INTELLECTUAL PROPERTY RIGHT(IPR): INDIAN CONTEXT

ANIL KUMARPROFESSOR AND HEAD

SCHOOL OF BIOTECHNOLOGYDEVI AHILYA UNIVERSITY

INDORE-452017

BUT……………

What is intellectual property?

#Creations of Human Mind

ORGANISATIONAL CHARTCONTROLLER GENERAL

OF PATENTS,DESIGNS AND TRADE MARKS(MINISTRY OF COMMERCE AND INDUSTRY

DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION)

GRANT OF PATENTS UNDER THE PATENTS

ACT, 1970 ANDREGISTRATION OF

DESIGNS UNDER THEDESIGNS ACT 2000

DOCUMENTATION INCLUDING RETRIEVAL AND

DISSEMINATION OFINFORMATION CONTAINED

IN PATENT DOCUMENTS

REGISTRATION OF TRADE MARKS UNDER

THE TRADE ANDMERCHANDISE MARKS

ACT, 1999

PATENT OFFICEPATENT INFORMATION

SYSTEM & I.P.T.ITRADE MARKS

REGISTRY

CALCUTTA

MUMBAI

CHENNAI

NEW DELHI

NAGPUR

CALCUTTA CHENNAI

AHMEDABAD NEW DELHI

MUMBAI

REGISTRATION OF GEOGRAPHICAL INDICATION OF GOODS (REGISTRATION AND PROTECTION) ACT 1999

GI REGISTRY

CHENNAI

INTELLECTUAL PROPERTY

INDUSTRIAL PROPERTY COPYRIGHT

PATENTS, DESIGNS,TRADE MARKS & GEOGRAPHICAL INDICATIONS

TYPES OF INTELLECTUAL PROPERTY

PATENTS DESIGNS TRADEMARKS GEOGRAPHICAL INDICATIONS

For Inventionse.g. Safety

Valve Mechanism

of a PRESSURE COOKER

And preparation of any medicine

Any modifications inSHAPEPATTERNCONFIGURATIONe.g. Shape of a HANDLE or BODYPORTION of a Pressure Cooker

WORDNAMELOGOIs registrablee.g.“PRESTIGE”“HAWKINS”“MAHARAJA”

An indication of famous geographical area to identify agricultural, natural or manufactured goods originating from definite territory of IndiaDarjeeling Tea,Basmati Rice,Kolhapuri Chappal,Bikaneri Bhujia, Agra Petha,Nagpur Orange

WHAT IS PATENT? EXCLUSIVE PRIVILEGE GRANTED BY GOVERNMENT TO THE PARENTEE FOR A LIMITED PERIOD OF TIME FOR COMMERCIAL GAIN IN CONSIDERATION OF FULL DISCLOSURE OF HIS INVENTION.

A MONOPOLY RIGHT GRANTED$ BY THE GOVERNMENT.$ FOR FULL DISCLOSURE OF INVENTION.$ TO OWNER OR HIS ASSIGNEE.$ FOR LIMITED PERIOD OF TIME i.e. 20 years.

A NEGATIVE RIGHT.

A TERRITORIAL RIGHT.

But not ABSOLUTE RIGHT.

OBJECT OF PATENT SYSTEM

TO ENCOURAGE INVENTIONS.

WORKING OF PATENTED INVENTIONS ON COMMERCIAL SCALE.

( WITHIN REASONABLE & PRACTIBALE TIME ).

PATENTS ARE NOT GRANTED MERELY FOR IMPORTATION OF PATENTED ARTICLES IN INDIA.

ADVANTAGES OF PATENT

AVOIDS DUPLICATION OF RESEARCH.

KEEPS ABREAST WITH LATEST DEVELOPMENT IN DIFFERENT FIELDS OF TECHNOLOGY.

HELPS INDUSTRY TO IMPROVE EXISTING TECHNOLOGY TO PRODUCE CHEAPER AND BETTER PRODUCT.

SERVES AS AN INDICATOR OF ACHIEVEMENTS IN R &D INSTITUTIONS AND ABILITY OF INDIVIDUAL RESEARCHER.

TREND OF TECHNOLOGY: IT HELPS TO FRAME BUSINESS STRATEGY.

PATENT IS GRANTED FOR INVENTION

“ INVENTION means a new product or process involving an inventive step and capable of industrial application;

WHAT IS AN INVENTION?

……………Sec.2(1)(J)

Patent (Amend.) Act,2002

PATENTABLE SUBJECT MATTER NOW

INVENTION MUST RELATE TO A PROCESS OR PRODUCT OR BOTH.

IT MUST BE NEW (NOVEL).

IT MUST INVOLVE INVENTIVE STEP.

IT MUST BE CAPABLE OF INDUSTRIAL APPLICATION.

IT MUST BE FULLY DISCLOSED IN THE PATENT DOCUMENTS.

IT MUST BE NOT BARRED BY SEC 3, 4 & 5 OF THE PATENTS ACT.

“ NEW “MEANS

INVENTION SHOULD NOT BE

I. PUBLISHED IN INDIA OR ELSEWHERE.

I. IN PRIOR PUBLIC KNOWLEDGE OR PRIOR PUBLIC USE WITH IN INDIA.

I. CLAIMED BEFORE IN ANY SPECIFICATION IN INDIA.

NOVELTY CRITERIA

NO PRIOR PUBLICATION IN ANY COUNTRY.

NOT PUBLICLY KNOWN WITHIN THE COUNTRY.

NOT PUBLICLY WORKED WITHIN THE COUNTRY.

PRIOR PUBLICATION- INVENTION WITH SAME FAMILY/ GENUS OR COMMON CHARACTERISTICS AS THE CITATION.

PUBLICLY KNOWN- THROUGH MEDIUM OF PEOPLE, SPEAKERS AT LECTURES,ETC.

PUBLICLY WORKED-THROUGH MEDIUM OF A MACHINE, EQUIPMENT OR OTHER SYSTEMS.

EXAMPLES FOR JUDGEMENT OF NOVELTY

PRESENT APPLICATION CITED DOCUMENT

TITLE- ELECTRIC WIRE TITLE- ELECTRIC WIRE

CLAIMS- AN ELECTRIC WIRE CHARACTERIZED BY BEING COVERED WITH POLYPROPYLENE.

CLAIMS- AN ELECTRIC WIRE CHARACTERIZED BY BEING COVERED WITH POLYPROPYLENE.

DESCRIPTION- WHEN POLYPROPYLENE IS USED AS INSULATOR, ELECTRIC WIRE WITH BETTER HIGH FREQUENCY CHARACTERISTIC IS OBTAINED DUE TO LESS HIGH FREQUENCY LOSS.

DESCRIPTION- EXCELLENT EFFECT IS OBTAINED IN TERMS OF INSULATION BECAUSE THE ELECTRIC WIRE IS COVERED WITH POLYETHYLENE.

EXAMPLES FOR JUDGEMENT OF NOVELTY – (Contd.)

EXPLANATION

THOUGH THE CITED DOCUMENT DOESN’T

DESCRIBE THE PURPOSE AND THE EFFECT OF THE CLAIMED INVENTION. HOWEVER,

THERE IS NO DIFFERENCE BETWEEN THE MATTERS DEFINING THE CLAIMED

INVENTION AND THE MATTERS DEFININGTHE CITED INVENTION. THEREFORE, THE

CLAIMED INVENTIONIS NOT NOVEL.

INVENTIVE STEPMEANS

“A FEATURE THAT MAKES INVENTION

NOT OBVIOUSTO A PERSON

SKILLED IN THE ART”

METHOD OF DETERMINING INVENTIVE STEP

By the reasoning that a person skilled in the art could have easily arrived at a claimed invention based on cited inventions.

Reasoning is made by comparing a claimed invention and a cited invention and clarifying the similarities and the differences in the matters defining the invention, chiefly from the aspect whether a prior cited invention(s) disclose a cause or a motivation for a person skilled in the art to arrive at a claimed invention.

INDUSTRIAL APPLICATIONMEANS

INVENTION IS CAPABLE OF BEING MADE OR CAPABLE OF BEING USED IN AN INDUSTRY

NON PATENTABLE INVENTIONS

Inventions which are Frivolous & contrary to natural law. Commercial exploitation of which could be contrary to public order or morality or cause serious prejudice to Human, Animal or Plant life or Health or to the Environment. Scientific principle/ formulation of abstract theory or discovery of living or non living substances occuring in nature. New property/ mere new use of known substance/ process/ machine/ apparatus. Composition obtained by mere admixture and its preparation process. Mere arrangement or rearrangement or duplication of known devices. Methods of agriculture or horticulture. Process of medicinal, surgical, curative, prophylactic, diagnostic, therapeutic treatment of human being or animal. Plants and animals including seeds, varieties & species and biological process for production or propagation of plants and animals.

A computer programme per se other than its technical application to industry or a combination with hardware. a) A mathematical method or a business method or algorithms. A literary, dramatic, musical or artistic work or any other aesthetic creation. Scheme or rule or method of performing mental act or method of playing game. Presentation of information. Topography of integrated circuit. Traditional knowledge or aggregation or duplication of known properties of traditionally known components.

INVENTIONS RELATING TO ATOMIC ENERGY

INVENTIONS FALLING WITHIN SEC 20(1) OF THE ATOMIC ENERGY ACT, 1962 ARE NOT PATENTABLE

eg. Inventions relating to compounds of Uranium, Beryllium, Thorium, Plutonium, Radium, Graphite,

Lithium, and more as notified by Central Govt.from time to time.

ACKNOWLEDGEMENTS

The material used in this seminar has been taken from a CD provided by the National Law University, Bangalore to the participants of IPR workshop (in March, 2005).

The present material has been mainly taken from the lecture delivered by Dr. kardam, Assistant Controller in the Patent Office, New Delhi.