General

Intellectual Property Rights (IPR)

1.1 Introduction:

Introduction Intellectual Property Rights (IPR) are awarded by the society to individuals or organizations principally over creative works used in commerce and are governed by the public policy objectives including developmental and technological objectives. In the next few decades, intellectual property would play a key role in the development process. The Government of India has taken various steps to bring about changes in the administration of intellectual property rights in line with the commitments made in international treaties and agreements, particularly, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). These changes give rise to a set of issues, specially with regard to understanding of IPR by functionaries in various sectors of economy including R&D, trade, industry, administration, and governance within which the IPR system is required to operate. R&D institutions create technological innovations and play a significant role in the process of development. The need for awareness about IPR among R&D institutions in universities, government, and industry is thus essential.

The role of publicly-funded research and development organizations like CSIR is changing in the wake of economic liberalization. CSIR is one of the premier R&D organizations in the country, which is increasingly called upon to compete in the domestic and international market by enhancing R&D intensity of products and processes in the industrial sector. In 1995, it enunciated a new mission to provide scientific industrial R&D that maximized the economic (industrial), environmental and social benefits for the people of India. The emphasis was laid on imparting value addition by enhancing the role of intellectual property, particularly, patenting in CSIR.

R&D scientists in CSIR are the key players in technology development, who generate technical information, which is exchanged or shared during the process of research, published in research journals or exploited commercially through new products, processes, devices or know – how. In doing so, they require several types of information including IPR information, for example, relating to patents for effectively carrying out research. There is no study in the literature that has examined the IPR information for R&D scientists, in general, and CSIR, in particular. CSIR has, therefore, been chosen for the present investigations of IPR information for R&D scientists.

1.2 Intellectual property:

In principle, the intellectual property is defined as a “product of the mind”. It is similar to the property consisting of movable or immovable things like a house or a car, wherein the proprietor or owner might use his property as he wishes and nobody else can lawfully use his property without his permission. The Convention establishing the World Intellectual Property Organization (WIPO) in 1967, one of the specialised agencies of the United Nations System defined the “intellectual property” to include rights relating to:

  • literary, artistic, and scientific works,
  • performance of performing artists, phonograms and broadcasts,
  • inventions in all fields of human endeavour,
  • scientific discoveries,
  • industrial designs,
  • trademarks, service marks and commercial names and designations, and
  • protection against unfair competition and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The main elements of intellectual property, thus, include patent, copyright, trademark, industrial design, geographical indication, layout design (topographies) of integrated circuit, protection of undisclosed information and the control of anti-competitive practices. There are no national laws or international treaties yet that gave property rights to scientific discoveries.

The central objective of intellectual property rights protection is to encourage creative, inventive and innovative activity resulting from the process of research and development. By providing exclusive rights for a limited period, the intellectual property system ensures the legal security to scientific and technological institutions that wish to avail of the possibility to encourage, through material resources and necessary funding, their scientists in using their skills in research and development of new ideas. An inventor will be encouraged to share his invention with the society if he is assured that his rights are protected.

The main elements of intellectual property are defined below:

1.2.1 Patent: The patent relates to creations borne out of inventions, which are solutions to technical problems. A patent is a government granted and secured legal right to prevent others from ‘practicing’ i.e. making, using, selling or importing the inventions covered by the patent. An invention is patentable if it is new, involves an inventive step, i.e. it is not obvious in the sense that it will not occur to any specialist, if such a specialist was asked to find a solution to the particular problem, and is industrially applicable in the sense that it can be industrially manufactured and used. Examples are a new ballpoint pen or a new drug molecule or a new fire-fighting device. The term of a patent is generally twenty years. In specific cases of food, drugs and pharmaceuticals, it is presently seven years in India.

1.2.2 Trademark: A trademark is an identification symbol, which is used in the course of trade to enable the purchasing public to distinguish one trader’s goods from the similar goods of other traders. The public make use of trademarks in order to choose whose goods they can purchase. If they are satisfied with the purchase they can simply repeat their order by using the trademark. In order to be eligible for protection a mark is to be distinctive of the proprietor so as to identify the proprietor’s good, for example, KODAK for photographic films or COMPAQ for personal computers. Where a trademark is used in connection with services, it may be called ‘service mark’. For example, service marks are used by hotels, airlines or travel agencies. The registration for a mark is for ten years and is renewable from time to time.

1.2.3 Design: The expression ‘Design’ means only the features of shape, configuration, pattern or ornament applied to any article 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. The design means the features applied to an article and not the article itself. The features are conceived in the author’s intellect who give those ideas conceived by him a material (visual) form as a pictorial illustration, or as a specimen, prototype, or model. By registration under the Act, the features are protected as design. The protection is given for independently created industrial designs that are new or original, for example, the distinctive shape of a coke bottle or a pen or a textile design. The protection of design is for a maximum period of fifteen years.

1.2.4 Know-how / undisclosed information: Know-how is the confidential information that may be in the form of an aggregation of known processes/procedures, an accumulation of data, a secret formulation, or a combination of any of these. Know-how is often transferred together with licensing of patents and under transfer of technology arrangements. Individuals should be able to prevent information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices.

1.2.5 Geographical indication: A geographical indication is an indication that identifies a good as originating in a territory where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin. The geographical indication may be simple and need not be associated with any obligation other than of production in a specified area, e.g. Darjeeling tea, French wine, Basmati rice, etc. It prevents unauthorized persons from using the protected geographical indication for products not from that region or from misleading the public as to the true origin of the product. The geographical indication the use of which is likely to deceive or cause confusion or contrary to law cannot be registered. The term of protection is for ten years, which may be renewed from time to time for an unlimited period.

1.2.6 Layout design in integrated circuit: Large-scale integration of a number of electrical functions in a very small component becomes possible due to advances in semi-conductor technology. Integrated circuits are creations of human mind. There is a need for the creation of new layout designs, which reduce the dimensions of existing integrated circuits as also increase their functions. The protection is given for designs that are original, not commercially exploited in India or any convention country and is inherently distinctive. The law prohibits reproducing, importing, selling or otherwise distribution for commercial purposes of a protected layout design or an integrated circuit in which a protected layout design was incorporated or an article incorporating such an integrated circuit only insofar as it continues to contain an unlawfully reproduced layout design. The term of protection is ten years.

1.2.7 Copyright: The copyright protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright is creativity in the choice and arrangement of words, musical notes, colours, shapes etc. only for original works. The copyright protects the exclusive rights to authorize others to use the protected works e.g. reproduction, performing, recording, broadcasting, and translation. The copyright subsists in a work for lifetime of the authors plus 60 years. The examples for protection include books, research publications, pamphlets, lectures, dramatic or musical works, cinematographic works, paintings, photographic works, works of applied arts, and maps. The computer programs and databases are also protected under copyright.

1.2.8 Unfair competition: In the context of industrial property protection, acts of unfair competition are those that create confusion with the goods or the industrial or commercial activities of a competitor, false allegations in the course of trade that discredit the goods or the industrial or commercial activities of a competitor, or yet, indications or aggregations, the use of which in trade is likely to mislead the public as to the characteristics of the goods. The law prohibits such acts.

1.2.9 Protection of plant varieties:
There is another kind of intellectual property in the development of new plant variety that is protected under Plant breeders’ rights (PBRs) as a sui generis system. PBRs are granted to breeders of new, distinct, uniform and stable plant varieties. The novelty is not essential for the protection of an extant or farmer’s variety. The farmers are entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under the act in the same manner as he was entitled before except that he cannot sell branded seed of such registered variety. The law normally offer protection for at least fifteen years.


Original Research Article:

  • Gupta, V. K. (2003). Intellectural property rights _IPR_ information for R and D scientists in CSIR.
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Md. Ashikuzzaman

Work at North South University Library, Bangladesh.

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