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Intellectual Property- Its Meaning and Development in India

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." Thomas Jefferson.

Intellectual Property Rights (IPR) is the privileges given to the owners of works that are created with the help of individual intelligence. These creations can be in the business, technical, fictional and arty domains and can have various forms comprising, of scripts, inventions, software, a suite or a trade name.

The term "intellectual property" was introduced in the case of Davoll et al. v. Brown in October 1845 in the Massachusetts Circuit Court. In this Justice Charles L. Woodbury held that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears.” Section 1 of the French law of 1791 also stated that "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.

The basic purpose of IPR is to guard the rights of an author for his work and simultaneously permit the general public to view his creativity. IPR law also puts time limits on the rights given to these authors so that a balance is maintained. Intellectual property, like any other form of property can become a material of trade, can be owned, sold as well as bought. This type of property is gradually becoming important for ensuring competition in a knowledge based economy.

Intellectual property is divided into the following categories:

 Copyright

 Patents

 Trade Marks

 Design Rights

 Passing off

 The law of Confidential information

Copyrights, are mainly issued for the protection of original expressions of art, literature, music, drama etc. – for example, Pepsi has a copyright on the phrase “Yeh Dil Maange More”

Patents are the rights granted to the inventor on new inventions which are not common – for example, Graham Bell got a patent on his invention of the telephone.

Trademarks are mainly issued for protection of the make or the brand name and symbol that may be used by the brand owner-for example, the name ‘Coca Cola’ is a sheltered trademark and only the makers can use it.

Design is issued for the protection of artistic or visual features in products – for example, a toothbrush with large bristles can get a legal protection for its unique design.

Confidential information and trade secrets can also be protected by imposing restrictions on the physical use of that information and also imposing contractual obligations upon the persons dealing with that information – for example, the formula for making Coca Cola has been kept secret in this manner.

There are various organizations that are working towards the protection of intellectual property. Some of them are as follows:

(a) World Intellectual Property Organization (WIPO) Geneva which sanctions various treaties in the field of intellectual property.

(b) Paris Convention for the Protection of Industrial Property (relating to patents, trademarks, designs, etc.) of 1883.

(c) Berne Convention for the Protection of Literary and Artistic Works (relating to copyright) of 1886.

(d) Patent Cooperation Treaty (PCT) through which patents can be obtained in different countries by filing a single application.

(e) World Trade Organization (WTO), which contains the Trade Related Aspects of Intellectual Property (TRIPS). This agreement creates an obligation on all the members to recognize intellectual property rights in their country.

In India the Department of Industrial Policy & Promotion is the supreme authority for all matters concerning WIPO. There have been remarkable developments in the field of intellectual property in India which is evident from the statistics shown below:

(a) In the year 1999-2000 there were merely 4824 application for patents that were filed whereas in 2006-2007 a total of 28,882 applications have been filed.

(b) There were merely 2824 applications examined in the year 1999-2000 whereas in 2006-2007 the number has gone up to 14,119 in 2006-07.

(c) There was a backlog of 5 lakh cases which has been brought down to zero now.

(d) The process of renewal of Trademarks certificates is now being done instantly and new applications are examined within a week.

(e) In 1999-2000, 8,010 registrations of trademarks were done which has increased to 109,361 now that is almost 13 times of the earlier figure.

(f) In the last four years there were 3.38 lakh trademark certificates issued, however in the last 64 years there were merely 1.65 lakh marks were registered.

(g) There have been 39 Geographical Indications products registrations since September, 2003. These include Darjeeling Tea, Pochanpally Ikat, Chaddar, Mysore Silk, Chanderi Saree, Kullu Shawl, Solapur Bidriware, etc.

(h) In the field of designs also the filing of applications has increased from 2874 to 5372 in 2006-07. The number of examined applications has also gone up to 5179 in 2006-07. The registrations in designs have also gone up to 4431 in 2006-07.

Current developments in the Intellectual property in India

(a) Establishment of NIIPM

The Government has already approved the proposal for establishment of a National Institute for Intellectual Property Management (NIIPM) at Nagpur. The Institute will perform training, education and research in this field.

(b) Modernization of the IP Offices

To provide additional employees, establish a higher level of computer network to support on-line processing, strengthen the data base and novelty search facilities, to make the people aware of generation activities, and to provide an access to international treaties/conventions easily the government is planning to modernize the IP offices. This proposal will be taken up in the 11th five year plan.

(c) Madrid Protocol on Trademarks

Madrid Protocol, administered by WIPO, is an uncomplicated, facilitative and lucrative system for the registration of International Trademarks. If India becomes a member of this then the Indian companies will have an advantage of registering their trademarks in all the countries which are the members of this protocol by filing a single application. The amendment of the Trade Marks Act is in progress so that our country can be a member of this protocol.

(d) International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA)

ISA and IPEA’s provide search reports on uniqueness and examination reports on patentability of various inventions. In India a scheme is under consideration to get recognition for the Indian Patent Office as an International Searching Authority (ISA) and International Preliminary Examining Authority (IPEA) under the Patent Co-operation Treaty.

(d) Mashelkar Committee

The Indian government has established a group of technical experts to examine the following patent law issues:

(a) Whether it would be compatible to the TRIPS agreement to limit the grant of patent for pharmaceutical substances only to a new chemical entity or to a new medical entity.

(b) Whether it would be compatible to the TRIPS agreement to exclude micro-organisms from patenting.

The bottom-line is that India is one of the most responsible members of the WTO. Besides creating waves in the global software industry India has framed stringent laws for the protection of IPR in the country. Bill Gates, the chief executive officer of Microsoft Corporation, has rated India as one of the strongest pedestals for software development. It is evident from this statement that if a person like Bill Gates who is so much aware of the IPR issues can designate India as one of the upcoming destinations for the software development then the foreign companies should not worry about the protection of their intellectual property rights while investing in India.

About the Author

Raina Sabharwal
Legal Research Counsel
Mindsprings Solutions (India) Pvt.Ltd.
Website: www.mindsprings.net
Visit Blog:http://lpo-legalprocessoutsourcing.blogspot.com

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