4.
Protecting traditional knowledge
5. Compulsory Licensing & Drug Price Control Order
6. Some other issues
6. Related Topics
Intellectual Property Rights (IPR)
Intellectual Property Rights (IPR) are the rights acquired by an owner of an
intellectual property.
Intellectual property is a category of property that includes intangible
creations of the human intellect.
In simple terms, it refers to creations of the mind, such as
inventions
literary & artistic works
designs & symbols,
names & images used in commerce.
The main purpose of intellectual property law is to
encourage the creation of a wide variety of intellectual goods &
strike the right balance between the interests of innovators & wider
public interest.
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Laws & Rules that govern Intellectual Property Rights (IPR)
The importance of IPR was first recognized in the
1. Paris Convention for the Protection of Industrial Property (1883) &
2. Berne Convention for the Protection of Literary & Artistic Works
(1886).
Both are administered by the World Intellectual Property Organization
(WIPO).
IPRs have been outlined in Article 27 of the Universal Declaration of
Human Rights.
WTO governs IPR through Trade-Related Aspects of the Intellectual
Property Rights (TRIPS).
World Intellectual Property Organization (WIPO)
WIPO is one of the 15 specialized agencies of the United Nations (UN).
WIPO was created to promote and protect intellectual property (IP) across
the world by cooperating with countries as well as international
organizations.
It began operations in 1970.
Headquarters: Geneva, Switzerland.
WIPO currently has 193 member states.
WIPO’s activities include
hosting forums to discuss and shape international IP rules and policies,
providing global services that register and protect IP in different
countries,
resolving transboundary IP disputes,
helping connect IP systems through uniform standards and
infrastructure, and
serving as a general reference database on all IP matters.
Trade-Related Aspects of the Intellectual Property Rights (TRIPS)
TRIPS is an international agreement on intellectual property rights.
The Agreement covers most forms of intellectual property including
patents,
copyright,
trademarks,
geographical indications,
industrial designs,
trade secrets, &
exclusionary rights over new plant varieties.
It came into force in 1995 & is binding on all members of the World
Trade Organization (WTO).
Types of Intellectual Property
Patents
A patent is an exclusive right granted for an invention, which is a new
product or process that meets conditions of
novelty,
non-obviousness, &
industrial use.
A patent provides the owner with the right to decide how – or whether –
the invention can be used by others.
Criteria for issuing Patents in India
1. Novelty: it should be new (not published earlier + no prior Public
Knowledge/ Public Use in India)
2. Non obviousness: It must involve an inventive step (technical advanced in
comparison to existing knowledge + non‐obvious to a person skilled in the
relevant field of technology)
3. Industrial use: It should be capable of Industrial application
Patents in India are governed by “The patent Act 1970” which was
amended in 2005 to make it compliant with TRIPS.
What cannot be patented?
Frivolous Invention: Invention that harms public order/Morality/ health of
animals, plants & humans
Methods of agriculture or horticulture
Traditional Knowledge
Computer Program
Inventions related to Atomic Energy
Plants & Animals
Mere discovery of scientific principle
Patent (Amendment) Rules, 2020
The central government has published an amended Patent (Amendment)
Rules, 2020.
The new rules have amended the format of a disclosure statement that
patentees & licensees are required to annually submit to the Patent
Office.
The format contains disclosing the extent to which they have commercially
worked or made the patented inventions available to the public in the
country.
The disclosure is to be made in the Form 27 format as prescribed under the
Patent Rules, 2003.
The patentees & licensees as well as the Patent Office have blatantly
disregarded this statutory requirement.
There has been significant pressure from MNCs & the U.S. to do away
with this requirement.
Criticism of Patent (Amendment) Rules, 2020
The amendment has significantly weakened the requirement of submitting
information in the disclosure.
This could hamper the effectiveness of India’s compulsory licensing
regime which depends on full disclosure of patent working
information.
This in turn could hinder access to vital inventions including life-saving
medicines.
Industrial Designs
An industrial design constitutes the ornamental or aesthetic aspect of an
article/object.
A design may consist of three-dimensional features, such as the shape or
surface of an article, or of two-dimensional features, such as patterns, lines
or colors.
Industrial Designs in India are governed by “The Designs Act 2000”.
Copyright
Copyright is a legal term used to describe the rights that creators have over
their literary & artistic works.
Works covered by copyright range from books, music, paintings, sculpture
& films, to computer programs, databases, advertisements, maps &
technical drawings.
Copyrights in India are governed by “The Copyright Act, 1957”.
Trademarks
A trademark is a sign capable of distinguishing the goods or services of
one enterprise from those of other enterprises.
Trademarks date back to ancient times when artisans used to put their
signature or “mark” on their products.
Trademarks in India are governed by Trade Marks Act 1999 which was
amended in 2010.
Geographical Indications
A GI tag is a legal recognition given primarily to an agricultural, natural or
a manufactured product (handicrafts & industrial goods) originating from a
definite geographical territory.
GI tag conveys an assurance of quality & distinctiveness of a product,
which is essentially attributable to the place of its origin.
Most commonly, a geographical indication includes the name of the place
of origin of the goods.
Once the GI protection is granted, no other producer can misuse the
name to market similar products.
It also provides comfort to customers about the authenticity of that
product.
Geographical Indicators in India are governed by “The Geographical
Indications of Goods (Registration & Protection) Act, 1999”.
What is the difference between a Geographical Indication (GI) & a
Trademark?
A trademark is a sign/word/phrase used by an entity to distinguish its goods
& services from those of others.
A geographical indication tells consumers that a product is produced in a
certain place & has certain characteristics that are due to that place of
production.
A trademark gives the entity the right to prevent others from using the
trademark.
On the other hand, GI may be used by all producers who make their
products in the place designated by a geographical indication.
Trade secrets
Trade secrets are IP rights on confidential information which may be sold
or licensed.
The unauthorized acquisition use or disclosure of such secret information
by others is regarded as an unfair practice & a violation of the trade secret
protection.
There is no specific law.
Plant Variety Protection
It refers to the protection granted for plant varieties.
These rights are given to the farmers & breeders to encourage the
development of new varieties of plants.
Plant variety protection in India is governed by “The Protection of
Plant Varieties & Farmers’ Rights (PPV&FR) Act, 2001”.
Protection of Plant Varieties & Farmers’ Rights (PPVFR) Act, 2001
PPVFR Act, 2001 has been enacted in India for giving effect to the TRIPS
Agreement.
The PPVFR Act retained the main spirit of TRIPS viz., IPRs as an incentive
for technological innovation.
However, the Act also had strong provisions to protect farmers’ rights.
The act allows farmers to plant, grow, exchange & sell patent-protected
crops, including seeds, & only bars them from selling it as “branded
seed”.
It recognised three roles for the farmer: cultivator, breeder & conserver.
As cultivators, farmers were entitled to plant-back rights.
As breeders, farmers were held equivalent to plant breeders.
As conservers, farmers were entitled to rewards from a National Gene
Fund.
After joining WTO in 1995, the choice before India was to either enact a law or to accept the
plant breeders’ rights given by the International Union for Protection of New Plant
Varieties (UPOV Convention).
UPOV option was earlier rejected because it denied the farmers the freedom to re-use farm-
saved seeds & to exchange them with their neighbours.
However, in 2002, India joined the UPOV convention.
Objectives of the PPVFR Act
Facilitate an effective system for the protection of plant varieties & the
rights of farmers.
Encourage the development of new varieties of plants.
Protect the rights of the farmers in respect of their contribution in
conserving plant genetic resources.
Facilitate the growth of the seed industry which will ensure the availability
of high quality seeds.
Criticism of PPVFR Act, 2001
Discourages research & innovation: PPVFR Act allows farmers to use
patented varieties & hence private companies are not keen to bring new
technology.
India neither invests in public sector nor respects private & foreign players’
IPR (bad for business).
National IPR Policy, 2016
The Policy aims to push IPRs as a marketable financial asset, promote
innovation & entrepreneurship while protecting public interest.
The plan will be reviewed every five years in consultation with
stakeholders.
To have strong & effective IPR laws, steps would be taken — including
review of existing IP laws — to update & improve them or to remove
anomalies & inconsistencies.
The policy is entirely compliant with the WTO’s agreement on TRIPS.
Department of industrial policy & promotion (DIPP) is the nodal agency
for all IPR issues.
The policy retains the provisions on Compulsory Licensing (CL) as well
as preventing ever-greening of drug patents (Section 3(d) of India’s
Patents Act).
Under Indian Patents Act, a CL can be issued for a drug if the medicine is
deemed unaffordable, among other conditions, & the government grants
permission to qualified generic drug makers to manufacture it.
Objectives under policy are
Intellectual Property Rights Issues: The Five Major Challenges Faced
There are many IPR issues that one faces while getting IP rights in India.
The issues are as follows:
Patent Evergreening Prevention
One of the most important intellectual property rights issues challenges is
the prevention of the evergreening of the patents for multinational
companies.
Evergreening is strategy for extending the term of granted patent which is
about to expire without increasing therapeutic efficacy in order to retain
royalties.
As we know, the companies cannot evergreen their patents simply by
making minor changes.
So, section 3(d) in the Indian Patent Act (IPA) possess as one of the biggest
issues with regards to IPR.
This act bars the grant of patents to new forms of substances.
This has discouraged investments from western countries.
Subsidies & IPR Issues
A major form of subsidies includes food subsidy, fertilizer subsidy,
education subsidy, etc.
For the complete implementation of TRIPS agreements, one needs to
reduce or eliminate these subsidies.
Thus, GOI needs to create a balance between providing subsidies &
providing IP rights in India.
The Product Patents Process
A product patent protects a product.
It offers high protection to the original inventor to reduce the competition
for the same product.
Whereas a process patent protects the process through which one
manufactures the product & not the product.
It reduces the element of monopoly in the market.
As India is a part of the TRIPS agreement, the agreement requires all its
members to shift their patent regime from process to product patent.
This remains a challenge for India, as process patent would be more
helpful to a country like India.
This is since India is a developing country & ordinary people are struggling
with basic necessities like food.
Protecting traditional knowledge
Traditional knowledge, especially in the field of medicine, is like a gold
mine.
GOI is bound to protect traditional knowledge by not allowing MNC’s to get
patents on traditional culture.
Above all, the government has created a Traditional Knowledge Digital
Library (TKDL) to prevent the patenting of traditional knowledge.
So, this is one of the intellectual property rights issues in India.
Compulsory Licensing & Drug Price Control Order
One of the most important intellectual property rights issues that the
government needs to address is the use of compulsory licensing.
Compulsory licenses are authorizations given to a third-party by the
Government to make, use or sell a particular patented product without
the need of the permission of the patent owner.
The provisions regarding compulsory licenses are given in the Indian
Patents Act, 1970 & in the TRIPS (Trade-Related Aspects of Intellectual
Property Rights) Agreement.
It is a relaxation available to the developing countries under the TRIPS
agreement, something which organizations misuse sometimes.
Moreover, under section 84 of the IPA, a company can acquire a
compulsory license for “private commercial use” under certain
circumstances.
With the Drug Price Control Order, the company needs to justify the price
of the drug with regards to investments.
If someone plays foul, then the government has the right to intervene.
Multinationals are asking the government to revoke this provision.