LegalCrystal – Blog

Dear Reader,

Intellect refers to intangible things such as ideas, inventions, signs and information of an individual. Likewise Intellectual property refers to creation of mind i.e. inventions, industrial designs for article, literary and artistic work, symbols etc.

Intellectual Property Rights(IPR) are the legal rights governing the use of creations of the human minds.  Intellectual Property Law regulates the creation, use and exploitation of mental or creative labor.

Intellectual property is divided into two categories:

Copyright which includes literary and artistic works such as novels, poems and plays, films,t musical works, drawings, paintings, photographs, sculptures and architectural designs.  It is in a description of a thing.

Industrial property which includes inventions(patents), Trademarks, industrial designs, and geographic indications of source.

In India IPRs are protected under the following different Acts namely:

The Biological Diversity Act, 2002

The Copyright Act 1957

The Designs Act 2000

The Geographical Indications of Goods

(Registration and Protection) Act,1999

The Patents Act 1970

The Protection of Plant Varieties and Farmer’ Rights Act 2001

The Semiconductor Integrated Circuits Layout-Designs Act, 2000

The Trade Marks Act 1999.

Apart from the aforesaid Acts, IPRs are also dealt with in two more areas namely undisclosed information or Trade Secret and the Indian Contract Act.  The Contract Act does not deal with IPRs directly.  It is a law dealing with contracts.  However IPRs are also subject to contracts and licenses.

The Laws governing IPRs are nation specific.  They differ from country to country.  However with globalization it is necessary that there should be some uniformity in the IPRs and the procedure in acquiring them.  It is being achieved by the different organizations through treaties and agreements.

Establishment of World Trade Organization in 1995 resulted in accepting the agreements forming the basis for international trade.  All the WTO agreements apply to all WTO members i.e. a member has to accept all of them, he cannot choose.  These agreements provide certain minimum standards to be observed by members and keep trade policies of the members within agreed limits.  Among the other agreements is an Agreement on the Trade related aspect of intellectual property rights(TRIPS). This has an impact especially on the protection of Computer Software.  We being a member of the WTO have to abide by the TRIPS.

TRIPS talks about the following kinds of intellectural property Rights

Copyright and Related Rights

Trademarks

Geographical Indications

Industrial designs

Patents

Layout – designs (Topographies) of Integrated Circuits

Protection of Undisclosed Information (Trade Secret)

One more US Organisation WIPO (World Intellectual Property Organisation)  was established.  Its purpose is to promote the protection of intellectual property throughout the world through co-operation among states in collaboration with other international organisations and to ensure administrative cooperation between the intellectual property associations.  India is  one of the 171 States of the world which are members of WIPO.

Patents could be for process or product. If a patent is taken out for a process in arriving at a known product, any other person may take out a patent for another process for arriving at the same known product. But when a patent is taken out for a new product which was not known before and the patent describes one specific process in making the new product, then the patent is entitled to protection against any other process in making the same product. Any person who even adopts a different process in arriving at the same product infringes the patent (section 48 of the Patents Act).

In earlier times, patents were granted for fourteen years presumable due to the reason that it took about seven years to train the trainees and fourteen years to train two generations of trainees. In England it was increased to sixteen years in the early part of the twentieth century. We followed suit and sixteen years period was provided in the previous Act dealing with Patents. In the Patents Act the period was 14 years except for some categories where the norm, was five or seven years (Section 53 of the Patents Act)TRIPS mandates protection of patents for twenty years. We have also provided the same by the 2002 amendment.

Patents can be inherited by the heirs of a patentee. A Patentee may sell (assign) or mortgage a patent. They have the right to exclude others from making, using or selling the invention and may authorize others to do any of these things by a license and receive royalties or other compensation for the privilege (Chapter xiii of the Patents Act: Register of Patents)

A person making unauthorized use of a patented invention, may be sued by the patentee for damages and can be injuncted (can obtain an order of inunction) to prevent further infringement. However there are no provision for Criminal Prosecution for the infringer.(Chapter XII of the Patents Act: Suits Concerning Infringement of Patents) TRIPS mandates members to provide criminal procedures and penalties in cases of willful trade mark counterfeiting or copyright piracy on a commercial scale, but not for the violation of patents(Article 61 of the TRIPS).