 1957 (1999, 2012)
Department of Industrial Policy & Promotion
The Patents Act, 1970 (1999, 2002, 2005, 2013)
The Trade Marks Act, 1999 (2003, 2010)
The Geographical Indications of Goods (Registration and Protection) Act, 1999 (2003)
The Designs Act, 2000
Department of Information Technology
The Semiconductor Integrated Circuits Layout-Design Act, 2000 (2004)
Department of Agriculture and Cooperation
The Protection of Plant Varieties and Farmers Rights Act, 2001
The Competition (Amendment) Act (2007, 2009)

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Duration of IPRs in a nutshell
Patent: 20 years from the date of filing of patent application, irrespective of
whether it is filed with provisional or complete specification. Date of patent is
the date on which the application for patent is filed.
Trademark registration: 10 years from the date of making of the application
which is deemed to be the date of registration.
Copyright generally lasts for a period of sixty years.
Registration of a geographical indication is valid for a period of 10 years.
Duration of registration of Chip Layout Design is for a period of 10 years counted
from the date of filing an application for registration or from the date of first
commercial exploitation anywhere in India or in any convention country or
country specified by Government of India whichever is earlier.
Duration of protection of registered varieties is different for different crops
namely 18 years for trees and vines, 15 years for other crops and extant
varieties.

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Patent
is a grant for an invention by the Government to the inventor in
exchange for full disclosure of the invention.
A patent is an exclusive right granted by law to applicants / assignees
to make use of and exploit their inventions for a limited period of time.
The patent holder has the legal right to exclude others from
commercially exploiting his invention for the duration of this period.
In return for exclusive rights, the applicant is obliged to disclose the
invention to the public in a manner that enables others, skilled in the
art, to replicate the invention.
The patent system is designed to balance the interests of applicants /
assignees (exclusive rights) and the interests of society (disclosure of
invention

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Patents
Designs that have technical aspects and are innovative enough would
qualify for Patent protection.
Patents give legal protection to inventions, which are new and thus
previously unknown.
An invention is a practical solution to a specific problem or a specific need
Sec.2(1)(J) - Invention means a new product or process involving an inventive step
and capable of industrial application
Frivolous inventions, mere Discovery of a Scientific Principle or formulation of an
Abstract Theory or Discovery of any living thing is not an invention
It must be industrially applicable
A Patentee, upon the grant of a patent, gets rights to retrain others in
relation to the patented article

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Evergreening of Patents
Global pharmaceutical companies have been putting pressure on India
to make amendments in the Act. US Trade representative Special 301
programme also placed India on a priority watch list for inadequate IPR
protection.
India resisted the pressure to amend the Act by reiterating that it is in
compliance with the TRIPS
Section 3 (d) of the Indian Patents Act, 1970 which prevents ever
greening of patents is the issue - if the variations of the original drug
does not lead to increased efficacy, an extension of the patent is not
allowed.
SC rejected an attempt by Novartis AG to patent an improved version of its anti
cancer drug Glivec. It ruled that the improved version cannot cure cancer more
effectively than the original, no increased efficacy, hence patent not allowed

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Compulsory licensing
India has retained the right of compulsory licensing - i.e. when the government
authorises a party other than the patent owner (inventor) to produce the patented
product or process, without the patent owners (inventors) consent.
As it is done before the expiry of the patent, it is one of the flexibilities provided in
TRIPs to address the concerns of the developing countries to provide affordable
healthcare to the people.
Under Section 84 (1) of the Indian Patent Act, any person may request a compulsory
license if after three years from the date of the grant of a patent the needs of the
public to be covered by the invention have not been satisfied (needs of the patients in
case of pharma companies) the invention is not available to the public at an affordable
price or the patented invention is not worked in, or manufactured in the country, to
the fullest extent possible.
Inalandmarkmove,theIndianPatentOfficeannouncedin2012thatithasissuedits
firstcompulsorylicensetoadomesticgenericdrugmaker.Thedecision
effectivelyendsGermanpharmaceuticalcompanyBayerAGsmonopolyoverananticancerdrug
andauthorisestheproductionofalow costversionfortheIndianmarket.

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Copyright
The Copyright Act, 1957, supported by the Copyright
Rules, 1958, is the governing law for copyright protection
in India. Substantial amendments were carried out to the
Copyright Act, in early 2012

Unlike protection of inventions, Copyright law protects

only the form of expression of idea, not the ideas
themselves.
The Creativity protected is in the choice and
arrangement of words, musical nodes, colours, shapes
etc. 36
Copyright
Writings
Paintings
Musical works
Dramatics works
Audio visual works
Sound recordings
Photographic works
Broadcast
Sculpture
Drawings
Architectural works etc.

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Copyright
A set of exclusive rights granted to the author or creator of an original
work, including the right to copy, distribute and adapt the work.
Lasts for a certain time period after which the work is said to enter the
public domain.
Gives protection for the expression of an idea and not for the idea
itself. For example, many authors write textbooks on a subject, each
author will have a copyright on the book written by him / her, provided
the book is not a copy of some other book published earlier.
Ensures certain minimum safeguards of the rights of authors over
their creations, thereby protecting and rewarding creativity.
Creativity being the keystone of progress, no civilized society can
afford to ignore the basic requirement of encouraging the same.

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Copyright
The creator of a work can prohibit or authorize anyone to:

reproduce the work in any form, such as print, sound

,video, etc;
use the work for a public performance, such as a play or a
musical work;
make copies/recordings of the work, such as via compact
discs, cassettes, etc.;
broadcast it in various forms; or
translate the same to other languages
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Trademarks
An average person sees or hears more than 1500 trademarks
each day

A trade mark is a sign that individualises the goods or services of

a given enterprise and distinguishes them from its competitors

The concept of trademark is not a recent phenomenon; they are

of ancient origin. They existed even as long as 3000 years ago
when Indian craftsmen used to engrave their signatures on their
artistic creations before sending them to Iran.

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Essential Features of a Trademark
World over the concept of trade marks is more or less
uniform. It has two basic characteristics that is

1. it must be distinctive; and

2. it must not be deceptive

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Types of Trademark
Trademark,
Servicemark,
Collectivemark,
Certification Mark

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Functions of Trademark
Trademark performs four functions

It identifies the goods / or services and its origin;

It guarantees its unchanged quality;
It advertises the goods/services;
It creates an image for the goods/ services.

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Trade Mark
Any sign, or combination of signs, capable of
distinguishing the goods or services of one undertaking
from those of other undertakings

Enables its owner or enterprise to build up a reputation

for the good or services offered in relation to that trade
mark

Compels the owner to strive to maintain and improve

the quality
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 In legal parlance Brand names are known as Trade
Marks and enterprise names as Trade Names
Trade names identify an enterprise and its activities
without any reference to its goods and services it puts
on the market
Trade name of an enterprise may not be used by any
other enterprise either as a trade name or as a trade
mark
Service Marks are signs used by enterprises to identify
their services Travel agencies, Insurance Companies,
Hotels, Airlines etc. 45
Geographical Indicators
Geographical Indicators have matured into an
independent IPR, combining appellations of origin
(characteristic qualities on account of peculiar
geographical environment) and indication of source
(sign indicating that a product originated in a country or
a region etc.)
Special treatment to wines and spirits
Geographical Indicators identify goods originating in a
particular region where a given quality, reputation or
workmanship or other characteristic of the goods are
essentially attributable to its Geographical origin.
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Over 200 GIs have been approved in India
Design
Is a special conception of an idea

Industrial designs refer to the aesthetic aspects of mass-

produces goods

Such designs apply exclusively to the appearance of a product

(car models); it must be reproducible by industrial means

Industrial design law does not protect the product or the

article itself; it protects the design.
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Layout designs of Integrated Circuits
Layout designs (Topographies) of Integrated Circuits
are a new form of IPRs recognised by the TRIP

ICs (chips) are the creation of Human mind

Used in large number of products and need to be

protected

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Undisclosed Information
To protect against unfair competition, TRIPs lay down
that Member States shall protect Undisclosed
Information and shall provide natural and legal persons
with the possibility of preventing information lawfully
within their control from being disclosed to, acquired by,
or used by others without their consent in a manner
contrary to honest commercial practices.

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More ..
More combinations of various forms of IP are likely to
emerge in view of the phenomenon of internet and e-
commerce
Domain Names have been identified as akin to trade
marks
Law relating to celebrities and character merchandising
is fast developing and may require an international
agreement.
non-conventional trademark or non-traditional
trademarks like sound, shape, colour and smell trade
marks await acceptance 50
International Treaties
Paris Convention for the Protection of Industrial Property
1883
Berne Convention for the Protection of Literary and
Artistic Works 1886
International Union for New Varieties of Plants (UPOV)
1961, 1972, 1978 and 1991
Convention on Biodiversity, 1992
Agreement on Trade Related Aspects of Intellectual
Property Rights 1994
Internet Treaties 1996
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Berne Convention
The Berne Convention for the Protection of Literary and
Artistic Works, usually known as the Berne Convention,
is an international agreement governing copyright,
which was first accepted in Berne, Switzerland in 1886.
The Berne Convention followed in the footsteps of the
Paris Convention for the Protection of Industrial Property
of 1883, which in the same way had created a
framework for international integration of the other
types of intellectual property: patents, trademarks and
industrial designs.

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 The Berne Convention was developed at the instigation of
Victor Hugo of the Association Littraire et Artistique
Internationale.
Influenced by the French "right of the author" (droit d'auteur),
which contrasts with the Anglo-Saxon concept of "copyright"
which only dealt with economic concerns.
Under the Convention, copyrights for creative works are
automatically in force upon their creation without being
asserted or declared.
An author need not "register" or "apply for" a copyright in
countries adhering to the Convention.
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 The Convention Establishing the World Intellectual Property Organization
(1967) does not seek to define intellectual property, but 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 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.

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Thanks
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