Upload
knt-nallasamy-gounder
View
215
Download
0
Embed Size (px)
Citation preview
7/29/2019 Business Law IPR in India
1/22
BUSINESS LAW
INTELLECTUAL PROPERTY RIGHTS
IN INDIA
7/29/2019 Business Law IPR in India
2/22
INDEX
Introduction to Intellectual Property
Rights...................3
Protecting Intellectual Property
Rights...................3
Reasons for the growing importance of Intellectual Property
Rights...........................3
Why Intellectual Property infringements happen?
..........................4
India in Intellectual Property Rights protection: An International
purview...7
Structure of Intellectual Property Offices in
India..................8
Domestic laws related to
IPR...9
Intellectual Property Rights in computer
software....................10
Indian Copyright
Act...................11
7/29/2019 Business Law IPR in India
3/22
Department of Industrial Policy and Promotion (DIPP) and
IPR...............................................12
Intellectual Property Appellate Board (IPAB)
..................12
Impact of
Modernization.................13
Current Issues related to Intellectual Property Rights protection in
India................15
Conclusion and future
ahead.16
Bibliography
20
Introduction to Intellectual Property:
The term Intellectual Property (IP) reflects the idea that its subject matter is the product of
the mind or the intellect. These could be in the form of Patents, Trademarks,
Geographical Indications and Industrial Designs, Layout-Designs (Topographies) of
Integrated Circuits, Plant Variety Protection and Copyright.
Intellectual Property, protected through law like any other form of property, can be a
matter of trade, that is, it can be owned, bequeathed, sold or bought. The major features
7/29/2019 Business Law IPR in India
4/22
that distinguish it from other forms are their intangibility and non-exhaustion by
consumption.
Intellectual Property is the foundation of knowledge-based economy. It pervades all
sectors of economy and is increasingly becoming important for ensuring competitiveness
of the enterprises.
Protecting Intellectual Property Rights:
Experts say that in coming years, corporate battle for supremacy will neither be for market share
on the streets of Bangalore nor Mumbai nor in Dalal Street or Wall Street for large sums of
money. It will not be fighting global cost competitiveness either. It will be before the judicialforum in public visibility and finally behind closed doors with the help of private arbitrators, and
the subject matter of dispute will be intellectual property.
The corporate world is already spending an increasingly large amount of time and money either
defending or obstructing grant of or prevention of the use of IPR (intellectual property rights).
Reasons for the growing importance of Intellectual Property Rights:
India joining the WTO agreement on TRIPs is a recent phenomenon. In such a scenario, there are
two influences impacting the corporate:
1. The markets are getting restructured on the back of IPR, and provide a kind of
first-mover advantage and a strategic opportunity to re-write the market
equation. This is a positive influence.
2. A barrieragainst competition, and ability to realize monopoly or super normal
rent/returns. This is a not-so-socially-positive move, yet is powerful and
strategically important.
The most important factor in such a situation is the faith that the IPR once granted will be a
talisman against competition and any infringement can be fought through the legal system and
the predator punished with penalties. However, the peculiarities of the patent system have made
7/29/2019 Business Law IPR in India
5/22
India Inc. sit up and think again about whether the legal forum is the best way to protect the
commercial interests of the patentees innovation. Mature corporate are for sure moving away
from litigation as a way to deal with or protect their property rights.
Why Intellectual Property infringements happen?
A close look at some of the known and contested infringements shows that the existence of three
factors simultaneously encourages the predator to be adventurous:
1. Innovators of new products often are under compulsion to recover their costs through
product pricing, and this very model of recovery sows the seeds for infringement.
Higher the R&D (research and development) expense, higher the pricing premium
and larger is the menace of infringement. Often, a market for low-tech products gets
created quickly and at a significant price discount.
2. The spurious sellers and sophisticated reverse engineers who sell a variant of the
original product, which are two sides of the same coin, and hence, response will have
to be different.
3. The way we fund commercial research can also be the culprit. Or it can also be that
the inventor over-engineers the product and ends with a classic market dilemma.
However, there are more factors to the growing infringement of Intellectual Property:
Successful infringers are smart guys, and they have the ability to either reverse engineer
the product at lower costs and/or quickly pass it off in the market as original. They
understand and exploit the imperfections of technology and the market.
The real problem is not about reverse engineering or developing a copycat at half the cost.
It is the lack of access to complimentary assets and facilities which are still holding
infringements at lower-than-possible levels.
7/29/2019 Business Law IPR in India
6/22
The Belief that the violator can get away with or at best minimal damage is a critical
requirement and is based on a clear appreciation of the imperfections of the law, be it its
structure and evolutionary nature or its lax implementation.
Successful infringers have a realistic understanding and the ability to exploit the
imperfections of the technology, market and the legal protection the inventor enjoys. This
is in sharp contrast to the patent-holder who swears by his often over-engineered product,
justifies its high pricing and hangs to the patent as a talisman.
A patent, to begin with, can be thought of as a three-way contract, between the inventor,
the granting Government and the public at large. The problem starts here, as at the stage
of patenting the inventor has little knowledge of the source, form and time of the possible
challenge, from the vaguely defined public at large. The patentee compounds this
problem by working to obtain a patent as an end in itself.
There are several reasons why making patents work commercially is important:
Cognitive bias of the administrator: Commercially successful patents have been so not
because of the legal protection they enjoy, but because of the way they work the patent to
be commercially efficient.
Though the innovation process in industries differs, the legal process has a one-size-fits-
all approach. A dispute in a judicial forum does not guarantee success for the original inventor, despite
its impartiality. Research has shown that cognitive bias is sharper in patent and
intellectual property issues. The context of a challenge/infringement is not necessarily the
same as the original grant of the patent. The law on the subject is still young and
evolving.
7/29/2019 Business Law IPR in India
7/22
Lifespan of products and technology is becoming shorter, but the judicial process is
becoming longer. A patent gives its holder a protection of two decades and the possibility
that the product/technology is succeeded by the next generation during this period is very
high. Technology and pharma companies are examples of how a technology can become
dated in a few years a two decade patent protection in most cases is irrelevant.
It will be to the infringers delight to drag the dispute in a judicial forum for a decade, as
by then, few other generations of technology/invention would have happened. Winning
an infringement suit does not automatically lead to injunction on the infringer, as the
courts consider it only on demonstration of its need.
Patent protection versus catch-up time: In reality, what the inventor enjoys is essentially a
catch-up time before the invented around version hits the market.
The protection strategies of the inventor should therefore revolve around: a) lengthening
the catch-up time, and b) when the catch up is about to happen, move to your next
advantage, which means becoming a serial inventor. Reverse engineering a well-oiled
R&D set-up is not as easy as reverse engineering a product.
Research has shown that catch-up time works effectively in certain industries such as auto
parts, pharma and telecommunication, and not so in the case of electrical parts industry.
7/29/2019 Business Law IPR in India
8/22
Mechanisms which are required to achieve a longer catch-up time include technology
bundling, technology concealing, and cross licensing.
In intellectual property (IP) protection, India is rated higher than China and the Czech
Republic, but comes behind the US, the UK, Canada and Taiwan, according to Ernst &
Young and Indian Semiconductor Association report on the semiconductor sector
competitiveness.
In a benchmarking study, E&Y and ISA found that barring the Czech Republic, India hasthe least number of US patent applications and grants to its credit. This is because design
companies in India, being captive arms of multinational companies and third party service
providers, handle some portions of projects rather than execute the entire IP or product
development projects on turnkey basis. However, the report found that there could be
several small Indian companies creating IP but not filing for a US patent owing to the
substantial cost involvement.
India in Intellectual Property Rights protection: An International purview
A UN agency, namely, World Intellectual Property Organization (WIPO) based in
Geneva administers treaties in the field of intellectual property. India is a member of WIPO.
Department of Industrial Policy & Promotion is the nodal Department in the Government of
India for all matters concerning WIPO.
India is also member of 2 major treaties, namely, Paris Convention for the Protection of
Industrial Property (relating to patents, trademarks, designs, etc.) of 1883 and the Berne
Convention for the Protection of Literary and Artistic Works (relating to copyright) of 1886.
7/29/2019 Business Law IPR in India
9/22
Apart from these, India is also a member of the Patent Cooperation Treaty (PCT) which
facilitates obtaining of patents in several countries by filing a single application.
India is also a member of the World Trade Organization (WTO). The WTO agreement,
inter-alia, contains an agreement on IP, namely, the Agreement on Trade Related Aspects
of Intellectual Property (TRIPS). This Agreement made protection of intellectual
property an enforceable obligation of the Member States. TRIPS Agreement sets out
minimum standards of intellectual property protection for Member States.
India has complied with the obligations contained in the TRIPS Agreement and
amended/enacted IP laws.
Bilateral cooperation agreements (MoUs) have been entered into with UK, France, USA,
European Patent Office and Japan. These focus on human resources development, capacity
building and awareness and outreach activities.
Multilateral Cooperation: India has an active cooperation programme in intellectual
property matters with WIPO. These, inter alia, include organization of joint seminars and
workshops and study programmes besides technical assistance by WIPO experts.
Structure of Intellectual Property Offices in India:
http://ipindia.nic.in/ipr_bilaterals/dipp_bilaterals.htmhttp://ipindia.nic.in/ipr_bilaterals/dipp_bilaterals.htm7/29/2019 Business Law IPR in India
10/22
Domestic laws related to IPR:
There are various laws related to IPR in India:
The Copyright Act 1957
The Patents Act 1970
The Trademarks Act 1999
The Designs Act 2001
The Patents Rules 1972
The Copyrights Rules 1958
The Design Rules 2000
The Trade Rules 2001
The Geographical Indications Act 1999
The Semiconductors Integrated Circuits Layout-Design Act, 2000
The Information Technology Act 2000
The framework of IPR laws has undergone a lot of changes over the last few years around the
world with well established minimum bench marks or standards. India too has witnessed the
enactment of major legislative initiatives with regard to stronger protection of IPRs in harmony
with our obligations under TRIPS. These include:
1. The Patents (Amendment) Act, 2005.
2. The Trade Marks Act, 1999 which repeals and replaces the Trade and Merchandise
Marks Act, 1958.
7/29/2019 Business Law IPR in India
11/22
3. A legislation for the protection of geographical indications called the Geographical
Indications of Goods (Registration & Protection) Act, 1999.
4. The Designs Act, 2000 which replaced the Designs Act, 1911.
Intellectual Property Rights in computer software:
In India, the Intellectual Property Rights (IPR) of computer software is covered under the
Copyright Law. Accordingly, the copyright of computer software is protected under the
provisions of Indian Copyright Act 1957. Major changes to Indian Copyright Law were
introduced in 1994 and came into effect from 10 May 1995. These changes or amendments made
the Indian Copyright law, one of the toughest in the world.
The amendments to the Copyright Act introduced in June 1994 were in themselves, a landmark
in the India's copyright arena. For the first time in India, the Copyright Law clearly explained:
the rights of a copyright holder
position on rentals of software
the rights of the user to make backup copies
The amendments imposed heavy punishment and fines for infringement of copyright of
software.
Most software is easy to duplicate and the copy is usually as good as original, the Copyright Act
was greatly in demand. According to this Act, the infringer can be tried under both civil and
criminal law.
According to section 16 of this Act, it is illegal to make or distribute copies of copyrighted
software without proper or specific authorisation. The only exception is provided by section 52
of the Act, which allows a backup copy purely as a temporary protection against loss, distribution
or damage to the original copy. The 1994 amendment to the Copyright Act also prohibits the sale
or hiring, or any offer for sale or hire of any copy of the computer program without specific
authorisation of the Copyright holder.
7/29/2019 Business Law IPR in India
12/22
A civil and criminal action may be instituted for injunction, actual damages (including infringer's
profits) or statutory damages per infringement etc. With these amendments, even the criminal
penalties have substantially increased. Section 63 B, stipulates a minimum jail term of 7 days
which can be extended up to 3 years. The Act further states the fine ranging from Rs. 50,000 to 2,
00,000.
Government agencies have been very actively participating in protecting of the rights of the
copyright holder. Both Ministry of Information Technology and Ministry of Human Resource
Development have been active in incorporating amendments to the Indian Copyright Act. These
agencies are now helping the law enforcing agencies e.g. the Police in enforcing the law. Today,
NASSCOM officers and those of these government agencies are committed to enforce copyright
laws and eradicate the menace of software piracy.
Indian Copyright Act :
"Computer Programme" has been included in "Literary Works". The definition reads as follows:
"Literary Work" includes computer programmes, tables and compilations including
computer databases.
"Computer Programme" means a set of instructions expressed in words, codes, and
schemes or in any other form, including a machine-readable medium, capable of causing
a computer to perform a particular task or achieve a particular result.
"Author" means in relation to any literary, dramatic, musical or artistic work, which is
computer, generated the person who causes the work to be created.
"Computer includes any electronic or similar device having information processing
capabilities".
Markets are churning rapidly on the back of IPR and old equations being re-written with
significant economic impact. The IPR law is still young and evolving. What India needs at this
juncture is a forum with teeth, to balance and protect the inventor, the predator and, of course, the
market. What one needs is not another judicial forum, but a forum of inventors, infringers, and
the market.
7/29/2019 Business Law IPR in India
13/22
Department of Industrial Policy and Promotion (DIPP) and Intellectual Property Rights
(IPRs):
DIPP is concerned with legislations relating to Patents, Trade Marks, Designs and Geographical
Indications. These are administered through the Office of the Controller General of Patents,
Designs and Trade Marks (CGPDTM), subordinate office, with headquarters at Mumbai as
under:
a) The Patents Act, 1970 (amended in 1999, 2002 and 2005) through the Patent
Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.
b) The Designs Act, 2000 through the Patent Offices at Kolkata (HQ), Mumbai,
Chennai and Delhi.
c) The Trade Marks Act, 1999 through the Trade Marks Registry at Mumbai (HQ)
Chennai, Delhi, Kolkata and Ahmedabad.
d) The Geographical Indications of Goods (Registration & Protection) Act, 1999 through
the Geographical Indications Registry at Chennai.
The Controller General of Patents, Designs and Trade Marks (CGPDTM) is also in-charge of theOffice of the Patent Information System, Nagpur and the Intellectual Property Training Institute,
Nagpur. The office has 446 personnel in the patents and designs Offices and 291 personnel in
trademarks and geographical indication Offices. Along with the legislation, rules have also been
amended to install a user-friendly system for processing of IP applications.
Intellectual Property Appellate Board (IPAB):
An Intellectual Property Appellate Board (IPAB) has been set up at Chennai to hear appealsagainst the decisions of Registrar of Trademarks, Geographical Indications and the Controller of
Patents. The following are some of the responsibilities:
IP Legislations
http://www.ipindia.nic.in/http://www.ipindia.nic.in/http://www.ipindia.nic.in/http://ipindia.nic.in/ipr/patent/patact_99.PDFhttp://ipindia.nic.in/ipr/patent/patentg.pdfhttp://ipindia.nic.in/ipr/patent/patentg.pdfhttp://ipindia.nic.in/ipr/patent/patent_2005.pdfhttp://ipindia.nic.in/ipr/design/design_act.PDFhttp://ipindia.nic.in/tmr_new/tmr_act_rules/tmr_act.pdfhttp://ipindia.nic.in/ipr/gi/gi_act.PDFhttp://www.ipab.tn.nic.in/http://www.ipindia.nic.in/http://www.ipindia.nic.in/http://ipindia.nic.in/ipr/patent/patact_99.PDFhttp://ipindia.nic.in/ipr/patent/patentg.pdfhttp://ipindia.nic.in/ipr/patent/patent_2005.pdfhttp://ipindia.nic.in/ipr/design/design_act.PDFhttp://ipindia.nic.in/tmr_new/tmr_act_rules/tmr_act.pdfhttp://ipindia.nic.in/ipr/gi/gi_act.PDFhttp://www.ipab.tn.nic.in/7/29/2019 Business Law IPR in India
14/22
Copyright is protected through Copyright Act, 1957, as amended in 1999 - administered
by the Department of Higher Education.
Layout of transistors and other circuitry elements is protected through the Semi-conductor
Integrated Circuits Layout-Design Act, 2000 - administered by the Department of
Information Technology.
New varieties of plants are protected through the Protection of Plant Varieties and
Farmers Rights Act, 2001 - administered by the Department of Agriculture and
Cooperation.
Article 39 of the TRIPs Agreement mandates protection of test data submitted to
regulatory authorities for obtaining marketing approvals against unfair commercial use.
A Committee under the chairmanship of Secretary, Department of Chemicals and Petro-
chemicals has examined this issue and submitted its Report to the Government.
Impact of Modernization:
The growing role of India in international IPR routines and the realization about their
importance has led to a surge in the number of such declarations and filings in India. The
following figures suggest so:
1. Patents:
The filing of patent applications has increased from 4824 in the year 1999-2000 to 28,882
applications in the year 2006-2007.
The number of applications examined has gone up to 14,119 in 2006-07 against the figure
of 2824 in the year 1999-2000.
Statistics for patent filing:
1999-
20002000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07
Applications
filed4824 8503 10,592 11,466 12,613 17,466 24,415 28,882
Applications
Examined2824 4264 5104 9538 10,709 14,813 11,569 14,119
http://education.nic.in/CprAct.pdfhttp://www.mit.gov.in/download/siclda.pdfhttp://www.mit.gov.in/download/siclda.pdfhttp://www.mit.gov.in/download/siclda.pdfhttp://agricoop.nic.in/PPV&FR%20Act,%202001.pdfhttp://agricoop.nic.in/PPV&FR%20Act,%202001.pdfhttp://chemicals.nic.in/DPBooklet.pdfhttp://education.nic.in/CprAct.pdfhttp://www.mit.gov.in/download/siclda.pdfhttp://www.mit.gov.in/download/siclda.pdfhttp://agricoop.nic.in/PPV&FR%20Act,%202001.pdfhttp://agricoop.nic.in/PPV&FR%20Act,%202001.pdfhttp://chemicals.nic.in/DPBooklet.pdf7/29/2019 Business Law IPR in India
15/22
Patents
Granted1881 1318 1591 1379 2469 1911 4320 7359
Scope of Patentability
Section 2: Definitions and Interpretations
1. Clause (j) defines invention as follows : - 'invention' means a new product or process involving
an inventive step and capable of industrial application; In order to limit patentable subject matter
it is suggested that the definition of invention could be changed as follows : 'invention' means a
basic new product or process involving inventive step and capable of industrial application. The
scope of patentable inventions can be contained only through the definition of invention.
2. Clause (ta) defines pharmaceutical substance as follows: - 'pharmaceutical substance' means
any new entity involving one or more inventive steps. The above definition is quite broad and not
specific. Even Mashelkar Committee on R&D for pharmaceuticals had made re-commendation in
this respect. The definition ought to be as follows: (ta) 'pharmaceutical substance' includes new
drug molecule involving one or more inventive steps.
What is not patentable?
Clause (d) reads as follows: - 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.
The explanation under clause (d) reads as follows : Explanation :- For the purposes of this clause,salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of
isomers, complexes, combinations and other derivatives of known substance shall be considered
to be the same substance, unless they differ significantly in properties with regard to efficacy.
7/29/2019 Business Law IPR in India
16/22
The above explanation can give different interpretations for different purposes. Moreover when
new molecules only are to be patentable salts, esters, etc. and other derivatives of the known
substance should not be treated as patentable inventions. The purpose of clause (d) and
explanation should be to contain the patentable subject matter. The explanation should be either
deleted or modified as follows: Explanation :- For the purposes of this clause, salts, esters, ethers,
polymorphs, metabolites, pure form, particle size, isomers, complexes, combinations and other
derivatives of known substance shall not be patentable.
New clause (ja) may be incorporated as follows : - inventions which do not strictly meet
the criteria of industrial application e.g. stem cell, partial gene fragments, research tools,
PCR technique, machine based embedded bio-informatics software, genomic information
and data base. Clause (j) in the Patents Act reads as follows: - plants and animals in whole or any part
thereof other than micro-organisms but including seeds, varieties and species and
essentially biological processes for production or propagation of plants and animals.
Micro-organisms and non-biological and micro-biological processes are under mandated
review in the WTO. The review was initiated in 1999 and till now final decision has not
yet been taken. In addition to this no definition of micro-organism has been provided in
the amended Act or even in the TRIPS Agreement. Micro-organisms occur in nature,
there is genetically modified micro-organism and then they perform certain activities.
Since micro-organism occurs in nature they are discoveries and not inventions and as
such they should not be patentable. Genetically modified micro-organisms perform
certain activities and as such only specific activity can be patented only as process
patents. Because of these reasons it is desirable that micro-organisms are excluded from
patentability.
Section 5: The amended Act provides that Section 5 shall be omitted. However, it is
important to be more specific about the scope of patentability. Because of the new scope
of patentability Section 5 should read as follows: Section 5 - Patents shall be available for
basic new inventions including pharmaceutical substances as defined in Section 2 clause
(ta) whether products or processes in all field of technologies provided that they are new,
7/29/2019 Business Law IPR in India
17/22
involve an inventive step and are capable of industrial application excluding inventions
not patentable as stipulated under Section 3.
Section 11 A Sub-section (7) The third proviso of this sub-section reads as follows : -
provided also that after the patent is granted in respect of applications made under sub-
section (2) of section 5, (Mail Box applications filed during 1995-2004) the patent holder
shall only be entitled to receive reasonable royalty from such enterprises which have
made significant investment and were producing and marketing the concerned product
prior to the 1st day of January 2005 and which continue to manufacture the products
covered by the patent on the date of grant of the patent and no infringement proceedings
shall be instituted against such enterprises. Even the provisions in sub-clause (7) about
'reasonable royalty' and 'significant investment' can create unnecessary claims and
objections to meet the objectives of allowing enterprises to continue manufacturing of the
product if the patents are granted. In addition the applications should be dealt with only
on the basis of proposed new definitions of invention and pharmaceutical substances.
Section 25
Section 117 A in sub-section 2 provides for sections for which appeals shall lie to the appellate
board. The amended version of this section provides that only sub-section (4) of Section 25
relating to post-grant opposition would be appealable. No appeal possibility is thus available in
regard to pre-grant opposition. It is important that even any decision taken relating to pre-grant
opposition should also be appealable both by the patent applicant and the opponent. In view of
this, it would be appropriate if decisions taken under the entire Section 25 become appealable.
Does Indian patent law stifle innovation?
Ultimately, the debate boils down to whether disallowing patents on incremental innovation will
discourage firms from doing fresh research.
Section 3(d) forces firms to focus efforts on innovation and hardcore research instead of
tinkering with known substances
The aggressive posture of the Geneva-based IFPMA and the Washington-based PhRMA on the
Madras High Court Order rejecting the Novartis challenge to Sec 3 (d) of the Indian Patents Act
7/29/2019 Business Law IPR in India
18/22
is not surprising because the Indian Patent Act will now become a model law for several
developing countries, defeating the IFPMA and PhRMA objective of establishing a TRIPs-plus
IPR regime.
Likewise, the threat of depriving Indians of new research products seems hollow. If they do not
register their patents in India, the domestic industry has the proven capability to reverse-
engineer the same and provides them at much lower prices. If they register the patent and do not
work it, India's patent law has adequate mechanism to deal with such situations and ensure that
the product is available to the needy.
More importantly, what is there in the new Section 3(d) that is causing heartburn? It creates a bar
to differentiate discovery from invention. The patent applications that cannot cross the bar are
treated as "trivial changes" not eligible for patents.
Novartis argued in the Madras high court that the bar be removed as it is not clearly defined.
This would have allowed trivial changes to slip through and be eligible for patents. The logical
thing was to seek a clearer definition of the bar than seeking its removal. But obviously, that
would not have served the purpose of those wanting to patent trivial changes.
2. Trademarks:
The backlog of unexamined trademark applications of approximately 5 lakh cases has
been brought down to zero.
Renewal of Trademarks certificates are now being done instantaneously in clear cases and
new applications are examined within one week.
As against only 8,010 registrations in 1999-2000, 13 times more TMs were registered in
2006-07, that is, 109,361.
3.38 lakh trademark certificates were issued during the last 3 years whereas only 1.65
lakh marks were registered in 64 years (since 1940 to 2004).
Statistics for trademarks:
1999-2000 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07
7/29/2019 Business Law IPR in India
19/22
Filed 66,378 84,275 90,236 94,120 92,251 78,996 85,699 1,03,419
Examined 42,500 70,115 1,59,735 2,49,003 89,958 72,091 79,200 85,185
Registered 8010 14,202 6204 11,190 39,762 45,015 1,84,325 1,09,361
3. Geographical Indications:
39 Geographical Indications products have been registered since September, 2003. These
include Darjeeling Tea, Chanderi Saree, Pochanpally Ikat, Solapur Chaddar, Mysore Silk,
Kullu Shawl, Bidriware, etc.
4. Designs:
The filing of applications for Design has increased from 2874 in 1999-2000 to 5372 in
2006-07.
The number of applications examined has also gone up to 5179 in 2006-07 against the
figure of 2067 in 1999-2000.
The number of Designs registered has also increased from 1382 in 1999-2000 to 4431 in
2006-07.
Current Issues related to Intellectual Property Rights protection in India:
Establishment of NIIPM: The Government has approved a proposal for establishment
of a National Institute for Intellectual Property Management (NIIPM) at Nagpur. The Institute
will perform training, education, research and think tank functions.
Modernization of IP Offices: Modernization of IP Offices will provide additional
human resources, higher level of computerization to support on-line processing, strengthening
of data-base and novelty search facilities, awareness generation activities, accession to
international treaties/conventions is being taken up in 11th Five Year Plan.
7/29/2019 Business Law IPR in India
20/22
Madrid Protocol on Trademarks: Madrid Protocol, administered by WIPO, is a
simple, facilitative and cost effective system for registration of International Trademarks.
Indias membership of Madrid Protocol will help Indian companies to register their trade marks
in the member countries of the Protocol through a single application. An exercise to amend the
Trade Marks Act is underway to enable joining the Madrid Protocol.
ISA and IPEA: A proposal is under consideration to seek recognition for the Indian
Patent Office as an International Searching Authority (ISA) and International Preliminary
Examining Authority (IPEA) under the Patent Co-operation Treaty. ISA and IPEAs provide
search reports on novelty and examination reports on patentability of inventions.
Mashelkar Committee: The Government of India has set up a technical expert group
under the chairmanship of former Director General of CSIR (Dr. R.A. Mashelkar) to examine
the following two patent law issues:
o Whether it would be TRIPS compatible to limit the grant of patent for
pharmaceutical substance to new chemical entity or to new medical entity
involving one or more inventive steps; and
o Whether it would be TRIPS compatible to exclude micro-organisms from
patenting.
Conclusion and future ahead:
Currently IPR laws relate to Geographical Indications, Industrial Designs and layout
designs of Integrated Circuits. Protection of Undisclosed Information (Trade Secrets) is
still not within the ambit of Customs Laws. Section 11(2) and has to be amended.
Formulation of Rules which would lay down detailed procedures enabling IPR holders to
approach Customs authorities for enforcement of IPR laws at borders which is already
under the active consideration of the Board.
7/29/2019 Business Law IPR in India
21/22
Training courses to sensitize customs officers on IPR and their role in enforcing IPR at
borders to be organized on a large scale.
Amendments are needed under Copyrights Act, Trade Marks Act and other IPR laws to
empower Central Excise officers to seize counterfeit goods manufactured in India and
take appropriate action under Central Excise Act 1944 to prevent illicit manufacturing of
counterfeit goods.
Bibliography:
1. www.nipoonline.org
2. www.iprindia.com
3. www.iprlawindia.org
4. www.laws4india.com/ipr.asp
5. www.indianembassy.org/policy/ipr/ipr_2000.htm
6. www.ficci.com/media-room/speeches-presentations/2007/apr/gauri/AniceJoseph.ppt
7. www.dipp.nic.in/ipr.htm
7/29/2019 Business Law IPR in India
22/22