Intellectual Property

Intellectual property (IP) is a creation of the human mind, an incentive for innovation, and the fruit of creativity. It is a statutory right granted by a government to an innovator or inventor for a limited period. This right serves as an incentive for invention. IP is considered intangible property, meaning it does not exist in a physical form, much like patents or goodwill.

TRIPS Agreement :

The entire modern regime of intellectual property law is framed by the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement, which is part of the World Trade Organization (WTO) agreements. TRIPS provides minimum, though not uniform, standards for IP. All WTO members, currently 164 countries, are required to have domestic IP laws and provide legal protection for innovations and inventions. India has complied with the TRIPS agreement, enacting and amending its laws accordingly.

The logical basis for IP is twofold:

the incentive theory, which fosters creativity, and the monopoly right, which is granted to innovators for a limited time. Once this protection period ends (for example, a patent is typically granted for 20 years), society can use that knowledge for further innovation.

Prolific inventors like Thomas Alva Edison have contributed thousands of patented inventions to our collective knowledge.

Why Should You Protect IP?

Protecting intellectual property is crucial to prevent the theft of knowledge, particularly traditional knowledge. There have been several notable cases:

• Basmati Rice: This rice is traditionally grown in Northern India. In 1997, an American company filed for patents on similar rice varieties, which was seen as an attempt to claim a geographical indication and steal knowledge.

• Turmeric (Haldi): Turmeric has long been known in India for its medicinal and wound-healing properties. In 1995, the US Patent Office granted a patent for "The Use of Turmeric in Wound Healing," an act widely viewed as the theft of Indian traditional knowledge.

• Neem: Used in India for medicinal purposes for time immemorial, a US company patented a pesticide emulsion based on neem products in 1992. The company then began suing Indian firms that were producing similar emulsions, despite this knowledge having existed in India for centuries.

Types of IP

Under the TRIPS agreement, there are seven main categories of intellectual property: Patents, Copyrights, Trademarks, Geographical Indications, Industrial Designs, Integrated Layout Designs, and Trade Secrets.

Here’s a breakdown of what some of these types protect:

Patents

• What's Protected: Inventions.

• What it Means: The owner has the exclusive right to use, sell, or license the invention and can stop others from manufacturing, using, copying, or selling it.

Trademarks

• What's Protected: Letters, numbers, words, colors, phrases, sounds, smells, logos, shapes, pictures, or any combination thereof.

• What it Means: Identifies the particular goods or services of a trader as distinct. The owner has the exclusive right to use, sell, or license the trademark.

Registered Designs

• What's Protected: The visual appearance of a manufactured product, such as a fabric pattern or the shape of a chair.

• What it Means: The owner has the exclusive right to use, sell, or license the registered design.

Plant Breeder's Rights

• What's Protected: New varieties of plants.

• What it Means: Gives exclusive commercial rights to market a new plant variety.

Copyrights

• What's Protected: Art, literature, music, films, broadcasts, and computer programs.

• What it Means: The owner's original expression of ideas is protected. The owner has the exclusive right to use, sell, or license the copyrighted work.

Other Protections

• What's Protected: Trade secrets, confidential information, and circuit layouts.

• What it Means: These types of IP grant specific rights and privileges to the owner, including the right to use, sell, or license them.

Commercialization of IP

Commercialization of intellectual property rights (IPR) refers to the process of making your IPR marketable to earn profits. For example, owning IPR is like owning a piece of land; you can either sell the land as is, or you can build a shop on it and rent it out for income. Similarly, you can transfer your IPR to someone else or develop it into a marketable product through collaborations to earn rewards.

There are three primary ways to achieve IPR commercialization:

1. Directly by the Owner

The owner develops their IPR into a market-ready product. This requires considering the time, funding, and processes needed to reach the market. While the potential returns can be enormous if the product is desired by customers, a major setback is having the necessary financial and technical capabilities to go to market alone.

2. By Assignment

The IPR owner assigns the right to use the IP to an organization that will develop, produce, and market the product. In this model, the owner’s reward is limited to a fixed royalty payment from the organization, and they are not concerned with the organization's profits or losses. The main challenge with this structure is determining a fair royalty amount.

3. By Building Business Partnerships

The IPR owner enters a business agreement with a third party who acts as an investor, helping to convert the IP into a marketable product or service. In India, IP owners generally prefer to either design the product themselves or assign it to others. However, long-term partnerships between IP owners and corporate houses can play a crucial role in ensuring sustainability.

Patent Law in India

Indian Patent Law is defined by the provisions of the Patents Act, 1970. This legislation governs patents in India and first came into force in 1972, building upon the original Indian Patents and Designs Act of 1911. Under the current law, patent rights are granted for inventions that are new, involve an inventive step, and are capable of industrial application. This can cover a process, a product, or an article of manufacture.

The Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM) is the body responsible for administering the Indian Patent Act. The Controller General supervises the Act’s implementation and advises the government on related matters.

The Patents Act has been amended several times, including in 1999, 2002, 2005, and 2006. These amendments were necessary to make the Act compliant with the TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement. A major amendment in 2005 extended product patents to all fields of technology, including food, drugs, chemicals, and microorganisms.

Salient Features of the Law

• Extension of product patent protection to sectors like drugs, foods, and chemicals.

• The term for product patent protection is 20 years.

• Introduction of provisions for granting compulsory licenses for the export of medicines to countries with insufficient or no manufacturing capacity.

Effects of Patent Law

The government has proactively used tools like compulsory licensing to ensure low prices for essential drugs and keep exorbitant prices in check. The amendments aimed to make Indian pharmaceutical industries competitive with multinational companies. As a result, Indian companies manufacturing generic drugs have flourished, and many multinational corporations have opened research and development centers in India.

Copyrights

Copyright has become a particularly important area of intellectual property law in recent times due to digitalization. In the digital era, protecting information and databases is crucial. It is important to understand the differences between the rights of various creators, such as authors, performers, and musicians, as this is where violations most often occur.

Copyright Controversies

Copyright violation is a serious issue with significant consequences. For example, a college lecturer admitted to copying a poet's work, and a Vice-Chancellor of Delhi University was jailed for allegedly copying parts of a student's thesis.

These cases highlight key principles:

• Copyright is not simply the "right to copy."

• It is a complex "bundle of rights."

• Violation can lead to severe penalties, including imprisonment.