Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP play a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting a new technology in the market place. The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D. IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in this way aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth.
The concept of intellectual property is not new as Renaissance northern Italy is thought to be the cradle of the Intellectual Property system. A Venetian Law of 1474 made the first systematic attempt to protect inventions by a form of patent, which granted an exclusive right to an individual for the first time. In the same century, the invention of movable type and the printing press by Johannes Gutenberg around 1450,contributed to the origin of the first copyright system in the world.
Towards the end of 19th century, new inventive ways of manufacture helped trigger large-scale industrialization accompanied by rapid growth of cities, expansion of railway networks, the investment of capital and a growing transoceanic trade. New ideals of industrialism, the emergence of stronger centralized governments, and nationalism led many countries to establish their modern Intellectual Property laws. At this point of time, the International Intellectual Property system also started to take shape with the setting up of the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886. The premise underlying Intellectual Property throughout its history has been that the recognition and rewards associated with ownership of inventions and creative works stimulate further inventive and creative activity that, in turn, stimulates economic growth.
In India Patent Act was introduced in the year 1856 which remained in force for over 50 years, which was subsequently modified and amended and was called “The Indian Patents and Designs Act, 1911”. After Independence a comprehensive bill on patent rights was enacted in the year 1970 and was called “The Patents Act, 1970”.
Specific statutes protected only certain type of Intellectual output; till recently only four forms were protected. The protection was in the form of grant of copyrights, patents, designs and trademarks. In India, copyrights were regulated under the Copyright Act, 1957; patents under Patents Act, 1970; trademarks under Trade and Merchandise Marks Act 1958; and designs under Designs Act, 1911.
With the establishment of WTO and India being signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), several new legislations were passed for the protection of intellectual property rights to meet the international obligations. These included: Trade Marks, called the Trade Mark Act, 1999; Designs Act, 1911 was replaced by the Designs Act, 2000; the Copyright Act, 1957 amended a number of times, the latest is called Copyright (Amendment) Act, 2012; and the latest amendments made to the Patents Act, 1970 in 2005. Besides, new legislations on geographical indications and plant varieties were also enacted. These are called Geographical Indications of Goods (Registration and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001 respectively.
Originally only patent, trademarks, and industrial designs were protected as ‘Industrial Property’, but now the term ‘Intellectual Property’ has a much wider meaning. IPR enhances technology advancement in the following ways:
(a) it provides a mechanism of handling infringement, piracy, and unauthorized use
(b) It provides a pool of information to the general public since all forms of IP are published except in case of trade secrets.
IP protection can be sought for a variety of intellectual efforts including
(ii) Industrial designs relates to features of any shape, configuration, surface pattern, composition of lines and colors applied to an article whether 2-D, e.g., textile, or 3-D, e.g., toothbrush
(iii) Trademarks relate to any mark, name, or logo under which trade is conducted for any product or service and by which the manufacturer or the service provider is identified. Trademarks can be bought, sold, and licensed. Trademark has no existence apart from the goodwill of the product or service it symbolizes
(iv) Copyright relates to expression of ideas in material form and includes literary, musical, dramatic, artistic, cinematography work, audio tapes, and computer software.
(v) Geographical indications are indications, which identify as good as originating in the territory of a country or a region or locality in that territory where a given quality, reputation, or other characteristic of the goods is essentially attributable to its geographical origin.
A patent is awarded for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial or commercial application. Patents can be granted for products and processes. As per the Indian Patent Act 1970, the term of a patent was 14 years from the date of filing except for processes for preparing drugs and food items for which the term was 7 years from the date of the filing or 5 years from the date of the patent, whichever is earlier. No product patents were granted for drugs and food items. A copyright generated in a member country of the Berne Convention is automatically protected in all the member countries, without any need for registration. India is a signatory to the Berne Convention and has a very good copyright legislation comparable to that of any country. However, the copyright will not be automatically available in countries that are not the members of the Berne Convention. Therefore, copyright may not be considered a territorial right in the strict sense. Like any other property IPR can be transferred, sold, or gifted.
Besides to the most recent developments, in order to bring progressive changes towards a free market society, rapid liberalization of international trade practices and demonstrating its commitments to the WTO under the Trade Related Intellectual Property Rights Agreement (TRIPS), the Government of India undertook a series of steps, to conform India IP legislation to acceptable international standards. The regulations relating to all forms of IP have been amended or reissued in recent years, mainly in response to India’s accession to the WTO. Here are some of these developments in IP legislation in India.
1. Trademark law brought at par with international practices
To bring Indian trademarks law in line with international practices and to ensure implementation of India’s commitments under the TRIPS Agreement, India replaced the Trade and Merchandise Marks Act, 1958, with the Trade Marks Act, 1999. Some changes under the 1999 Act are as follows:
*Service marks, for the first time, made protectable through registration.
* The definition of “trade mark” now includes graphic representations, shapes, Packaging’s and combinations of colors, thereby widening IPR protection.
* The procedure for registration of trademarks expedited by removing the earlier system of Part A and B registration. In addition, only a single application need now be filed for registration of a trademark in different classes. The 1999 Act also provides for the classification in conformity with recognized International Classification of Goods and Services.
* The period of registration and renewal has been increased from seven to ten years.
* The definition of “trademark infringement” has been broadened to give protection beyond the use of identical/deceptively similar marks in relation to goods for which they are registered.
* An action for infringement of trademark/passing-off can be filed in a district court within whose jurisdiction the plaintiff (trademark proprietor) resides or carries on business, as against the earlier law which required the suit to be filed at the defendant’s place.
* Under the new law, both registered and unregistered trademarks can be assigned with or without the goodwill of the business.
Recently, by way of the Trademarks (Amendments) Rules, 2014, the fee with respect to trademark filing has been increased in certain cases. The fee for an expedited examination have also been increased. Further, the Trade Marks Registry recently issued an Office Order little with respect to alterations that may be made to an application for trademark registration. This Order enlists certain ‘substantial alterations’, which would not be allowed; and other alterations, primarily clerical in nature that would continue to be accepted by the Registrar.
The 2012 amendments in copyright law, which were made to make Indian copyright law compliant with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty, introduced technological protection measures, ensured that fair use survives in the digital era by providing special fair use provisions, made many author-friendly amendments, special provisions for disabled, amendments facilitating access to works and other amendments to to streamline copyright administration.
The Government is considering further amendments to the Indian Copyright Act to help deter continuing piracy. Future amendments would provide for greater deterrents against infringement through more effective legislative and administrative frameworks. These amendments would also offer the police wider powers to conduct secret raids, seize and destroy infringing products, provide faster criminal proceedings and increased punishment for piracy.
Modifications in Indian patent laws have been made in accordance with TRIPS by widening the list of inventions not patentable, incorporating greater rights of the patentee, reversing the burden of proof in an infringement suit on process patents and creating a uniform period of patent protection of twenty years for all categories of invention.
During 2014, the Indian Patent Office released guidelines pertaining to issuance of pharmaceutical patents. These guidelines primarily incorporate features of various court decisions so as to assist the Patent Office in establishing uniform standards of patent grant/examination. These guidelines are expected to bring in uniformity with regard to examinations of the patent applications across all Patent Offices in India and by different responsible officers, in addition to giving to the inventors and corporates much desired certainty on how their application will be examined by the Indian Patent Office.
Furthermore, in the recent past, various administrative and procedural mechanisms have been improved in the field of intellectual property law. The infrastructure of the Indian Patent Office has been improved greatly, so as to develop facilities for proper management of International Searching Authority/International Preliminary Examining Authority operation under the Patent Cooperation Treaty.
Indian Patent (Amendment) Rules 2014 recently introduced a third category of applicant being of “small entity”, and provided procedural rules for governing the same. Furthermore, the fee for basic patent filing have been revised due to the introduction of the e-filing system of patents wherein the rates for e-filing are lower than those involved in physical filing.
Protection of intellectual property has become so important that companies today carry out intellectual property audits to identify their intellectual wealth and form special departments to manage them. The legal professional who specializes with matters related to intellectual properties are termed as Intellectual Property Attorneys/Agents. The major job of all Intellectual property (IP) Professionals is to protect the intellectual property rights of their clients.
All the intellectual property rights are protected under various sub-divisions of law such as Patent under patent law; Trademark under trademark law and Copyright under copyright law etc. An intellectual property Professional can specialize in any or all of these fields, and their roles and responsibilities vary according to the fields.
Besides the patent, copyright, trademark areas professionals can also work in the field of industrial design, layout design of integrated circuit, geographical indication, trade secrets and protection of plant varieties, information and communication technology law (cyber laws).
IP Professionals work with numerous clients from small business owners to top management of law corporations, from garage inventors to prize winning scientists, and provide services such as registration, enforcement, drafting, filing, litigation and licensing of intellectual properties like trade marks, designs, patents, copyrights etc.
Our prestigious organization The Institute of Company Secretaries of India has given us all that is enough to make a career in the IPR, yet we shout at creating a career in it. We have so much knowledge of working in this profession that all of us can make a good career on our own hard work. When we look at the syllabus of our CS, we find that we have read all those who want to work in this profession.
Some things that are necessary to make a career in the IPR, we already have it
1. Critical thinking,
2. Analytical reasoning,
4. Research and writing skills,
5. Knowledge of scientific and legal concepts,
6. Mathematical or computer-related skills,
7. excellent communication and competence to manage IPR.
Since IPR law is an innovation-oriented profession, Intellectual Property rights professionals should possess scientific, technical, technological and business skills. They should possess an eye for detail to understand all kinds of information and must have some technical skills in engineering, technology, physics, chemistry or biology.