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THE CONCEPT of Intellectual Property
THE CONCEPT of Intellectual Property
THE CONCEPT of Intellectual Property
ABSTRACT
Intellectual Property Right is exclusive right is granted by government of India
for protection originality of work of inventor. Simple intellectual property right
is intangible creation of human mind. In this intellectual Property right includes
in Patent, Trademark, Trades crates,Industrial design,Layout design and Copyright
oriented rights.Intellectual right is important for maintaining the quality,
safety,efficacy of any Pharmaceuticalproduct and services. It is certification
authority and standard authority for certification and identification of product in
would wide market. This intellectual property right is the rights given to people
over the creation of their minds. They usually give the creator an exclusive right
over the use of his/her creations for a certain period of time. Intellectual
property refers to creations of the mind, inventions in artistic, literary,
scientific and industrial field. It is important application for Protection of
invention of inventor and maintaining the quality as well as standard of work of
inventor. the present review describes The Basic concept in IPR, Objectives in
IPR,Type of IPR (Patents, Trademarks, Copyrights And Related Rights, Geographical
Indications,
Industrial Designs, Trade Secrets, Layout Design For Integrated Circuits,
Protection of NewPlant Variety), Duration of Intellectual Property Rights, Concept
Related Patents (Types of Patent, Tangible And Intangible Property, Novelty, Non-
Obviousness, Utility, Anticipation,Prior Art, Global Perspective Of Patent System,
Role Of International Organization, IndianPatent Act 1970, Patentability, Patent
Infringement, Commercialization, Patent Licensing),Applications of IPR
INTRODUCTION
Intellectual Property Rights are legal rights, which result from intellectual
activity in industrial, scientific, literary & artistic fields. These rights
Safeguard creators and other producers of intellectual goods & services by granting
them certain time-limited rights to control their use. Protected IP rights like
other property can be a matter of trade, which can beowned, sold or bought. These
are intangible and nonexhausted consumption.
OBJECTIVES OF IPR
Intellectual property Right (IPR) is a term used for various legal entitlements
which attach to certain types of information, ideas, or other intangibles in their
expressed form.The holder of this legal entitlement is generally entitled to
exercise various exclusive rights in relation to the subject matter of the
Intellectual Property.The term intellectual property reflects the idea that this
subject matter is the product ofthe mind or the intellect, and that Intellectual
Property rights may be protected at law in the same way as any other form of
property.Intellectual property laws vary from jurisdiction to jurisdiction, such
that the acquisition,registration or enforcement of IP rights must be pursued or
obtained separately in each territory of interest
Intellectual property rights (IPR) can be defined as the rights given to people
over the
creation of their minds. They usually give the creator an exclusive right over the
use of his/her creations for a certain period of time.
TYPES OF IPR
Patents
Trademarks
Copyrights and related rights
Geographical indications
Industrial designs
Trade secrets
Layout design for integrated circuits
Protection of new plant variety
PATENTS
A patent is an exclusive right granted for an invention, which is a product or a
process that provides a new way of doing something, or offers a new technical
solution to a problem. Itprovides protection for the invention to the owner of the
patent. The protection is granted for a limited period, i.e. 20 years. Patent
protection means that the invention cannot be commercially made, used, distributed
or sold without the patent owner's consent. A patent
owner has the right to decide who may - or may not - use the patented invention for
the period in which the invention is protected. The patent owner may give
permission to, or license, other parties to use the invention on mutually agreed
terms. The owner may also sell the right to the invention to someone else, who will
then become the new owner of the patent.Once a patent expires, the protection ends,
and an invention enters the public domain, that is
the owner no longer holds exclusive rights to the invention, which becomes
available tocommercial exploitation by others. All patent owners are obliged, in
return for patent protection, to publicly disclose information on their invention
in order to enrich the total body of technical knowledge in the world. Such an
ever-increasing body of public knowledge promotes further creativity and innovation
in others. In this way, patents provide not only
protection for the owner but valuable information and inspiration for future
generations of researchers and inventors
TRADEMARKS
A trademark is a distinctive sign that identifies certain goods or services as
those produced or provided by a specific person or enterprise. It may be one or a
combination of words, letters,and numerals. They may consist of drawings, symbols,
three- dimensional signs such as the shape and packaging of goods, audible signs
such as music or vocal sounds, fragrances, or colours used as distinguishing
features. It provides protection to the owner of the mark by
ensuring the exclusive right to use it to identify goods or services, or to
authorize another to use it in return for payment. It helps consumers identify and
purchase a product or service because its nature and quality, indicated by its
unique trademark, meets their needs.Registration of trademark is prima facie proof
of its ownership giving statutory right to the proprietor. Trademark rights may be
held in perpetuity. The initial term of registration is for
10 years; thereafter it may be renewed from time to time.
GEOGRAPHICAL INDICATIONS
GI are signs used on goods that have a specific geographical origin and possess
qualities or a reputation that are due to that place of origin? Agricultural
products typically have qualities that derive from their place of production and
are influenced by specific local factors, such as climate and soil. They may also
highlight specific qualities of a product, which are due to human factors that can
be found in the place of origin of the products, such as specific manufacturing
skills and traditions. A geographical indication points to a specific place or
region of production that determines the characteristic qualities of the product
that originates therein. It is important that the product derives its qualities and
reputation from that place.
Place of origin may be a village or town, a region or a country. It is an exclusive
right given to a particular community hence the benefits of its registration are
shared by the all members of the community. Recently the GIs of goods like Chanderi
Sarees, Kullu Shawls, and Wet Grinders etc have been registered. Keeping in view
the large diversity of traditional products spread all over the country, the
registration under GI will be very important in future growthof the tribes /
communities / skilled artisans associated in developing such products.
INDUSTRIAL DESIGNS
Industrial designs refer to creative activity, which result in the ornamental or
formal appearance of a product, and design right refers to a novel or original
design that is accorded to the proprietor of a validly registered design.
Industrial designs are an element of intellectual property. Under the TRIPS
Agreement, minimum standards of protection of industrial designs have been provided
for. As a developing country, India has already amended its national legislation to
provide for these minimal standards. The essential purposeof design law it to
promote and protect the design element of industrial production. It is also
intended to promote innovative activity in the field of industries. The existing
legislation on industrial designs in India is contained in the New Designs Act,
2000 and this Act will serve its purpose well in the rapid changes in technology
and international developments. India has
also achieved a mature status in the field of industrial designs and in view of
globalization of the economy, the present legislation is aligned with the changed
technical and commercial scenario and made to conform to international trends in
design administration. This replacement Act is also aimed to enact a more detailed
classification of design to conform tothe international system and to take care of
the proliferation of design related activities in
various fields.
TRADE SECRETS
It may be confidential business information that provides an enterprise a
competitive edge may be considered a trade secret. Usually these are manufacturing
or industrial secrets and commercial secrets. These include sales methods,
distribution methods, consumer profiles,and advertising strategies, lists of
suppliers and clients, and manufacturing processes.Contrary to patents, trade
secrets are protected without registration. A trade secret can be
protected for an unlimited period of time but a substantial element of secrecy must
exist, so that, except by the use of improper means, there would be difficulty in
acquiring the information. Considering the vast availability of traditional
knowledge in the country the protection under this will be very crucial in reaping
benefits from such type of knowledge.The Trades secret, traditional knowledge are
also interlinked / associated with the
geographical indications.
1. TYPES OF PATENT
UTILITY PATENT
If you have a new, useful invention that is not obvious to others in the field of
invention,you may qualify for a utility patent. Utility patents are grouped in five
categories: aprocess, a machine, a manufacture, a composition of matter, or an
improvement of an existing idea.Often, an invention will fall into more than one of
the categories. For instance, computer software can usually be described both as a
process (the steps that it takes to make the
computer do something) and as a machine (a device that takes information from an
input device and moves it to an output device).Regardless of the number of
categories in which an invention falls, only one utility patent may be issued on
it.Among the many types of creative works that might qualify for a utility patent
are biological inventions; new chemical formulas, processes, or procedures;
computer hardware and peripherals; computer software; cosmetics;electrical
inventions; electroniccircuits; food inventions; housewares; machines; and magic
tricks. If you acquire a utility patent, you can stop others from making, using,
selling and importing the invention.A utility patent last for 20 years from the
date that the patent application is filed.
DESIGN PATENT
If you create a new and original design that ornaments a manufactured device, you
may qualify for a design patent.Design patents are granted for any new or original
Ornamental design for an article ofmanufacture. A design patent protects only the
appearance of the article and not the article itself. An inventor can easily
register both a utility patent and a design patent.A design patent is granted for
product designs—for example, an IKEA chair, Keith
Haring wallpaper, or a Manolo Blahnik shoe. You can even get a design patent for a
computer screen icon. There are strings attached to a design patent, too.
As noted, the design must be ornamental or aesthetic; it can‘t be functional. Once
you acquire a design patent, you can stop others from making, using, selling and
importing the design. You can enforce your design patent for only 14 years after
it‘s issued.
PLANT PATENT
The least-frequently issued type of patent are plant patents—granted for any
asexually or sexually reproducible plants (such as flowers) that are both novel and
nonobvious.This may include cultivating different types of plants to create mutants
or hybrids and also newly found seedlings. This patent protects the owner by
keeping other individualsor businesses from creating the type of plant or profiting
from the plant for at least 20 years from the date of the application
Tangible Property
In law is, literally, anything which can be touched, and includes both real
property (or, incivil law systems, immovable property) and personal property (or
moveable property), and stands in distinction to intangible property. In English
law and some Commonwealth legalsystems, items of tangible property are referred to
as choses in possession (or a chose in possession in the singular). However, some
property, despite being physical in nature, is classified in many legal systems as
intangible property rather than tangible property because the rights associated
with the physical item are of far greater significance than the physical
properties. Principally, these are documentary intangibles. For example, a
promissory note isa piece of paper that can be touched, but the real significance
is not the physical paper, but the legal rights which the paper confers, and hence
the promissory note is defined by the legal
debt rather than the physical attributes. A unique category of property is money,
which in some legal systems is treated as tangible property and in others as
intangible property. Whilst most countries legal tender is expressed in the form of
intangible property ("The Treasury of Country X hereby promises to pay to the
bearer on demand...."), in practice bank notes are now rarely ever redeemed in any
country, which has led to bank notes and coins being
classified as tangible property in most modern legal systems. Tangible property
consists ofreal property and personal property. Real property is property that does
not move, such asland and the things that are attached to or built on that land.
Personal property is property thatcan be moved or any other tangible property that
can be owned. Personal property is alsocalled chattels. Chattels that are attached
to the land and that cannot be removed without
damaging the land are called fixtures. Examples of fixtures are built-in bookcases
and ceiling
fans.
Intangible Property
Intangible property consists of property that lacks a physical existence. Examples
of intangible property include checking and savings accounts, options to buy or
sell shares of stock, the goodwill of a business, a patent, and spousal love and
affection. Also known as incorporeal property, describes something which a person
or corporation can have ownership of and can transfer ownership of to another
person or corporation, but has no physical substance. It generally refers to
statutory creations such as copyright, trademarks, or patents.It excludes tangible
property like real property (land, buildings and fixtures) and personal property
(ships, automobiles, tools, etc.). In some jurisdictions intangible property are
referred to as choses in action. Intangible property is used in distinction to
tangible property.It is useful to note that there are two forms of intangible
property - legal intangible property (which is discussed here) and competitive
intangible property (which is the source from which legal intangible property is
created but cannot be owned, extinguished, or transferred).Competitive intangible
property disobeys the intellectual property test of voluntary
extinguishment and therefore results in the sources that create intellectual
property(knowledge in its source form, collaboration, process-engagement, etc)
escaping quantification. Generally, ownership of intangible property gives the
owner a set of legally enforceable rights over reproduction of personal property
containing certain content. Forexample, a copyright owner can control the
reproduction of the work forming the copyright.However, the intangible property
forms a set of rights separate from the tangible property thatcarries the rights.
For example, the owner of a copyright can control the printing of bookscontaining
the content, but the book itself is personal property which can be bought and sold
without concern over the rights of the copyright holder. In English law and other
Commonwealth legal systems, intangible property is traditionally divided in pure
intangibles(such as debts, intellectual property rights and goodwill) and
documentary intangibles, which obtain their character through the medium of a
document (such as a bill of lading, promissory
note or bill of exchange). The recent rise of electronic documents has blurred the
distinction between pure intangibles and documentary intangibles.
Rationales
A patent grants an inventor a legally enforceable monopoly over their invention.
This means that others can be legally restrained from exploiting the invention. It
is not the intention of the patent system to deny anyone what they have been free
to do before someone claims an invention. For example, one cannot patent the wheel,
as that would exclude others from doing what they had previously been free to do.
The legal test is that the invention must be
something new, i.e. it must possess ―novelty‖. The invention of the wheel is not
new, because the wheel already forms part of the prior art.
7. PRIOR ART (State of the art or Background art) (Non Patentable Data)
Prior art (state of the art or background art), in most systems of patent law,
constitutes all information that has been made available to the public in any form
before a given date that might be relevant to a patent's claims of originality. If
an invention has been described in the prior art, a patent on that invention is not
valid. Information kept secret, for instance, asa trade secret, is not usually
prior art, provided that employees and others with access to the information are
under a non-disclosure obligation. With such an obligation, the information
istypically not regarded as prior art. Therefore, a patent may be granted on an
invention, although someone else already knew of the invention. A person who used
an invention in secret may in some jurisdictions be able to claim "prior user
rights" and thereby gain the right to continue using the invention. As a special
exception, earlier-filed and unpublished patent
applications do qualify as prior art as of their filing date in certain
circumstances. To anticipate the subject-matter of a patent claim, prior art is
generally expected to provide a description sufficient to inform an average worker
in the field (or the person skilled in the art)
of some subject matter falling within the scope of the claim. Prior art must be
available in some way to the public, and in many countries, the information needs
to be recorded in a fixed form somehow. Prior art generally does not include
unpublished work or mere conversations (though according to the European Patent
Convention, oral disclosures alsoform prior art—Patents disclose to society how an
invention is practiced, in return for the
TRIPS
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is in
the news now because of the recent US decision to support the temporary waiver of
patent rules for the coronavirus vaccines. This is an important topic from multiple
perspectives for the UPSC exam including economy, international relations, current
affairs, etc.
TRIPS Agreement
Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on
international IP rights.
TRIPS came into force in 1995, as part of the agreement that established the World
Trade Organisation (WTO).
TRIPS establishes minimum standards for the availability, scope, and use of seven
forms of intellectual property namely, trademarks, copyrights, geographical
indications, patents, industrial designs, layout designs for integrated circuits,
and undisclosed information or trade secrets.
It applies basic international trade principles regarding intellectual property to
member states.
It is applicable to all WTO members.
TRIPS Agreement lays down the permissible exceptions and limitations for balancing
the interests of intellectual property with the interests of public health and
economic development.
TRIPS is the most comprehensive international agreement on IP and it has a major
role in enabling trade in creativity and knowledge, in resolving trade disputes
over intellectual property, and in assuring WTO members the latitude to achieve
their domestic policy objectives.
It frames the IP system in terms of innovation, technology transfer and public
welfare.
The TRIPS Council is responsible for administering and monitoring the operation of
the TRIPS Agreement.
TRIPS was negotiated during the Uruguay Round of the General Agreement on Tariffs
and Trade (GATT) in 1986–1994.
The TRIPS Agreement is also described as a “Berne and Paris-plus” Agreement
Strategic Goals
Balanced Evolution of the International Normative Framework for IP.
Provision of Premier Global IP Services.
Facilitating the Use of IP for Development.
Coordination and Development of Global IP Infrastructure.
World Reference Source for IP Information and Analysis.
International Cooperation on Building Respect for IP.
Addressing IP in Relation to Global Policy Issues.
A Responsive Communications Interface between WIPO, its Member States and All
Stakeholders.
An Efficient Administrative and Financial Support Structure to Enable WIPO to
Deliver
its Programs.
Core Tasks of WIPO
Developing international IP laws and standards.
Delivering global IP protection services.
Encouraging the use of IP for economic development.
Promoting a better understanding of IP.
Providing a forum for debate.
Functions of WIPO
Harmonize national intellectual property legislation and procedures.
Provide services for international applications for industrial property rights.
Exchange intellectual property information.
Provide legal and technical assistance to developing and other countries.
Facilitate the resolution of private intellectual property disputes.
Marshal information technology as a tool for storing, accessing, and using
valuable
intellectual property information