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Introductory Aspect of Intellectual Property
Property can be classified in two categories: tangible and intangible which means that can be touched and the other is that cannot be touched. Intellectual property is a kind of property that cannot be touched and is more precious than the tangible ones. In R.C. Cooper v. Union of India, the Supreme Court has very rightly described the definition of property in a very precise manner. It said, “Property means the highest right, a man can have to anything, being that right which one has to land or tenements, goods or chattels which does not depend on another’s courtesy; it includes ownership, estates and interests in corporeal things, and also rights in personam capable of trademarks, copyrights, patents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to transfer of succession, and to their capacity of being injured. ”
Intellectual property is the creation of human mind. Although it is a hidden property it is an important means of accumulating tangible wealth. It is the creation of human intellect that is why it is known as “intellectual property”. In Gramophone Company of India Ltd v. Birendra Bahadur Pandey, the SC has observed that intellectual properties are the brainchild of the authors, the fruits of labors and therefore considered to be their property.
Intellectual Property is usually divided into two categories:
- Industrial property
- Copyrights and neighboring rights
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something. It is the granting of a property right by a sovereign authority to an inventor. The term ‘patent’ acquired statutory meaning in India when the Patents Act,1970 was enacted. Patent under this act is granted by the controller to the inventor for a period of 20 years. The act conveys to the inventor substantive rights and secures to him the valuable monetary right by which he can enforce his own advantage either by using it himself or by conveying the privileges to the others.
The person to whom the patent is granted is known as patentee.
The objective behind the patent law is to make sure that the patentee can gain commercial advantage out of his own invention. In the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, it has been held by the SC that the object of patent law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new inventions of commercial utility. The SC further said that the fundamental principle of patent law is to grant a patent only for an invention which must be new and useful.
- Be related to process or product or both.
- Be new.
- Involve an inventive step.
- Be capable of industrial application.
- Not fall under section 3 and section 4 of Patents act 1970.
Invention must not be:
- Published in India or elsewhere.
- In prior public knowledge or prior use within India.
- Claimed before.
Section 3 and section 4 of the Indian Patents Act,1970 lists the following as not being inventions within the meaning of the act and therefore, being not patentable:
- An invention which is frivolous or which claims anything obviously contrary to the well-established natural laws.
- An invention, the primary or intended use or commercial exploitation of which could be contrary to public order or mortality or which causes serious prejudice to human, animal or plant life or health, or to environment.
- The mere discovery of a scientific principle or the formulation of an abstract theory or divorce of any living thing or non-living substance occurring in nature.
- The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
- A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.
- The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way.
- A method of agriculture or horticulture.
- Any process for the medical, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process or any process for a similar treatment of animals to render them free disease or to increase these economic values or that of their products.
- Plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals.
- A mathematical or business method or a computer programme per se or algorithms.
- Literary, dramatic musical or artistic work or any other aesthetic creation including cinematographic works and television productions.
- A mere scheme or rule or method of performing mental act or method or playing game.
- A presentation of information.
- Topography of integrated circuits.
- An invention which, in effect, is a traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component.
The patentee is duty bound to ensure that the monopoly created by patent is not used unfairly. The failure of the patentee to discharge his duties would result in denial of granting patent rights by government of India. Section 122 of the Indian Patents Act,1970 provides that the refusal or failure to furnish any information to the central government or the controller shall be punishable with fine which may extend to ten lakh rupees.
Steps for registration:
STEP 1: Filing of a patent application or priority application.
STEP 2: Publication of application.
STEP 3: Opposition of patent.
STEP 4: Request for examination.
STEP 5: Examination and clarification of raised objections, if any.
STEP 6: Grant of patent.
A trade mark is a visual representation attached to goods for the purpose of indicating their origin. Section 2(1) (zb) of The Trade Marks Act,1999, defines trade mark as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors. The Sind High Court in Firm Koonerji Behcari Lal v. Firm Adam Hazi Pir Mohammed, observed that a trade mark is some symbol consisting in general, of a picture, label, word or words, which is applied or attached to goods of a trader so as to distinguish them as his from similar goods of other traders and to identify them as his goods or as those of his successors in the business in which they are produced or put forward for sale.
Need and Emergence of Trade Mark Laws
Earlier trade marks were known as common law marks. The common law marks could not be registered as there was no law under which it could be done. Enactment of the Trade and Merchandise Marks Act,1958 brought into existence a system of registration of trade marks which gave statutory recognition to proprietorship of trade narks and defined the rights conferred by such registration and prescribed remedies in respect of infringement of those rights. The 1958 act has now been replaced by 1999 act.
Types of Trade Marks
- Trade Mark: used for goods
- Service Marks: used for services
- Collective Marks: used to show membership in an association
- Certification Marks: certify quality of goods
- Well Known Trade Marks
Steps of registration:
STEP 1: Trademark search
STEP 2: Filing Trademark application
STEP 3: Examination
STEP 4: Publication
STEP 5: Registration certificate
STEP 6: Renewal
The word “copyright” is derived from the expression “copier of words”. It is a unique kind of intellectual property. The right which a person acquires in a work, which is the result of his intellectual labor is called his copyright. The statutory definition copyright is contained in The Copyright Act,1957.
The following literary and artistic works are covered under copyrights:
- Literary and Scientific works
- Musical work
- Artistic work
- Photographic work
- Motion pictures
- Computer programs
In India copyrights exist for 60 years for literary, dramatic, musical and artistic works after the death of creator. In case of photograph, film, sound recording copyright term is 60 years from the beginning of calendar year next following year in which it is published or released.
Main features of copyright act of 1957
- Creation of copyright office and a Copyright Board to facilitate registration of Copyright and to settle certain kinds of disputes arising under the Act for compulsory licensing of Copyright.
- Definition of various categories of work in which copyright subsists and the scope of the rights conferred on the author under the act.
- Provisions to determine the first ownership of copyright in various categories of works.
- Term of copyright for different categories of works.
- Provisions relating to assignment of ownership and licensing of copyright including compulsory licensing in certain circumstances.
Steps for registration of a copyright
- The persons applying for a copyright has to give notice of his application to every person who claims or has any interest in the subject-matter of the copyright or disputes the rights of the application to the copyright, for instance, in the case of a joint authorship when only one of the authors makes an application, a notice of such an application is to be given to the author.
- If no objection to such registration is received by the Registrar of Copyrights within thirty days of the receipt of the application, he shall be satisfied by the correctness of the particulars given in the application, enter the particulars in the Register of Copyrights.
- If the registrar of Copyright receives any objection to such registration within the time of thirty days of receipt of the application, he may, after holding such inquiry as he deems fit, enter such particulars of the work in the register of Copyrights as he deems proper.
- The Registrar of Copyrights shall, as soon as may be, send, wherever practicable, a copy of the entries made in the Register to the parties concerned.
Applications of geographical or locality origin to identify goods for trade purpose is not a new phenomenon. Certain agricultural products have special qualities that are influenced by geographical climate or soil. The term Geographical Indication has been chosen by WIPO includes all existing means of protection of such names and symbols, regardless of whether they indicate that qualities of a given product are due to its geographical origin, or they merely indicate place of origin of a product.
In India, registration of such products can be done under Geographical Indication of goods (registration and protection) Act 1999 and Geographical Indication of goods (registration and protection) rules 2001. Protection under Geographical Indications is granted for 10 years and renewal is possible time to time for 10 years.
Steps for registration:
STEP 1: Filing of application
STEP 2 and 3: Preliminary scrutiny and examination
STEP 4: Show cause notice
STEP 5: Publication in the geographical indications journal
STEP 6: Opposition to registration
STEP 7: Registration
STEP 8: Renewal
STEP 9: Additional protection to notified goods
STEP 10: Appeal
Section 2(d) of The Designs Act,2000 defines design as:
- Features of shape, configuration, pattern, ornament or composition of lines or columns.
- Applied to an article.
- In two dimensional or three dimensional or both.
- Which appeals to and are solely judged by the eyes.
- By an industrial process or means.
Designs do not include:
- Anything which is in substance.
- A mere mechanical device.
- Any trade mark.
- Any artistic work.
The procedure for registration of designs is simple and easy as compared to trade mark or a patent. Briefly, the procedure consists of following steps:
- Submission of application.
- Removal of objections/appeal to central government.
- Decisions of central government.
- Registration of the design.
IPR is very essential for progressive development of the society. The IPR is basic necessity to be a part of local as well as global competitive trade as without dissemination of IPR knowledge and implementation, creating the innovative environment is really impossible.
 AIR 1970 SC 564: (1970) 3 SCR 530
 AIR 1984 SC 667: (1984) 2 SCC 534: (1984) 2 ECC 142: 1984 UJ (SC) 475: 1984 Cur Civ LJ 292: 1984 SCC (Cri) 313: (1984) 1 Comp LJ 362
 (1979) 2 SCC 511: AIR 1982 SC 144: 1979 ALL LJ 290: (1979) SCWR 337: (1979) 2 SCR 757
 The Trade Marks Act,1999
 AIR 1944 Sind 21
 Dr. B L Wadhera, Law Relating to Intellectual Property (Lexis Nexis, 5th edn., 2017)
 Dr. B L Wadhera, Law Relating to Intellectual Property (Lexis Nexis, 5th edn., 2017)
Author: Anubhav Jindal
Editor: Kanishka Vaish, Senior Editor, LexLife India.