INTRODUCTION
Inte Intell llec ectu tual al prop proper erty ty has has incr increa easi sing ngly ly assu assume med d a vita vitall role role with with the the rapi rapid d pace pace of technological, scientific and medical innovation that we are witnessing today. Moreover, changes in the global economic environment have influenced the development of business models where intellectual property is a central element establishing value and potential growth. In India several new legislations for the protection of intellectual property rights (IPRs) have been passed to meet the international obligations under the W! "greement on rade#Related "spects "spects of Intellectual Intelle ctual Property Rights (RIP$). Intellectual property has therefore grown into one of the world%s biggest and fastest#growing fields of law thereby necessitating the demand demand for IP profess profession ionals als well versed in this area to deal with with (IPRs (IPRs)) acro across ss the the natio nationa nall and international borders. Intellectual Intellectual property (IP) refers to the creations of the human mind li&e li&e
inve invent ntio ions ns,,
arti artist stic ic
wor& or&s,
lite litera rary ry and and
and and
sym symbols bols,,
names, images and designs used in commerce. he most noticeable diff differ eren ence ce property property,
betw betwee een n and
other
however,
intel intelle lectu ctual al forms is
of that
intellectual property is intangible, that is, it cannot be defined or identified by its own physical parameters. It must be e'pressed in some discernible way to be protectable. enerally enerally,, it encompasses encompasses four separate and distinct types of intangible intangible property namely patents, trademar&s, copyrights, industrial design, geographical indication, and trade secrets, which collectively are referred to as *intellectual property.+
1 -r. R. Radha&rishnan -r. $. /alasubramanian, Intellectual Property Rights, 0'cel /oo&s. 1
INTELLECTUAL PROPERTY RIGHT IN INDIA
"s discussed above, historically the first system of protection of intellectual property came in the form of (1enetian !rdinance) in +234. his was followed by $tatute of Monopolies in 0ngland 0ngland in +567, which which e'tended e'tended patent rights rights for ech echnolo nology gy Inventions. Inventions. $tates, patent laws were were introduced introduced in +95:. +95:.
In the 8nited
Most 0urop 0uropean ean countries countries develo developed ped their their
Patent ;aws ;aws between +33: +33: to +33<. In India Patent Patent "ct "ct was introduced introduced in the year +345 which remained remained in force for over 4: years, which was subse=uently subse=uently modified and amended amended and was called >he Indian Patents and -esigns "ct, +<++>. +<++>. "fter Independence a comprehensive bill on patent rights was enacted in the year +<9: and was called >he Patents "ct, +<9:>. $pecific statutes protected only certain type of Intellectual output? till recently only four forms were protected. he protection was in the form of grant of copyrights, patents, designs and trademar&s. In India, India, copyrights copyrights were regulated regulated under the @opyright @opyright "ct, "ct, +<49? +<49? patents patents under Patents "ct, +<9:? trademar&s under rade and Merchandise Mar&s "ct +<43? and designs under -esigns "ct, +<++. With the establishment of W! and India being signatory to the "greement on rade#Related "spects of Intellectual Property Rights (RIP$), several new legislations were passed for the protection of intellectual property rights to meet the international obligations. hese includedA rade Mar&s, called the rade Mar& "ct, +<< -esigns "ct, +<++ was replaced by the -esigns "ct, 6:::? the @opyright "ct, +<49 amended a number of times, the latest is called @opyright ("mendment) "ct, 6:+6? and the latest amendments made to the Patents "ct, +<9: in 6::4. /esides, /esides, new legislations legislations on geographical geographical indications and plant varieties varieties were also enacted. hese are called eographical Indications of oods (Registration and Protection) "ct, +<<<, and Protection Protect ion of Plant 1arieties and Barmers% Rights "ct, 6::+ respectively. !ver the past fifteen years, intellectual property rights have grown to a stature from where it plays a maCor role in the development of global economy. economy.
In +<<:s, many countries
unilaterally strengthened their laws and regulations in this area, and many others were poised to do li&ewise. "t the multilateral level, the successful s uccessful conclusion of the "greement on rade# Related "spects of Intellectual Property Rights (RIP$) in the World rade !rganiDation eleva elevate tess the the prot protect ectio ion n and and enfo enforc rceme ement nt of IPRs IPRs to the the level level of solem solemn n inte intern rnati ation onal al commitment. commitment. It is strongly strongly felt that under the global competitive competitive environment, environment, stronger stronger IPR
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protection increases incentives for innovation and raises returns to international technology transfer. 1. DEVEL DE VELOPM OPMENT ENT OF PATENT PATENT LAW
enerally spea&ing, patent is a monopoly grant and it enables the inventor to control the output and within the limits set by demand, the price of the patented products. he grant of first patent can be traced as far bac& as 4:: /.@. It was the city dominated by gourmands, and perhaps the first, to grant what we now#a#days call patent right to promote culinary art. "s the practice was e'tended to other ree& cities and to other crafts and commodities, it ac=uired a name Emonopoly%, a ree& Portmanteau word from mono (alone) and polein (sale). Fistory shows that in +4th @entury in 1enice there had been systematic use of monopoly privileges for inventors for the encouragement of invention. 8tility and novelty of the invention were the important considerations for granting a patent privilege. /y the late +4th @entury, the 0nglish monarchy increasingly started using monopoly privilege to reward court favourites, to secure loyalty and to secure control over the industry but these privileges were not used to encourage inventions. In 0ngland during the +5th and +9th @entury, the inventor%s patent of monopoly had become of great national importance. Brom the mid#seventeenth @entury through through the mid# nineteenth @entury, the laws recognising the patent monopoly spread throughout 0urope and Gorth "merica, but these privileges were not granted without the opposition. he origin of the Indian Patent $ystem could be traced to the "ct of +345 granting e'clusive e'clusive privileges privileges to inventors. inventors. he patent patent regime at the time of Independence Independence was governed by the Patents and -esigns "ct, +<++, which had provisions both for product and process patents. $hortly after Independence, therefore, in +<2<, a committee was constituted under the chairmanship of Hustice (-r.) /a&shi e& @hand, a retired Cudge of the ;ahore Figh @ourt, @ourt, to underta underta&e &e a compre comprehen hensive sive review review of the wor&in wor&ing g of the +<++ "ct. "ct.
he he
@ommittee submitted its interim report on "ugust 2, +<2< and the final report in+<4: ma&ing recommendations for prevention of misuse or abuse of patent rights in India.
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In +<49, another committee came to be appointed under the chairmanship of Hustice G. RaCagopala "yyangar to ta&e a fresh loo& at the law of patent and to completely revamp and recast it to best sub#serve the contemporary needs of the country. country. Hustice "y "yyangar submitted a comprehensive Report on Patent ;aw Revision in $eptember +<4< and the new law of patent, namely, the the Patents "ct, +<9:, came to be enacted mainly based on the recommendations of the report, and came into force on "pril 6:, +<96 replacing the Patents and -esigns "ct, +<++. Fowever, the +<++ "ct continued to be applicable to designs. hus, hus, the Patent Patentss "ct "ct +<9: +<9: was e'pecte e'pected d to provid providee a reasona reasonable ble balance balance between between ade= ade=ua uate te and and effe effect ctiv ivee prot protect ectio ion n of pate patent ntss on the the one one hand hand and and the the tech techno nolo logy gy development, public interest and specific needs of the country on the other hand. 8ruguay round of " negotiations paved the way for W!. herefore, India was put unde underr the the cont contrac ractu tual al obli obliga gati tion on to amen amend d its its Pate Patent ntss "ct in comp complia lianc ncee with with the the provisions of RIP$. India had to meet the first set of re=uirements on +#+#+<<4. "ccordi "ccordingl ngly y an !rdina !rdinance nce effecti effecting ng certain certain change changess in the "ct was issued issued on 7+st 7+st -ecembe -ecemberr +<<2, +<<2, which which ceased ceased to operate operate after after si' months months.. $ubse= $ubse=uen uently tly,, anothe another r !rdinance was issued in +<<<. his !rdinance was subse=uently replaced by the Patents ("mendment) "ct, +<<< that was brought into force retrospectively from +st Hanuary, +<<4. he amended "ct "ct provided for filing of applications for product patents in the areas of drugs, pharmaceuticals and agro chemicals though such patents were not allowed. Fowever, such applications were to be e'amined only after 7+#+6#6::2. Meanwhile, the applicants could be allowed 0'clusive Mar&eting Rights (0MR) to sell or distribute these products in India, subCect to fulfilment of certain conditions. India amended its Patents "ct again in 6::6 through the Patents ("mendment) "ct, 6::6 increasing the term of patent to 6: years for all technology, Reversal of burden of proof, comp compul ulso sory ry lice licenc nces es etc. etc. his his "ct came came into into forc forcee on 6:th 6:th May May 6::7 6::7 with with the the introduction of the new Patent Rules, 6::7 by replacing the earlier Patents Rules, +<96. he third third amendm amendment ent to the Patent Patentss "ct "ct +<9: +<9: was introdu introduced ced throug through h the Patent Patentss ("mendment) ("mendment) !rdinance, 6::2 w.e.f. w.e.f. +st Hanuary, Hanuary, 6::4 incorporating incorporating provisions provisions for granting product patent in all fields of echnology including chemicals, food, drugs agrochemicals. his !rdinance was later replaced by the Patents ("mendment) "ct 6::4 on 2th "pril, 6::4 which is in force now having effect from +#+#6::4. 4
2. TRADEMARK
" trade mar& (popularly &nown as brand name in layman%s language) is a visual symbol which may be a word to indicate the source of the goods, a signature, name, device, label, numerals, or combination of colours used, or services, or other articles of commerce to distinguish it from other similar goods or services originating from another. Its origin dates bac& to ancient times, when craftsmen reproduced their signatures, or >mar&s> on their artistic or utilitarian products. !ver the years these mar&s evolved into todays system of trademar& registration and protection. he system helps consumers identify and purchase a product or service servi ce because its nature and =uality, indicated by its uni=ue trade mar&, meets their needs. Historica P!rs"!cti#!
he Indian rade Mar&s "ct, +<2: was the first statute law on trade mar&s in India. Prior to that protection of trademar&s was governed by @ommon ;aw. @ases concerning trade mar& mar&ss were were deci decide ded d in the the light light of $ect $ectio ion n 42 of $peci $pecifi ficc Reli Relief ef "ct, ct, +399 +399,, while while registration was secured by obtaining a declaration as to ownership under the Indian Registration "ct, +<:3. $ome of the provisions of the first rade Mar&s "ct, +<2: came into force on ++.7.+<2: and the rest became effective on +.5.+<26 (aDette of India 0'traordinary, +<26. p.532) he said enactment was amended by the rade Mar&s ("mendment) "ct, +<2+ and later by two other amendments. /y the rade Mar&s ("mendment) "ct, +<27, the rade rade Mar&s Registry, which was formerly a part of the Patent !ffice, @alcutta (now Jol&ata) was separated from the Patent !ffice to constitute a separate rade Mar&s Registry under a Registrar of rade Mar&s at /ombay (now Mumbai). hereafter, the "ct was amended by the rade Mar&s ("mendment) "ct, +<25, to give effect to the reciprocal arrangement relating to trade mar&s between the overnment of India and the then Indian $tates and further amendments introduced by Part / $tates ;aws "ct, +<4+. With the advent of W!, the law of trademar&s is now moderniDed under the rade Mar&s "ct of +<<< which provides for the registration of service mar&s and introduces various other provisions in conformity c onformity with the rade Mar& ;aw in developed countries . In this this cont conte' e't, t, the the rade rade Mar&s Mar&s /ill, /ill, +<<7 +<<7 was was intr introd oduc uced ed in the the ;o& ;o& $abh $abhaa on +<.4.+ +<.4.+<<7 <<7,, which which was passed by the ;o& $abha $abha on the lines recomm recommend ended ed by the 5
$tanding @ommittee. Fowever, as the /ill failed to get through the RaCya $abha, it lapsed on the dissolution of the ;o& $abha. " new /ill titled as rade Mar&s /ill, +<<< was introduced in RaCya $abha and eventually passed by both the Fouses of Parliament. he /ill received the assent of the President on 7:.+6.+<<< and became an "ct. $. CONCEP CONCEPT T OF INDU%T INDU%TRIA RIAL L DE%I DE%IGN GN
"n industrial industrial design is the ornamental ornamental or aesthetic aesthetic aspect of a useful article, which must appeal to the sense of sight and may consist consist of the shape andKor pattern andKor andKor colour of article. "n industrial design to be protectable must be new and original. Industrial designs are protected against unauthorised unauthorised copying or imitation, for a period which usually lasts for five, ten or +4 years. e'tile designs were the first to receive legal protection. "s early as in +939 the first "ct for design protection was enacted in reat /ritain for the encouragement of the arts of design. design. his was an e'perimental e'perimental measure e'tending e'tending protection protection for a limited duration. duration. $hortly thereafter its life was e'tended and it was made perpetual. In +37< the protection under the "ct was enlarged to cover *-esigns for Printing other woven Babrics>. he legislative process for design protection too& rapid strides thereafter. " consolidating and updating measure was enacted in +326. "n "ct to consolidate and amend the laws relating to the @opyright of -esigns for ornamenting "rticles of manufacture#repealed all the earlier statutes referred to above. It is significant to note that when the designs law was codified in +326 and too& its modern day shape. he first designs legislation enacted in India for the protection of Industrial -esigns was the Patents and -esigns Protection "ct, +396. It was enacted to supplement the "ct of +34< passed by the overnor eneral of India for granting e'clusive privileges to inventors and added protection for Industrial -esign. he "ct of +396 was passed to e'tend similar privileges to the inventors of *any new and original pattern and design in /ritish India, though for a very shorter durati on. he "ct, "ct, however, left undefined the e'pression new pattern or design. he (/ritish) Patents and -esigns "ct, "ct, +<:9, became the basis of the Indian Patents and -esigns "ct, +<++. +<++. he provision relating to patents under the Indian Patents and -esigns "ct, +<++, +<++, were repealed repealed by the Patents Patents "ct, +<9: L a post# Independence Independence updation updation and consolidation of the patent law. he design provisions of the Indian Patents and -esigns 6
"ct, +<++ continued, with some conse=uential amendments, with the title as the -esigns "ct, +<++. he new -esigns "ct, 6::: has been passed by the Parliament to ma&e the -esign ;aw in India RIP$ compliant. &. GEO GEOGRA GRAPHU PHUCAL CAL INDICA INDICAT TION
" product%s =uality, reputation or other characteristics can be determined by where it comes from. eographical indications (Is) are place names (in some countries also words associated with a place) used to identify products that come from these places and have these characteristics characteristics (for e'ample, e'ample, *@hampagne *@hampagne, , E$cotch E$cotch whis&y% whis&y% *e=uila *e=uila or *Ro=uefort). he "greement on rade Related "spects of Intellectual Property (RIP$), prescribes minimum minimum standards of protection protection of Is and additional additional protection protection for wines and spirits. "rticles 66 to 62 of Part II $ection III of the RIP$ prescribe minimum standards of protection to the geographical indications that W! members must provide. Moreover, RIP$ leaves it up to the Member countries to determine the appropriate method of implementin implementing g the provisions of the "greement "greement (including the provisions provisions on Is) within their own legal framewor& ("rticle +.+). India did not have such a specific law governing geographical indications of goods which could could ade=ua ade=uately tely protect protect the intere interest st of produc producers ers of such such goods. goods. his resulted resulted into controversial cases li&e turmeric, neem and basmati. o prevent prevent such such unfair unfair e'ploi e'ploitati tation, on, it became became necessa necessary ry to have have a compre comprehen hensiv sivee legislation for registration and for providing ade=uate legal protection to geographical indications. indications. "ccording "ccordingly ly the Parliament Parliament enacted a legislation legislation titled the eographical eographical Indications of oods (Registration and Protection) "ct, +<<< which came into force with effect from +4th $eptember 6::7. he present geographical indications regime in India is governed by the eographical Indications of oods (Registration Protection) "ct, +<<< and the eographical Indication of oods (Regulation and Protection) Rules, 6::6. $ome $ome commo commodi diti ties es that that have have been been recen recently tly gran grante ted d the the statu statuss of a eog eogra raph phica icall Indication by the overnment of India include ir Jesar Mango, /halia wheat, Jinhal oys, Gashi& 1alley wine, Monsoon Malabar "rabica @offee, Malabar Pepper, "lleppy reen @ardamom and Gilgiris !rthodo' ea. !ther e'amples include -arCeeling ea,
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Mysore $il&, Paithani $arees, Jota Masuria, Jolhapuri @happals, /i&aneri /huCia and "gra Petha. '. COPYRIGHT
he idea of copyright protection emerged with the invention of printing, which made the literary wor&s to be duplicated by mechanical process. Prior, to that hand cop ying was the sole mean of reproduction. "fter, "fter, the invention of uttenberg%s printing press in ermany in +275, a need to protect the printers and boo&sellers was recognised and thus certain privileges to printers, publishers and also authors were granted. he art of printing spread =uic&ly in 0urope. "fter +237, 0ngland emerged as a maCor centre of printing trade in 0urope. In +449 +449,, uee ueen n Mary Mary I, gran grante ted d the the priv privil ileg egee of regul regulati ating ng the the boo& boo& trade trade to the the $tationer%s company of ;ondon7. In +556, the ;icensing "ct was passed in 0ngland, which prohibited the printing of any boo& which was not licensed and registered with the $tationers% @ompany2. his was the first clear law which was aimed at protecting literary copyright and chec&ing piracy. he licence era was short lived. It was only with the passing of the ueen "nne%s "nne%s $tatute of +9:<, that, the rights of the authors over their wor& came to be legally recognised, and the concept of Epublic domain% was established, though not e'plicitly. e'plicit ly. hereafter came the "ct of +3+2, and then the "ct of +326 which repealed the two earlier "cts "cts of +9:< +9:< and and +3+2 +3+2.. he he @opy @opyrig right ht "ct of +<++ +<++ in 0ngl 0nglan and d had had codi codifie fied d and and consolidated the various earlier @opyright "ct was passed in +<+2. his was nothing but the copy of @opyright "ct of +<++ of 8J with suitable modification to ma&e it applicable to the /ritish India. he @opyright "ct of +<49, which is the current statute, has followed and adopted the principles and provisions contained in the 8J "ct of +<45 along with the introduction of new provisions. hen came the @opyright ("mendment) "ct, +<37 which made the number of amendments of the "ct of +<49 and the @opyright ("mendment) "ct, "ct, +<32 +<32 whic which h was was main mainly ly intr introd oduc uced ed with with the the obCec obCectt to disc discou ourag ragee and and prev preven entt the the widesp widespread read piracy piracy prevai prevailin ling g in video video films films and records. records. here herefor fore, e, the @opyri @opyright ght ("mendment) "ct, +<<2 has effected many maCor amendments in the @opyright "ct, +<496. 2 Dr. B.L. Wadehra, Law Relating to Intellectual Property , Universal Law Publicatin, !d. 5 th, "#. 26$. %
(. %EMICONDU %EMICONDUCTO CTOR% R% AND INTEGRA INTEGRATE TED D CIRCUIT CIRCUIT
he layout#designs of integrated circuits are creations of human mind. It ta&es enormous investment, both in terms of time and money, to design a new layout design. /ut a chip in few months by removing the chips plasticKceramic casing and photographing each layer of the translucent silicon material? at a fraction of original cost. Protection to semiconductors chips was first fir st given in the 8$ through $emiconductor @hip Protection "ct ($@P") in +<32 and its impact was felt virtually throughout the world. Hapan introduced similar protection in +<34, viD., Hapanese @ircuit ;ayout Right "ct (H@;R"). (H@;R"). "n 0@ -irective -irective7, with implementing legislation in all Member $tates of the 08 accel accelera erati ting ng inter interna nati tion onal al effo effort rtss resul resulti ting ng in form formul ulati ation on of +<3< +<3< reaty reaty on Intellectual Property in Respect of Integrated @ircuits (IPI@ reaty) under the auspices of WIP!. he IPI@ reaty was later became the part of RIP$ "greement2. Fence, a step was ta&en by various organiDations to pass regulations regarding this issue. !ne such was the World rade !rganiDation, and the result was the RIP$ agreement addressing the intellectual property related issues. India being a signatory of the W! also passed an "ct in conformity with the RIP$ agreement called the %!)ico*+,ctor I*t!-rat!+ Circ,its Lao,t/D!si-* Act ($I@;-") passed in the year 6:::. 0. TRA RAD DE %EC %ECRE RET T%
he importance of trade secret in the ambit of intellectual property has gained widespread recognition so much so that trade secret protection of wor&ing technologies has ta&en precedence over protection through patents. Gorth "tlantic Bree rade "greement (G"B") and "greement on rade Related "spects of Intellectual Property (RIPs? "rt. 7<) include specific provisions directed towards increasing the protection of trade secrets. Prio Pr iorr to th thes esee ag agree reeme ment nts, s, "rti rticle cle +:bis of the Par Paris is @on @onven ventio tion n (co (coveri vering ng unf unfair air competition) provides support for international standards of trade secret protection. 3 RaC&umar -ubey, -ubey, IndiaA $emiconductor Integrated @ircuits ;ayout -esign In Indian IP Regime, httpAKKwww.monda=.comKindiaK'K635:+KtechnologyK$emicon httpAKKwww.monda=.com KindiaK'K635:+KtechnologyK$emiconductorNIntegratedN@irc ductorNIntegratedN@ircuitsN;ayoutN-esignNI uitsN;ayoutN-esignNInNIn nNIn th dianNIPNRegime,, ;ast visited on +3 !ctober, 6:+5. dianNIPNRegime
4 &tul 'u"ta, (nte#rated )ircuits &nd (P* in (ndia, htt"+n"r.niscair htt"+n"r .niscair.res.inbitstrea-1234567%$3641/(P*02116023$7 .res.inbitstrea-1234567%$3641/(P*02116023$7 4%."d , Last visited n 1% th ctber, 216. $
rade secrets used to be protected in India either through contract law or through the e=uita e=u itable ble doc doctrin trinee of bre breach ach of confidentiality4. /u /utt in 6: 6::3 :3,, th thee In Indi dian an Pa Parl rliam iamen entt enacted an "ct called Gational Innovation "ct 6::3 to protect the trade secrets under its ambit.
5 Manisha $ingh Gair , IndiaA Protection !f rade $ecret, httpAKKwww.monda=.comKindiaK'K46255Kra httpAKKwww.monda=.com KindiaK'K46255KradeN$ecretsKProte deN$ecretsKProtectionN!fNr ctionN!fNradeN$ecret adeN$ecret,, ;ast visited on +
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CONCLU%ION
he he Indi Indian an IP regim regimee has has ta&en ta&en grea greatt strid strides es towa toward rdss the the incr increas eased ed prot protect ectio ion n and and enforcement of IP rights. Protection of Intellectual Properties is a very critical element in the offshore business model. he Indian IP regime has come a long way in recent years, IP rights in India has never loo&ed more positive. With the Indian Cudiciary showing enthusiasm for and commitment to the protection of IP rights, IP owners have become more proactive in enforcing their rights by all means, and are e'ploring unchartered waters to obtain uni=ue remedies from the courts. "lthough the benefits of specialised IP courts are still under debate in India. While much still remains to be done regarding the criminal Custice system, the Indian civil system for the protection of IP rights is improving daily. "lthough recent substantive deve develo lopm pment entss have have reap reaped ed signi signifi fican cantt rewar rewards ds for for IP owne owners rs in Indi India, a, ther theree are are still still unchartered waters waiting to be e'plored in the worldwide IP pool.
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