Which IPRs are covered under
TRIPS?
The IPRs covered by the TRIPS
Agreement are:
• Copyright
and related rights (i.e. the rights of performers, producers of sound
recordings and broadcasting organizations)
• Trademarks,
including service marks
• Geographical
indications including appellations of origin
• Industrial
designs
• Patents
including the protection of new varieties of plants
• Layout-designs
(topographies) of integrated circuits
• Undisclosed
information, including trade secrets and test data
What are the criteria for
grant of a patent?
Patents provide property rights
to inventions. An 'invention' may be defined as a novel idea which permits in
practice the solution of a specific problem in a field of technology. Patents
are available for any invention, whether products or processes, in all fields
of technology, provided that they are new, involve an inventive step and are
capable of industrial application. Thus, the TRIPS Agreement stipulates that
countries shall grant patents for inventions in all fields of technology and
for both:
• Products,
and
• Processes,
including those used in manufacturing products.
Is there
any special or unique provision on Patents in the Indian law?
The Patent
Act has a set of exceptions stated in Section 3 by which certain things cannot
be protected by the law. One very unique provision is embodied in Section 3,
clause (d). This provision prevents patenting of minor improvements in chemical
and pharmaceutical entities unless the invention results in the enhancement of
known efficacy of that substance. This prevents patenting of 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. This provision is a safeguard for public health
purposes and sets a higher threshold which has been interpreted as therapeutic
efficacy for the grant of a patent on pharmaceuticals.
What is a
trademark, how is trademark important and what is the period of protection
provided by a trademark?
A trademark
is a sign or mark that is used to distinguish the goods or services of one
enterprise from those of another enterprise. It can be any distinctive word,
letter, numeral, drawing, picture, shape, colour, sound, smell, logotypes, or
any combination of these that may be used for distinguishing goods and
services, of any given business. A trademark is used extensively by an
enterprise to reach customers by enabling customers to identify and locate the
product. A trademark is issued by a national office and is granted for a period
of 10 years and may be renewed indefinitely.
How is a patent granted?
Which office deals with patents?
A patent is granted by a
national patent office or by a regional office that does the work for a number
of countries, such as the European Patent Office and the African Regional
Industrial Property Organization. Under such regional systems, an applicant
requests protection for the invention in one or more countries, and each
country decides as to whether to offer patent protection within its borders.
The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing
of a single international patent application which has the same effect as
national applications filed in the designated countries In India, the
Controller General of Patents, Designs and Trademarks is responsible for the
administration of the Patents Act, 1970 through the Patent Offices located at
Kolkata, Mumbai, Delhi and Chennai.
What is the criteria for
grant of a trademark?
The criteria for the grant of a
trademark are:
• The
selected mark should be capable of being represented graphically (that is in
the paper form).
• It
should be capable of distinguishing the goods or services of one undertaking
from those of others.
• It
should be used or proposed to be used in relation to goods or services for the
purpose of indicating a connection in the course of trade between the goods or
services and some person that has the right to use the mark.
Under what conditions is a
trademark granted in India?
Under the Indian Trademarks
Act, 1999, the following conditions have been included for the grant of a trademark:
• Definition
of trademark has been enlarged to include shape of goods, packaging and
combination of colors which can be adopted as a trade mark.
• Registration
of Service Marks allowed in addition to Trademarks for goods.
• Single
Registration of trademark; no separate application necessary for each
category/class of goods or services, a single application would do; however
filing fee will be charged separately for each class of goods/services.
• Enhanced
punishment for the offences relating to trademark on par with the Copyright
Act, 1957 to prevent the sale of spurious goods.
• Term
of registration of trademark is ten years, subject to renewal thereafter.
• Registration
of Collective Marks owned by associations allowed.
• Some
offences relating to trademark made cognizable.
• Extension
of application of convention countries in India
How to choose a trademark?
To choose a trademark it is
advisable to:
• Undertake
a comprehensive search that includes both market study as well as a study of
data base of the country one chooses to trade in.
• Avoid
marks which are:
O descriptive
O have reference to character
and quality of goods
O may serve in a trade to designate the
intended purpose
O whichcan only be considered
for registration on acquiring a distinctive character as a result of the use
O is a well known mark by
virtue of extensive publicity
O is of such a nature as to
deceive the public or cause confusion
O likely to hurt the religious
susceptibilities of any class or citizens
O containing scandalous or
obscene matter
O Marks prohibited under law;
e.g Emblems and Names (Prevention of improper use) Act, 1950 or direction of
the Central Government listing the non registrabale marks.
What is a design?
Design is another intellectual
property right and refers to external features of shape, configuration,
pattern, ornamentation or composition of lines or colours applied to any
article, whether in two or three dimensional (or both) forms. Design does not
include any mode or principle of construction or anything which is mere
mechanical device. It also does not include any trade mark or any artistic
work.
How is design defined
in India?
The IPR of Design is covered by the Designs Act, 2000. This
means only the features of shape, configuration, pattern, ornament or
composition of lines or colours applied to any article whether in two
dimensional or three dimensional or in both forms, by any industrial process or
means, whether manual, mechanical or chemical, separate or combined, which in
the finished article appeal to and are judged solely by the eye; but does not
include any mode or principle of construction or anything which is in substance
a mere mechanical device, and does not include any trade mark as defined in
clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks
Act, 1958 or property mark as defined in section 479 of the Indian Penal Code
or any artistic work as defined in clause (c) of section 2 of the Copyright Act,
1957 43 of 1958.
What are the important
aspects in Indian Design Act 2000?
The important aspects in Indian
Design Act 2000 are:
• identification
of non-registerable designs
• introducing
a classification system (Locarno classification)
• elimination
of secrecy period of two years for a registered design
• provision
of public inspection after notification
• introduction
of rights of registered proprietor of design
• initial
term of protection is 10 years followed by another 5 years on request
• provision
of restoration of lapsed design.
What is a trade secret? How
is it protected?
A trade secret is an IPR that
is with the holder indefinitely or rather as long as he can keep his secret as
a trade secret. To enable an enterprise to keep something as a trade secret,
the holder must ensure secrecy agreements with the employees in the business.
These can be built into the service contract agreements. For information to be
treated as a trade secret, it is necessary that there should be commercial
value associated with the information, that this commercial value would be
lost, damaging the commercial interests of the holder of the trade secret and
that the holder had taken reasonable care to protect the secret so that its loss
would be possible only through an illegal access.
What is expected from
patentee as an obligation to the state?
A
patentee must disclose the invention in a patent document for anyone to
practice it after the expiry of the patent or practice it with the consent of
the patent holder during the life of the patent.
What is considered as the
date of patent?
The date of patent is the date
of filing the application for patent (whether provisional or complete). The
term of the patent is counted from this date.
What is the term of a patent
in the Indian system?
Term of the patent is 20 years
from the date of filling for all types of inventions
How does one keep a patent
in force for the full patent term?
A patent has to be maintained
by paying the maintenance fees every year. If the maintenance fees is not paid,
the patent will cease to remain in force and the invention becomes open to
public. Anyone can then utilize the patent without the danger of infringing the
patent.
What is 'mail box'
provision?
TRIPS requires that countries,
not providing product patents in respect of pharmaceuticals and chemical
inventions have to put in a mechanism for accepting product patent applications
w.e.f. 1 January 1995. Such applications will only be examined for grant of
patents, after suitable amendments in the national patent law have been made.
This mechanism of accepting product patent applications is called the
"mail box" mechanism.
Does India have provision
for grant of EMR?
Yes. The necessary amendment
to: the Patents Act, 1970 came into force on 26 March 1999. The provision is
applicable with retrospective effect from 1 January 1995.
What is industrial property?
Industrial
property includes: (a) Patents (b) Utility models (c) Industrial designs (d)
Trademarks, service marks and trade names (e) Indication of source or
appellations of origin (this is same as the geographical indications adopted in
TRIPS);
What are the principal
features of the Paris Convention?
The
principal features of the Paris Convention have been listed below
National treatment
Right of priority
Independence of patents
Parallel importation
Protection against false
indications and unfair competition
1. A
new variety if it conforms to the criteria of novelty, distinctiveness,
uniformity and stability.
2. An extant variety if it conforms to
criteria of distinctiveness, uniformity and stability.
How is an “Extant Variety”
defined in PPVFR Act, 2001?
An “Extant Variety” means a
variety, which is– (i) notified under section 5 of the Seeds Act, 1966 (54 of
1966); or (ii) a farmers‟ variety; or (iii) a variety about which there is
common knowledge; or (iv) any other variety which is in the public domain.
What is the term of a
copyright?
a. If published within the life
time of the author of a literary work the term is for the life time of the
author plus 60 years.
b. For cinematography films,
records, photographs, posthumous publications, anonymous' publication, works of
government and international agencies the term is 60 years from the beginning
of the calendar year following the year in which the work was published.
c. For broadcasting the term is
25 years from the beginning of the calendar year following the year, in which
the broadcast was made.
What is the rule for the
transfer of copyright?
The owner of the copyright in
an existing work or prospective owner of the copyright in a future work may
assign to any person the copyright, either wholly or partially in the following
manner.
i. for the entire world or for
a specific country or territory; or
ii. for the full term of
copyright or part thereof ; or
iii. relating to all the rights
comprising the copyright or only part of such rights.
What are the designs not
registrable under the Act?
A design which (a) is not new
or original; or (b) has been disclosed to the public any where in India or in
any other country by publication in tangible form or by use in any other way
prior to the filing date, or where applicable, the priority date of the
application for registration; or (c) is not significantly distinguishable from
known designs or combination of known designs; or (d) comprise or contains
scandalous or obscene matter, shall not he registered.
If
anyone contravenes the copyright in a design he is liable for every offence to
pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a
maximum of Rs. 50,000/- recoverable as contract debt in respect of any one
design.
How can I find the patent
laws of various countries?
The Collection of Laws for
Electronic Access (CLEA) provides easy access to intellectual property
legislation from a wide range of countries and regions as well as to treaties
on intellectual property administered by WIPO. Many national or regional patent
Offices provide information concerning national or regional legislation on
their web sites. A list of URLs of national and regional intellectual property
offices are available.
Why are Patents necessary?
Patents
provide incentives to individuals by offering them recognition for their
creativity and Material reward for their marketable inventions. These
incentives encourage innovation, which assures that the quality of human life
is continuously enhanced.
What is a Patent?
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, or offers a new technical solution to a
problem. In order to be patentable, the invention must fulfill certain
conditions (please see the answer to the question below " what kinds of
inventions can be patented?").
What is the date of
registration?
The date of registration except
in case of priority is the actual date of filing of the application. In case of
registration of design with priority, the date of registration is the date of
making an application in the reciprocal country.
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