Intellectual property rights

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Contents Copyright. Trademark . Geographical indications . Trade secrets. Patents. 2

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Property Trade Intellectual Land & Building Gold & Cash 3

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COPYRIGHT I have an innovation ...How do I protect it in the market ??? PATENTS TRADEMARK 4

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Copyright protects literary, artistic and musical creations. Trademark protects against imitations of the products as long as they are in trade. Geographical indication: Quality and reputation of products are attributable to geographical origin. Trade Secrets cover the confidential Information. Patents protect the technological invention. 5

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Copyright 6


Copyright Copyright protects literary and artistic works. Broadcast Musical works Artistic works Sound recording Types of Copyright Films Literary Works 7

Rights covered under Copyright:

Rights covered under Copyright Rights of translation. Rights of performance. Rights of reproduction. Motion pictures rights. Broadcasting rights. These rights can be transferred, assigned, licensed for economic benefits. 8

Duration of Protection:

Duration of Protection For books and other works of arts it is 50 to 70 years after the death of the author (the laws of different countries vary). For photographic work 25 years from making the work. For cinematic works 50 years after making the work available to public. 9

Exceptions to Protection (Free Use or Fair Deal):

Exceptions to Protection (Free Use or Fair Deal) Illustration for Teaching; Current News Reporting etc. Free Use is decided by amount of work used and its economic implications to the right holder. The mention of original author/source is must. 10

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11 Amir Khan and Chetan Bhagat Controversy

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Forms of TM:

Forms of TM Visual: Words, devices including drawings and symbols or 2-D representations of object or a combination of two or more of these, colour combinations, 3-D sign as shape of goods or packaging. Audio: Sounds, Musical Notes 13


Trademark A trademark is a brand or a part of brand that give legal protection because it is capable of exclusive appropriation . A trademark protects the sellers rights to use the brand name and / or brand mark. TM is an exclusive mark intended to differentiate the product of one seller with others. 14

Importance of Trade Mark Registration:

Importance of Trade Mark Registration Exclusive Rights - Registered trade marks owners have exclusive right to use their marks in trading.  They also have the rights to take legal action for infringement under the Trade Mark Law against others who use their marks without consent. Legal Evidence - Registration certificate issued by Registrar Office is a prime evidence of trade mark ownership.  A certificate of registration serves as an important document to establish the ownership of goods exported to other countries. 15

International registration of trademarks:

International registration of trademarks This system is governed by two treaties, the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol . 16

Duration of registration:

Duration of registration Trade mark registration is valid for ten years from the date of application and may be renewed every ten years. 17

Pharmaceutical Trademarks:

Pharmaceutical Trademarks 18

Similar Getup:

Similar Getup Beauty Cosmetics Vs. Kamill Cosmetics Court granted an injunction restraining Kamill Cosmetics from selling Shampoo with a label similar to Nyle Shampoo although the marks Nyle and Kamill are completely different. 19

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TM: Pharma Examples:

TM: Pharma Examples Diclomol (Win Medicare.Plantiff ) and Dicamol ( Dua Pharmaceutical Ltd. Defendent ) OTC, Illiterate Customer. So restrained the use of trademark. Flavedon ( Biofarma ) and Trivedon (Sanjay Pharma ) Sch.H prescription drug for heart disease. Court held : Two drugs can’t be considered to be deceptively similar 21

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What is GI?:

What is GI? Many goods possess their peculiar properties due to their geographical origin. GI is the best method to indicate the geographical origin of goods and services. Many agricultural products (tea, rice); dairy products (cheese), wines and spirits (Champagne) owe their special quality and reputation to their geographical place of growth or processing. 23

Protection of GI:

Protection of GI GI is not owned by a single owner Any producer in the region can use the GI on the product provided it is prepared by the norms set out for the use of that GI. GI is registered in the national register and is similar to the certification mark identifying the origin of the good. Govt. can register GI in the international register maintained by WIPO for world wide protection. It is an offence to use false GI on goods. 24

Trade Secret:

Trade Secret The best kept secret till last month Since 1886 25

Trade Secrets:

Trade Secrets Some inventions, data, information cannot be protected by any of the available means of IPRs. Such information is held confidential as a trade secret. Trade secret can be an invention, idea, survey method, manufacturing process, experiment results, recipe, financial strategy, client database etc. 26

When Trade Secrets are preferred? :

When Trade Secrets are preferred? When invention is not patentable. Patent protection is limited to 20 years, when secret can be kept beyond that period. 27

How to guard Trade Secret?:

How to guard Trade Secret? Restricting number of people having access to secret information Signing confidentiality agreements with business partners and employees Using protective techniques like digital data security tools and restricting entry into area where trade secret is worked or held National legislations provide protection in form of injunction and damages if secret information is illegally acquired or used. 28


Patent An exclusive (monopoly) right granted by the Govt To an inventor to make, use, manufacture and market the invention For a limited period of time. 29

Patent Right :

Patent Right Making Selling Using Importing To Exclude Others Negative Right 30

Patent history in india:

Patent history in india 1856 certain exclusive privileges granted to inventors of new products for a period of 14 years. 1859 patent monopolies called exclusive privileges (making. Selling and using inventions in india and authorizing others to do so for 14 years from date of filing specification). 1872 the patents & designs protection act. 1883 the protection of inventions act. 1888 consolidated as the inventions & designs act. 31


Continued…. 1911 the indian patents & designs act. 1972 the patents act came into force on 20 th april 1972. 1994 on march 26, 1994 patents (amendment) act, (1994) came into force from 01-01-1995. 2002 the patents (amendment) act 2002 came into force from 20th may 2003 2005 THE PATENTS (AMENDMENT) ACT 2005 EFFECTIVE FROM 1st JANUARY 2005 32

Patentable Inventions: Criteria:

Patentable Inventions: Criteria Novelty (New) Non-obviousness (Inventive) Usefulness (Industrial/Commercial applicability) 33

Non-patentable Inventions:

Non-patentable Inventions Contrary to public order or morality or which causes serious harm to human, animal or plant life or health or to the environment. The mere discovery of a scientific principle or the formulation of an abstract theory (or discovery of any living thing or non-living substances occurring in nature). The mere discovery of a new form of a known substance which does not result in the enhancement. 34


Continued…. A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. Plants and animals in whole or any part thereof other than micro-organisms A literary, dramatic, musical or artistic work or any other aesthetic creation. Duplication of traditional knowledge . Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment. 35

Who can apply for the patent?:

Who can apply for the patent? An inventor Person/company legally assigned by the inventor Legal representative of any inventor Either alone or jointly by above persons 36

Patent Infringement:

Patent Infringement Making, using, or selling a patented invention (Product or Process) without permission from the patent owner is INFRINGEMENT. Infringement suit can be filed only after patent is issued (granted) Relief includes fine or account of profit Use for research purpose is not act of Infringement 37

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38 Contents of patent Title Abstract Field Of The Invention Background Of The Invention Summary Of The Invention Detailed Description Claims

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First Patent In United States 39

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Gather information on invention Patentability Search File Provisional Application Within 1 yr. file Complete specifications Final Rejection opposition Examiner Issues Office Action Advises serial number and filing date (File wrapper) Patent issues examiner conducts patentability search Publication of Application shortly after 18=24 m from the date of earliest filing Pay Maintenance Fees at 3years , yearly thereafter Rejection of opposition Process of filing a patent 40

PCT filing:

41 PCT filing First Application (Provisional application/First Filing) 0 month (priority date) Filing of international Application (PCT application/PCT Filing) 12 month (Filing date) Publication International search report (ISR) Before 16 month Chapter I National phase entry Before 30 month International Preliminary Examination (PCT Demand) Before 19 month Publication of International Preliminary Examination Report (IPER) Before 28 month Chapter II National phase entry Before 30 month Applicant selects amongst the designated countries those are of interest

International Agreements:

International Agreements Paris convention for the protection of Industrial Property (1883) The Patent Cooperation Treaty (PCT) 42

Paris convention for the protection of Industrial Property (1883) A Diplomatic Conference was convened in Paris in 1883, which ended with final approval and signature of the Paris Convention for the Protection of Industrial Property. Signed by 11 nations: Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and Switzerland.(1884) Great Britain, Tunisia, El Salvador, Guatemala and Ecuador joined later.:

Paris convention for the protection of Industrial Property (1883) A Diplomatic Conference was convened in Paris in 1883, which ended with final approval and signature of the Paris Convention for the Protection of Industrial Property. Signed by 11 nations: Belgium, Brazil, El Salvador, France, Guatemala, Italy, the Netherlands, Portugal, Serbia, Spain and Switzerland.(1884) Great Britain, Tunisia, El Salvador, Guatemala and Ecuador joined later. 43


Continued… The provisions of the Paris Convention may be subdivided into four main categories: first category contains rules of substantive law which guarantee a basic right known as the right to national treatment in each of the member countries. second category establishes another basic right known as the right of priority. third category defines a certain number of common rules in the field of substantive law which contain either rules establishing rights and obligations. fourth category deals with the administrative framework. 44

The Patent Cooperation Treaty (PCT) :

The Patent Cooperation Treaty (PCT) In order to overcome some of the problems involved in the national system, in September 1966, the Executive Committee of the International (Paris) Union for the Protection of Industrial Property invited BIRPI (the predecessor of WIPO) to undertake urgently a study of solutions to reduce the duplication of the effort both for applicants and national Patent Offices. In the following years, a number of BIRPI meetings prepared drafts and a Diplomatic Conference held in Washington, D.C., in June 1970 adopted a treaty called the Patent Cooperation Treaty. The Patent Cooperation Treaty or “PCT” entered into force on January 24, 1978, and became operational on June 1, 1978, with an initial 18 Contracting States. 45

Trilateral Cooperation between Japan, U.S. and Europe:

Trilateral Cooperation between Japan, U.S. and Europe 46

Turmeric patent:

Turmeric patent In 1995 a patent was granted in USA for use of turmeric in connection with healing of surgical wounds and gastric ulcers. In 1997 USPTO revoked this patent on the ground that use of turmeric in treatment of wounds was part of traditional Indian medical knowledge . 47

Neem Patent:

Neem Patent Neem tree has multiple uses having medicinal value, food, pesticide, cosmetic. More than 500 million Indians use Neem sticks to brush the teeth. 2000 years old Indian texts describe the several properties of neem . In spite of this dozens of patents were filed on neem in USA and Europe. 48

Neem Patent:

Neem Patent In Europe a patent owned by W.R.Grace & Co,for fungicidal effects of neem oil was revoked on the ground of prior art and that it lacked inventive step. In USA a patent for stable neem formulation obtained by same W.R.Grace & Co. was protected. 49

Astrazeneca Vs Mylan Omeprazole Patent Litigation:

Astrazeneca Vs Mylan Omeprazole Patent Litigation Omeprazole was difficult to formulate because it is acid-labile. Astra scientists developed a formulation that protects omeprazole from degradation in the acidic environment of the stomach. Astra's formulation, which is claimed in the U.S. Patent, includes a core containing omeprazole and an alkaline reacting compound ("ARC"), a water soluble subcoat , and an outer enteric coating. Core: Omeprazole + ARC Subcoat : Water Soluble Outer Enteric coating Astrazeneca’s Technology 50

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Inert Core: sugar/starch sphere Active Coating: Omeprazole + talc + HPMC Two Sub coatings Mylan’s Technology Mylan's product consists of an inert sugar/starch sphere; an active coating of omeprazole , talc and HPMC; two subcoatings ; and an enteric coating. An Enteric coating 51

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Astra’s Argument: Astra argued that the talc in Mylan's formulation contains carbonates, which serve as an ARC. Decision By Court In court Astra failed to prove the presence of carbonates in Mylan's product. The court also determined that talc cannot satisfy the ARC limitation. Therefore no infringement. 52

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Generic Drug Industry: Success Rate of cases 2010 53

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Paid sites (STN) Free sites Patent search sites 54

Around the world…:

Around the world… Chinese firms get 1,69,000 patents in 2010. Growth of 13.3%. MNC’s coming to India to settle copyright cases. African traditional knowledge and folkfore given IP protection. India foils Chinese bid patent on ‘ pudina ’ and ‘ kalmegha ’ on treatment of H5N1. US trademark for ‘ bhang ‘ laced chocolates. IBM tops globally for getting patents. Secures 4,154 patents in 2010 in US. 55

Emerging Issues in IPR:

Emerging Issues in IPR Traditional Knowledge and Expression of Culture (Folklore) Biodiversity and Genetic Resources Electronic Commerce; Internet Domain Names; Protection of databases, software 56


References Farooq Ahmad Mir, Farutal Ain , “Legal protection of geographical indications in India”, Journal of Intellectual Property Rights, vol.15, May 2010, : 220 -227. Arathi Ashok, “Economic rights of authors under copyright law”, Journal of Intellectual Property Rights, vol.15, January 2010, “IPR NEWS”, Journal of Intellectual Property Rights, vol.15, November 2010, Liudmila Mori Mortinez , “Patent Licencing : Global Perspective and analysis of case studies”, Journal of Intellectual Property Rights, vol.15, November 2010, 57


Continued… Raadhika Gupta, “ Compulsory licencing under TRIPS: how fair it addresses public health concernsin developing nations”, Journal of Intellectual Property Rights, vol.15, September 2010, : 357-363. “IPR NEWS”, Journal of Intellectual Property Rights, vol.15, September 2010, www, 58

Those are my thoughts. What are yours? :

Those are my thoughts. What are yours? 59

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