IPR AND PATENTS

INTELLECTUAL PROPERTY RIGHTS (IPR) and PATENTS MOHAMMAD YUNOOS, M.Pharm., (Ph D) ASSISTANT PROFESSOR NIMRA COLLEGE OF PHARMACY VIJAYAWADA: 

INTELLECTUAL PROPERTY RIGHTS (IPR) and PATENTS MOHAMMAD YUNOOS , M.Pharm., (Ph D) ASSISTANT PROFESSOR NIMRA COLLEGE OF PHARMACY VIJAYAWADA 1

INTELLECTUAL PROPERTY RIGHTS (IPR): 

INTELLECTUAL PROPERTY RIGHTS (IPR) Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields and which establishes minimum standards of protection. These rights grant certain time-limited rights to control their use which can be owned, sold or bought. TYPES OF IPRs: a. Patents. b. Trademarks. c. Copyrights and related rights. d. Geographical Indications. e. Industrial Designs. f. Trade Secrets. 2

TYPES OF IPRs: 

TYPES OF IPRs 1.Patent It 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. Patent is an exclusive right granted by a country to the inventor to make, use, manufacture and market the invention that satisfies the conditions of novelty, innovativeness and usefulness . Patent protection period-20 years. Patents Act 1970 and Patents (Amendment) Act 2005. 3

TYPES OF IPRs: 

TYPES OF IPRs 2. Trademarks: Trademark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. A trademark (popularly known as “Brand name”) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one who is undertaking on goods or services Combination of words, letters, and numerals. Drawings, symbols, three-dimensional signs such as the shape and packaging of goods, audible signs such as music or vocal sounds, fragrances, or colours. 4

TYPES OF IPRs: 

TYPES OF IPRs Trade Marks Act 1999 was passed on 30 th December 1999 and came into force on 15 th September 2003. Registration of trademarks for services or goods - 7 yrs to 10 yrs . It helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs. Symbol ® is used to represent the registered trademark in India. Symbol ™ is used to represent the application condition of TM. 5

TYPES OF IPRs: 

TYPES OF IPRs 3.Copyrights and related rights: It is a legal term describing rights given to creators for their original literary and artistic works. Cinematographic films including sound track and video films and recordings on discs, tapes, perforated roll or other devices are covered by copyrights. Literary works: Novels, poems, plays, reference works, newspapers and computer programs, databases, films, musical compositions and choreography. . 6

TYPES OF IPRs: 

TYPES OF IPRs Artistic works: Paintings, drawings, photographs and sculpture; architecture and advertisements, maps and technical drawings. Copyright Act 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized use. Copyright lasts for 60 years . Original literary, dramatic, musical and artistic –Author’s life + 60 years Cinematograph films, sound recordings, photographs – 60 years Copyright Act 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999 with the amendment of 1994 . Broadcasting - 25 years 7

TYPES OF IPRs: 

TYPES OF IPRs 4. Geographical Indications (GI): They 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. Geographical Indication (GI) signifies to the name or sign, used in reference to the products which are corresponding to the particular geographical area or somewhat related to the origin like town, region or nation Geographical indication relates to a specific place or region of production that determines the characteristic qualities of the product that originates therein. Ex, Kullu Shawls, Darjeeling Tea, Kanchipuram Silk Saree Geographical Indications of Goods (Registration and Protection) Act 1999 came into force with effect from 15 th September 2003. Valid period for GI is 10 years. 8

TYPES OF IPRs: 

TYPES OF IPRs 5.Industrial Designs: It refers to a creative activity, which result in the ornamental or formal appearance of a product. To promote and protect the design element of industrial production. To promote innovative activity in the field of industries. Designs Act 2000 is to promote and protect the design element of industrial production. Duration of the registration of a design -10 years 9

TYPES OF IPRs: 

TYPES OF IPRs 6.Trade Secrets: It may be confidential business information that provides an enterprise a competitive edge. These are manufacturing or industrial secrets and commercial secrets. Ex: Sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes. Trade secret can be protected for an unlimited period of time. 10

patent: 

INTRODUCTION: The TRIPS Agreement requires Members of countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability. A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Indian Patent Act 1970 Term of the patent will be 20 years from the date of filing for all types of inventions. patent 11

patent: 

patent Inventive (Non-obvious): Invention means a new product or process involving an inventive step and capable of industrial application. Novelty: An invention will be considered novel if it does not form a part of the global state of the art. Usefulness: An invention must possess utility for the grant of patent. 12

patent: 

Meaning of patent : Patent is ground in favour of the inventor conferring on him the right to use his invention to the exclusive of all others. If the investor cannot use or work the invention by himself, he can grant licences to other to work the invention for consideration or for fees which is called Royalty. Granting a patent is a privilege of making, manufacturing, selling or using the invention and also a right to authorise other to do so. Those who infringe the patent are liable to compensate the inventor by paying damages ascertained in terms of the loss suffered by the investor or the profits gained by the infringer and not both. Invention becomes the property of the inventor when it is patented. patent 13

patent: 

Purpose of the patent system: To encourage research and promote the inventive genius. To Secure investors awards for inventing useful inventions. To give protection to inventors by conferring them a monopoly from commercial exploiting their inventions. To induce industries to undertake research and development. To maintain a flow of inventions, one invention leading to another . Increasing both qualitatively and quantitatively, the production potential in the country, by creating new processes and new methods in production of goods and services. patent 14

patent: 

patent Purpose of the patent system: To add the industrial growth of the country and improve the quality of life of the people. To generate and promote scientific temper. To encourage scientific research and industrial progress. Protection of invention against pilferage, imitation and infringement. 15

patent: 

Types of patents: 1) Ordinary patent a) Product patent and process patent and b) Patent of addition for improvement and modification 2) Combination patent 3) Selection patent 4) Convention patent and 5) Pipeline patent or sealed box patent. patent 16

patent: 

1) Ordinary patent: A) Product patent and process patent: Product patent: Invention relates to the manufacture of machine, article or substance which is new, novel and useful. Process patent: new, novel and useful process a new better cheaper multi-active article or substance is made available. (B) Patent of addition: It is granted to the applicant who was granted already a patent or whose application for patent is pending. Such patent may be for improvement over the original patent or may be a modification of the invention. The patent of addition can not be sealed unless the original patent is sealed. patent 17

patent: 

2) Combination patent: When known patents placed together by an inventive step into a working interrelationship producing a new article or a better or cheaper article, then there is a patentable combination. 3) Selection Patent: When the selected members chosen out of patented substance and they are selected for their special characteristic and the inventive step results in a new substance, the patent that will be granted is selection patent. patent 18

patent: 

patent 4) Convention patent: The application made in accordance with the said notification by any national of a convention country in India for patent or for a licence for an Indian patent either by himself or in association with Indian citizens, is called convention application. 5) Sealed Box Patent: The application for the patent is kept in a sealed-box for a period of time and granted or refused a patent after the expiry of the period and the application in the meanwhile is granted Exclusive Marketing Rights to sell product in India, this patent is called sealed-box patent. 19

patent: 

Non patentable inventions : An invention may satisfy the conditions of novelty, inventiveness and usefulness but it may not qualify for a patent under the following situations: An invention which is frivolous. An invention intended to be used contrary to law or morality or injurious to public health. The discovery of a scientific principal. The discovery of a new form of a known substance which does not result in enhancement of the known efficacy of that substance or use of a known substance or the use of a known process. patent 20

patent: 

Non patentable inventions : A substance obtained by admixture. The arrangement or rearrangement or duplication of features of known devices each functioning independently of one another in a known way. A method of agriculture or horticulture. Any process for medical, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings, or any process for a similar treatment of animals. Inventions relating to atomic energy Discovery of any living thing or non-living substance occurring in nature. patent 21

patent: 

Application of patent : Person claiming to be the true and first inventor of the invention. The assignee of the person claiming to be the true and first inventor in respect of the right to make such application. The legal representative of the deceased person who immediately before his death was entitled to make such application can make an application for patent. Joint Application: If the application is made by the joint inventors, the patent is granted in their names jointly. If the application is made by the assignee of the inventor, the patent is granted in the namely of the assignee, as the assignee of the inventor. The inventor and his assignee can make joint application. The legal representative of the inventor along with the assignee or the licensee can make joint application. Application by firm , company, Association and co- operative society Application by foreigner. Application by India citizen. patent 22

patent: 

Procedure for filing a patent application: The application shall be in the appropriate prescribed form only. Separate forms are prescribed for filing the application by the true and first inventor, and for the assignee or legal representative of the inventor. The application and all its enclosures shall be filed in triplicate. The fees shall be paid along with application. Application shall be sent by the Registered post acknowledgement due. The application shall be either in English or in Hindi. Contents of a complete specification would include the following: 1. Title of the invention. 2. Field to which the invention belongs . 3. Background of the invention including prior art giving drawbacks of the known inventions & practices. 4. Complete description of the invention along with experimental results. 5. Drawings etc. essential for understanding the invention. 6.Claims, which are statements, related to the invention on which legal proprietorship is being sought. Therefore the claims have to be drafted very carefully. patent 23

patent: 

Procedure for writing a patent: The applicant is required to sign in full. All the documents and all the copies required to be filed should be properly attested by the authority competent. The seal of the attesting officer is put on all the pages. The Plans, design etc. which are required to be filed are drawn in paper of quality as may be prescribed and shall be in accordance with scale and size. patent 24

patent: 

Every application is required to specify that the applicant is in possession of the invention and shall also state the name and address of the first and true inventor. A patent application must be accompanied by the following documents: (a) Provisional or Complete Specification in Form and drawings if any. (b) Statement and Undertaking filing details (c) Declaration as to inventor ship (d) Priority document (in case of convention application) (e) Power of Attorney, if application is made through a patent agent and (f) Proof of right if the application is made by the assignee. The fee for filing the application (Rs. 1000/- for natural person and Rs. 4000/- for other than natural person) can be paid within one month of filing and the proof of right can be filed within three months of the application. Further, the cost is also depended on the number of claims, priority dates and the number of pages of the complete specification. patent 0

Patent Hierarchy of Officers in Patent Office: 

Patent Hierarchy of Officers in Patent Office 1

patent: 

Procedure for obtaining a patent : The procedure involves the following formalities to be completed by the applicant: A) Submission of Application. B) Examination of Application. C) Acceptance of complete specification. D) Granting and sealing of patent. E) Opposition of grant of patent. A ) First stage- office objections: Examine the application by the office of the controller. The controller will issue a direction that the application be kept pending for 12 months from the date of receipt of application. Applicant shall file the complete specification and this time is intended to enable the applicant to re-examine his invention, check and recheck the result, improve upon the invention and explore the possibilities, its usefulness and marketability. patent 2

patent: 

B) Second Stage: Examination by Examiner: The controller will refer the application to the examiner of the patent who examines the application thoroughly. The Examiner of patents shall submit his report with in 18 months from the date of filing to the controller. The Indian Patent Office usually proceeds with the examination of an application in the following order: 1. Understanding the invention 2. Assessment of patentability of the subject matter 3. Assessment of sufficiency of disclosure 4. Check for unity of invention 5. Appraisal of Industrial Applicable 6. Classification of the invention 7.Determination of the priority of each claim 8. Novelty search 9. Determination of the inventive step and 10. Judgment and validity of the claim. patent 3

patent: 

C)Third stage: Acceptance and proceedings in opposition: The controller will issue of acceptance of the application. The Controller will direct the publication of the patent application in the official gazette for information to all those who may be interested in opposing the grant of patent. If no objections from any of the interest parties-he grants the patent. In case any objections are received within 4 months from the date of publication, the controller will decide on the objection after giving full opportunity of making representation, adducing of evidence and hearing to all those who filed objections and the applicant. patent 4

patent: 

D ) Fourth stage :Granting and sealing of patent: With in 6 months from the date of the order disposing off the objection in the proceedings of opposition and grant to the applicant a patent. The applicant may apply to the controller to register the patent and grant him the Patent certificate and seal the patent. Patent certificate shall be issued within seven days of the grant of the patent The patent certificate will bear the number and date on which the complete specification is accepted and the sealing date is the date on which the patent is registered and sealed. E) Refusal to grant patent – consequence: The controller can refuse to grant the patent if the invention becomes public property or the patent term of which has expired . patent 5

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patent: 

Factors opposing the grant of patents: One can oppose the grant of patent to the person who claims the patent are : If the invention for which patent claimed is already published. If the subject of the claim can not be treated as invention and is not patentable under the Act. If the complete specification does not sufficiently and clear describe the invention or the method by which it is to be performed. If the applicant failed to disclose information required under the Act, or furnished information which in material particulars is false to his knowledge. The invention was wrongfully obtained by the inventor/applicant. The invention, as claimed in any claim of the complete specification has been anticipated in a specification filed for another patent earlier. The invention as claimed in any claim was publicly known/used in India before the priority date of the claim. The information furnished is false. Obviousness or Lack of Inventive Step. patent 11

patent: 

Register of patent: The patent office at Calcutta will maintain a Register of patent which includes: The name, address for service, nationality of the patent holder, the title of the invention including the category to which it belongs, the date of patent, and the date of sealing. All particulars and notifications about the assignments, transmissions, licences, amendments, extensions, and revocations are all recorded in the register. Particulars of the payment of fees and renewals can be seen in the register. If there are any changes in the address of the patent holder or holders, the same will be recorded in the register. patent 12

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