A background note for the IPR seminar by Federation of Indian Chambers
of Commerce & Industry (FICCI)and the Controller General of Patents,
Designs & Trade Marks 9-10 February
2017 Jaipur, India By Ajay Singha
Intellectual Property is the property which has
been created by exercise of intellectual faculty and is the result of a person’s
intellectual creation. Thus IP refers to creations of mind such as inventions,
designs for industrial articles, literary, artistic work and symbols which are
ultimately used in business and commerce. Intellectual Property rights allow
the creators or owners to reap the benefits of their works when these are
exploited commercially. These rights are governed in accordance with the
provisions of corresponding legislation and reward creativity & human endeavor which fuel the progress of humankind. IP is the exclusive right given for a specific
period of time to an individual or entity over a creation of the mind. The
successful commercialization of an idea or invention is the true success for an
entrepreneur. The IP owner therefore has the right to exclude others as far as commercialization aspect is concerned. IP can be classified into following:
·
Patent
·
Industrial Design
·
Trade Mark
·
Copyright
·
Geographical Indications
·
Lay out designs of integrated circuits
The Global Intellectual Property Center (GIPC) Index 2016 ranks India a poor
37th out of 38 economies in terms of Intellectual Property Rights IPR compliance. The Index is based on 30 criteria critical to innovation including
patent, copyright and trademark protections, enforcement, and engagement in
international treaties. India’s overall poor score reflects that the country’s
IP requirements remain outside established international best practices. The
Index found that countries with weak IP systems are less likely to attract
investment, stimulate innovation, and foster the creation of knowledge-based
economies. With the release of India’s draft national IPR policy, the
stage has been set to embrace this solution.
Intellectual Property Rights and related issues are
of core business value to start ups and new business across sectors in
India. IP rights are private in nature and to that extent it is the duty of IP
owners to protect their rights and ensure implementation of related laws. Owners
of small and medium sized business must gain a good understanding of IPR in
order to protect their IP from replication, copying or infringement of any
kind. On the other hand the same businessman needs to proactively defend any
allegations of infringement by other claimants of an Intellectual Property.
Industry bodies like FICCI serve trade and business by creating awareness of
emerging concepts, terminologies, laws and trends relating to IP. Indian laws
are not only compliant but go beyond expectations of TRIPS (Trade Related
Aspects of Intellectual Property Rights) as governed by WTO. The Indian government’s increased commitment to IP is reflected in
establishment of the Intellectual Property Right (IPR) Think Tank in November
2014, which helped put together the draft of a National IPR policy,
and subsequently the announcement of India’s first National IPR Policy by the
Government of India in May 2016.
There are
provisions for the protection of quasi rights under TRIPS like:
·
Confidential information
·
Know how
·
Trade secrets
·
Reputation
·
Brand loyalty
·
Goodwill
·
Data exclusivity
·
Market intelligence
·
Test methods
·
Customer lists
·
Management practices
·
In-house standards and specifications
As far as Patents are concerned the mere
discovery of a new property or new form of a substance is not sufficient.
Similarly, just a rearrangement or admixture is not sufficient to claim patent
and the product or procedure must be inventive. Registering a patent is a long
drawn and complicated process, best handled by trained professionals.
Industrial designs relate to the aesthetic features
of a product. The existence of a product is essential to creating an industrial
design and it shapes the form of a new product to differentiate it from other
products. Companies regularly launch new designs and new models of their
products and industrial designs contribute to the branding of a company. Orchid
Brooch of Tiffany was registered in 1889 and Bunny Bangle by Daniel Brush. A
non-registered industrial design may be enforceable for three years and
registration is given for very long periods of time depending on laws governing
registration which can be licensed or sold by the owners.
Under Trade Marks the signs, symbols, logos,
word mark are included. The mark must be graphically represented and
distinctive. It cannot be similar to other known and registered trade-marks.
Copyright is a right granted on the creation of a literary
artistic work like novels, poems, plays, musical compositions, paintings,
drawings and photographs. After the IT revolution related subjects have taken center stage for copyrights. Computer programs, Database, Recordings, Internet
and Web content, Cable TV content require copyright. While using the above, one
must take prior permission, acknowledge the source and quote the original
creator.
Geographical Indications (GI) is a
unique TRIPS compliant feature increasingly used in India. European countries have
successfully used this for wines, cheese, alcoholic drinks and related food
products. Now a product in India can be registered under the Geographical
Indication of Goods Act if it conveys an assurance of quality and
distinctiveness based on its origin. The product then commands a premium and
bears a distinct character, taste, recall and other distinguishing features.
Recent GI registrations include:
·
Sanganer hand block printing
·
Bikaner bhujiya
·
Kathputli puppets
·
Bagru hand block printing
·
Jaipur jooti
·
Malela clay arts
·
Agra Petha
·
Goa Feni
·
Tirupati Ladoo
These are
examples of products successfully registered under the act as having a unique
geographical indication (GI). Each registration is in favor of a group or
association which then becomes a collective right of the people or units located
and residing in that geographical area to manufacture freely only in the
specified area.
Layout designs in integrated circuits have been
getting copyright-like registrations by several countries for periods of 10 to
15 years. This is possible as sufficient flexibility is given under TRIPS for
this purpose. Due to the functional nature of the chip the design cannot be
effectively protected exclusively by patent or copyright laws. An emerging problem area is electronics, particularly telecom.
Indian companies sometimes do not pay heed to license technologies, leading to
legal disputes with patent holders. There is also a consistent failure by
Indian firms to carry our research and development (R&D) that would create
intellectual property. Trade, tariff and tax policies that discourage genuine
domestic value addition and incentivise masquerading trade as manufacture, are
to blame as well.
Compulsory licensing under
the TRIPS Agreement, relate to the use of a patent without the authorization of
the right-holder. It sets out detailed conditions that must be respected in the
granting of compulsory licences by Member states. Member governments are not
obliged to apply certain of these conditions in circumstances where the
compulsory licence is granted "to remedy a practice determined after
judicial or administrative process to be anti-competitive." This has
happened in India in the pharmaceuticals sector. The Indian company was able to
show that they made efforts in vain to obtain voluntary authorization from the
rights holder on reasonable terms. Authorization for use of a patent under a
“compulsory licence” is predominantly for the supply of the domestic market
where authorities consider the need to correct anti-competitive practices.
For Make in India to be successful manufacturing has to go
beyond simple assembly of complex parts produced elsewhere. India must focus on domestic R&D and
creation of intellectual property within the country. Nations which did not
put in the hard slog required to create intellectual property end up doing to
IP owners what Robin Hood did to the rich. This is neither legal nor
sustainable in the long run even by third world standards. Indian MSMEs are advised to understand and
benefit from IP laws and protect their rights in future. The new Indian IPR policy provides exemptions from
infringement for research on patents. This is as important as granting
exclusive rights to inventors. While exclusivity may encourage innovation exemptions
for research encourages improvement, testing and innovation in the use of patented
inventions. This will be particularly
helpful for MSMEs to develop targeted technologies in a competitive
environment. Additionally procedures have been revamped, digitized and made
transparent. Out of the box solutions are being implemented to expedite decision
making. In order to conduct fair and global level search before granting IPR
protection India has joined agencies like the International Searching Authority
and International Preliminary Examining Authority.
FICCI has been playing an active role
in generating awareness on IP, besides building capacity of enforcement
agencies, across the country. Besides, FICCI carries out extensive research and
proposes customized solutions on IP issues which cater to the needs of Indian
Industry and its growth. The overall objective is to promote innovation and IP
culture for national development; sensitize industry, enforcement agencies,
judiciary and other stakeholders about the significance of IP protection &
its effective enforcement and in building their capacities.
The author is
former Executive Director of the American Chamber of Commerce in India, Member
Transparency International (India) and Honorary Advisor to FICCI, Rajasthan.
Views expressed are personal.
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