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| Environmental Protection and Increasing Pollution ISBN: 978-93-93166-11-1 For verification of this chapter, please visit on http://www.socialresearchfoundation.com/books.php#8 |
Intellectual Property Rights: National and International |
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Dr. Nirmala Koranga
Associate Professor
Botany
D.B.S.(P.G.) College
Dehradun Uttarakhand
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DOI: Chapter ID: 16171 |
| This is an open-access book section/chapter distributed under the terms of the Creative Commons Attribution 4.0 International, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. |
Abstract With
the advancement in the field of scientific discoveries, one of the issues is
the legal characterization of new inventions. Loosely defined, intellectual
property (IP) is a product of the mind. Intellectual property is intangible in
contrast to real property (land) or physical property, which one can see, feel
and use. With any type of property, there are property rights. When IPs are
expressed in a tangible form, they can also be protected. Intellectual property
rights (IPRs) have been created top protect the right of individuals to enjoy
their creations and discoveries. In fact, IPRs can be traced back to fourteenth
century, when European monarchs granted proprietary rights to writers for their
literary works. Innovation policies along with environmental laws, play a vital
role in addressing many global environmental issues. Intellectual property
rights, as temporary privileges over the products of intellectual activity,
determine who controls information and technology and its impact on our
environment. A brief description on IPR has been given in the paper. Keywords: Intellectual property
rights, protection, national, international, legality Introduction IPRs
have been created to ensure protection against unfair trade practice. Owners of
IP are granted protection by a state and/or country under varying conditions
and periods of time. This protection includes the right to: (i) defend their
rights to the property they have created, (ii) prevent others from taking
advantage of their ingenuity, (iii) encourage their continuing innovativeness
and creativity and (iv) assure the world a flow of useful, informative and
intellectual works. Protection
of Intellectual Property Intellectual
property is protected and governed by appropriate national legislations. The
national legislation specifically describes the inventions that are the subject
matter of protection and those which are excluded from protection. For example,
methods of treatment of the humans or animals by surgery or therapy, inventions
whose use would be contrary to law or morality, or inventions which are
injurious to public health are excluded from patentability in the Indian
legislation. World
organizations GATT- General Agreement on
Tariffs and Trade TRIPs- Trade Related Aspects of
Intellectual Property Rights WIPO- World Intellectual Property
Organization UPOV- International Union for
Protection of New Plant Varieties WTO- World Trade Organization GATT
was framed in 1948 and was meant to be a temporary arrangement to settle
amicably among countries disputes regarding who gets what share of the world
trade. GATT serves as a code of rules for international trade and a forum to
discuss and find solutions to trade problems of the member countries. In the 8th round
of negotiations another decision was taken to form WTO as a rule-based body for
all trade and trade-related issues. Thus, WTO became operative from 1st January
1995. WTO is multilateral trading system comprising of 153 members. It
envisages a comprehensive scheme for protection of IPRs and the establishment
of a legitimate reward system for the creative inputs of the inventors of
intellectual property under the broad category of one of the WTO agreements
i.e. Trade Related Aspects of Intellectual Property Rights (TRIPs). In 1961, at
Paris, a “Union International Pour La Protection Des Obtentions Vegetables”
UPOV (International Union for the Protection of New Varieties of Plants) was
signed for coordinating the inter country implementation of PBR and it entered
into force in 1968 with its headquarters based at Geneva. Forms
of Protection Usually
IPRs are protected by the following legal theories: Patents Patents are
the most important forms of protection for research and development
organizations. One of the most important examples of IP is the processes and
products that result from the development of genetic engineering techniques.
Another example of IP is the development of crop varieties, which are protected
through Plant Breeder Rights or PBRs. As the right is conferred by the State,
it can be revoked by the State under very special circumstances even if the
patent has been sold or licensed or manufactured or marketed in the meantime. A
patent is territorial in nature, i.e. within the boundaries of a particular
country, which has given the patent. The
purpose of a patent is to encourage and develop new innovations. The Patent Law
recognizes the exclusive right of a patentee to gain commercial advantage out
of his invention. There are three types of patents: (i) plant patent, (ii)
design patent, and (iii) utility or regular patent. Plant patents are granted
for newly developed asexually propagated plants which provide protection for 20
years. A design patents protect ornamental characteristics which provide
protection for 14 years. Utility patent is the most common patent used by
universities and companies to protect their results of research and
development. Patent
application There
are different types of patent application for grant of patent: 1. Ordinary
application 2. Convention
application 3. PCT
international application 4. PCT
national phase application 5. Application
for patent of addition 6. Divisional
application Normally
an ordinary application is filled when no priority is claimed by giving
reference to other application under process or any application made in a
convention country. A convention application is that application if a country
is a member of convention countries which are group of countries or union of
countries or an Inter-governmental organization which are notified by the
Ministry of Commerce and Industry, Government of India. Patent with complete
specification is a document having the following components: 1. Title
of invention 2. Field
of invention 3. Background
of invention with regard to drawbacks associated with prior art 4. Object
of invention 5. A
summary of invention 6. A
brief description of the accompanying drawing if any 7. Detailed
description of the invention with reference to examples and drawing 8. Claim(s) Before
filing an application, patent search should be made to determine the novelty of
an invention. A patent is enforced in the country that issues it. For each
country a separate application is to be filled in that country where protection
is sought if a country is not a member of patent cooperation treaty (PCT). PCT
is a multilateral treaty entered into force in 1978. Through PCT, an inventor
of member country (contracting state) of PCT can
simultaneously seek patent protection for his/her invention in all/any of the
member countries, without having to file a separate application in the
countries of interest, by designating them in the international PCT
application. India became a member of this treaty on December 7, 1998. Copyright Copyright protects
only the form of expression of ideas, not the ideas themselves. The creativity
protected by copyright law is creativity in the choice and arrangement of
words, musical notes, colors, shapes and so on. Copyright was created to
provide protection to composers, writers, authors and artists to protect their
original work against those who copy. In India, The Copyright Act 1957 as
amended in 1994 is in force. It is not necessary under the
Indian Act to register with the Copyright Office to get
copyright protection. A work is protected by a copyright at the moment it is
created in a tangible form (written copy, recorded music, filmed movie, digital
data saved on a computer disk). Registration of the work is however highly
recommended because such registration is helpful in an infringement suit.
Copyrights for different aspects have different time periods of protection viz.
sixty years for literary, dramatic, musical or artistic work, fifty years for
performance rights and twenty five years for broadcasting rights. Trademark It
is a mark capable of being represented graphically and which is capable of
identifying and distinguishing the goods or services of one person from those
of others and may include any word, name, design or device, shape, number,
slogan, smell, sound or anything that helps the consumer to identify the
products and/ or companies. In short, a trademark is a brand name. Trademark
law, unlike patent or copyright law, confers a perpetual right. So long as the
trademark continues to identify a single source, anyone who uses a very similar
mark may be liable for trademark infringement. India
has a Trade Marks Act, 1999. Overall there are 42 classes distinguishing the
goods and services. There are 34 classes of goods and 8 classes of services.
Trademark rights are so important that multinational companies spend huge
amount of money to maintain their respective trademarks around the world.
Rights of registration of trademark are valid in a country where it was
registered. If the products are sold in other countries, one should consider
applying for foreign registration. There is a Madrid Agreement which came into
force in 1989 and was meant for repression of false or deceptive indications of
source on goods. A Madrid protocol came into force on December 1, 1995 to
remove some of the discrepencies in the Madrid Agreement especially concerning
the International Classification of Goods and Services for the purpose of the
Registration of the Marks (1957) and Vienna Agreement establishing an
International Classification of the Figurative Elements of Marks (1973). Geographical
Indications The
geographical indications (GIs) for the purpose of TRIPs agreement have been
described as indications which could be used to recognize that a good has
originated in a particular territory, region or locality, where the given
quality, reputation or other characteristic of the good are essentially
attributable to its geographical origin. Protection of GI under the TRIPs
agreement is defined in two articles (Articles 22 and 23). All products are
covered by Article 22 which defines a standard level of protection. Article 23
provides a higher or enhanced level of protection for GIs for wines and
spirits. India enacted The Geographical Indication of Goods (Registration and
Protection) Act, 1999. India being part to the TRIPs agreement was required to
extend protection of GI for goods imported from other countries, which provide
for such protection. GI cannot be a trademark, the only exception is that
trademark held prior to the Act or in good faith. Different types of goods
including handicrafts (Channapatna toys, Mysore rosewood inlay), textiles
(PochampallyIkat, Chanderi saree, Kota Doria, Mysore silk, Kullu shawls),
agricultural (Darjeeling tea, Coorg orange, Mysore betel leaf, Nanjanagud
banana, Palakkadan Matta rice) have already been registered as GIs in India. Discussion Plant
Breeders Right In
order to understand the implication of IPRs on plant varieties and on
agricultural production, one has to understand the plant breeders rights (PBRs)
and how does it differ from patents. PBR refers to the legal protection
provided to a breeder, originator, or owner of a variety. The concept is based
on the realization that if commercial plant breeding is to be encouraged for
the benefit of agriculture and society, measures have to be taken to allow
breeders to profit from their products. Plant
variety protection in India The
Protection of Plant Varieties and Farmers’ Rights (PPV and FR) Act. As stated
India is signatory to WTO agreements and ratifiedthe agreement on TRIPs. As per
article 27.3 (b) of the TRIPs which demand that member countries should protect
their plant varieties either by patent, or an effective system of sui
genres protection, or a combination of these two. In this context,
India chose a sui genres system for protection of plant
varieties. An Act named as Protection of Plant Varieties and Farmers’ Rights
Act 2001 has been passed by Parliament on August 8, 2001 and Rules have been
framed in 2003. Authority has been constituted with its Head Office located at
Delhi. Conclusion Intellectual
property rules fundamentally affect the quality and availability of innovative
ideas and products and are therefore, extremely important in achieving
sustainable development, ensuring human health, and protecting the environment
as can be concluded from above. The level and scope of intellectual property
protection influences the flow of technologies between industrialized and
developing countries. These standards also impact the control communities have
over their traditional knowledge, their access to medicines as well as other
such issues fundamental to sustainable development. References 1. Anonymous, 2007. The protection of Plant
Varieties and Farmers’ Rights Act, 2001 and Rules Act, 2001 and Rules,
Universal Law Publishing Co., Delhi, 2007. |