Types Of Intellectual Property-Origin And Development-An Overview – Intellectual Property Rights Laws and Practices Important Questions

Question 1.
Write a brief note discussing the relativity between Intellectual Property and Business.
Intellectual Property vis-a-vis Business: A Rationale of Relativity:
In today’s world, the abundant supply of goods and services on the markets has made life very challenging for any business, big or small. In its ongoing quest to remain ahead of competitors in this environment, every business strives to create new and improved products (goods and services) that will deliver greater value to users and customers than the products offered by competitors. To differentiate their products – a prerequisite for success in today’s markets – businesses rely on innovations that reduce production costs and/or improve product quality. In a crowded marketplace, businesses have to make an ongoing effort to communicate the specific value offered by their product through effective marketing that relies on well-thought-out ‘ branding strategies.

In the current knowledge-driven, private sector-oriented economic development paradigm, the different types of intangible assets of a business are often more important and valuable than its tangible assets. A key subset of intangible assets is protected by what are labeled collectively as intellectual property rights (IPRs). These include trade secrets protection, copyright, design and trademark rights, and patents, as well as other types of rights. IPRs create tradable assets out of products of human intellect and provide a large array of IPR tools on which businesses can rely to help drive their success through innovative business models.

All businesses, especially those which are already successful, nowadays have to rely on the effective use of one or more types of intellectual property (IP) to gain and maintain a substantial competitive edge in the marketplace. Business leaders and managers, therefore, require a much better understanding of the tools of the IP system to protect and exploit the IP assets they own or wish to use, for their business models and competitive strategies in domestic and international markets.

Question 2.
Write a brief note on the utility model.
Utility Models:
A utility model is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorization for a limited period of time. In its basic definition, which may vary from one country (where such protection is available) to another, a utility model is similar to a patent. In fact, utility models are sometimes referred to as “petty patents” or “innovation patents.” Only a small but significant number of countries and regions provide the option of utility model protection. At present, India does not have legislation on Utility models.

The main differences between utility models and patents are the following:
The requirements for acquiring a utility model are less stringent than for patents. While the requirement of “novelty” is always to be met, that of “inventive step” or “non-obviousness” may be much lower or absent altogether. In practice, protection for utility models is often sought for innovations of a rather incremental character that may not meet the patentability criteria. The term of protection for utility models is shorter than for patents and varies from country to country (usually between 7 and 10 years without the possibility of extension or renewal).

In most countries where utility model protection is available, patent offices do not examine applications as to substance prior to registration. This means that the registration process is often significantly simpler and faster, taking on an average of six months. Utility models are much cheaper to obtain and maintain. In some J countries, utility model protection can only be obtained for certain fields of * technology, and only for products but not for processes.

Utility models are considered suitable particularly for SMEs that make “minor” improvements to, and adaptations of, existing products. Utility ‘ models are primarily used for mechanical innovations. The “Innovation patent,” launched in Australia some time back was introduced as a result of extensive, research into the needs of small and medium-sized enterprises, with the aim of providing a “low-cost entry point into the intellectual property system.”

Question 3.
Write a brief note on Biodiversity and IPR.
In simple terms, the diversity among various life forms within the Biosphere refers to biodiversity. Biodiversity is the foundation of life on Earth. It is crucial for the functioning of ecosystems that provide us with products and services without which we cannot live. By changing biodiversity, we strongly affect human well-being and the well-being of every other living creature.

Biodiversity is normally classified under 3 major categories; ecosystem diversity, representing the principal biogeographic regions and habitats; species diversity, representing variability at the level of families, genera, and ‘ species; and genetic diversity, representing a large amount of variability occurring within a species. Diverse activities and actions have been taken by several stakeholders at the local, state, national, and international levels to conserve/protect valuable resources such as biodiversity to draw the benefits accrued in it for the society.

The Convention on Biological Diversity (CBD) 1992: Opened for signature at the Earth Summit in Rio de Janeiro in 1992, and entering into force in December 1993, the Convention on Biological Diversity is an international treaty for the conservation of biodiversity, the sustainable use of the components of biodiversity and the equitable sharing of the benefits derived from the use of genetic resources.

The interface between biodiversity and intellectual property is shaped at the international level by several treaties and processes, including at the WIPO, and the TRIPS Council of the WTO. With 193 Parties, the Convention has near-universal participation among countries. The Convention seeks to address all threats to biodiversity and ecosystem services, including threats from climate change, through scientific assessments, the development of tools, incentives and processes, the transfer of technologies and good practices, and the full and active involvement of relevant stakeholders including indigenous and local communities, youth, NGOs, women and the business community. The Cartagena Protocol on Biosafety is a subsidiary agreement to the Convention.

It seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology. The treaty defines biodiversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” The Convention reaffirms the principle of state sovereignty, which grants states sovereign rights to exploit their resources pursuant to their own environmental policies together with the responsibility to ensure that activities within their own jurisdiction or control do not cause damage to the environment of other states. The Biodiversity Convention also provides a general legal framework regulating access to biological resources and the sharing of benefits arising from their use. India is a party to the Convention on Biological Diversity (1992).

The Convention on Biological Diversity establishes important principles regarding the protection of biodiversity while recognizing the vast commercial value of the planet’s store of germplasm. However, the expansion of international trade agreements establishing a global regime of intellectual property rights creates incentives that may destroy biodiversity, while undercutting social and economic development opportunities as well as cultural diversity. The member countries were pressurized to change their IPR laws to conform to the TRIPS agreement.

Question 4.
What are points, one should consider while adopting a Trademark?
A trademark is a word, phrase, symbol, or design that distinguishes the source of products (trademarks) or services (service marks) of one business from its competitors. In order to qualify for patent protection, the mark must be distinctive. For example, the Nike “swoosh” design identifies athletic footwear made by Nike.

The Trade Marks Act 1999 (“TM Act”) provides, inter alia, for registration of marks, filing of multi-class applications, the renewable term of registration of a trademark as ten years as well as recognition of the concept of well-known marks, etc. It is pertinent to note that the letter “R” in a circle i.e. ® with a trademark can only be used after the registration of the trademark under the TM Act.

Question 5.
Discuss the process for the enforcement of Patent Rights.
Enforcement of Patent Rights:
It is pertinent to note that the patent “infringement proceedings can only be initiated after grant of patent in India but may include a claim retrospectively from the date of publication of the application for grant of the patent. Infringement of a patent consists of the unauthorized making, importing, using, offering for sale, or selling any patented invention within India. Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law. Like trademarks, the relief which a court may usually grant in a suit for infringement of patent includes a permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction, and cost of the legal proceedings.

Question 6.
Discuss the salient features of the Design Act, 2000.
The salient features of the Design Act, 2000 are as under:

  1. Enlarging the scope of the definition of the terms “article”, “design” and introduction of a definition of “original”.
  2. Amplifying the scope of “prior publication”.
  3. Introduction of provision for delegation of powers of the Controller to other officers and stipulating statutory duties of examiners.
  4. Provision of identification of non-registrable designs.
  5. Provision for substitution of the applicant before registration of a design.
  6. Substitution of Indian classification by the internationally followed system of classification.
  7. Provision for inclusion of a register to be maintained on the computer as a Register of Designs.
  8. Provision for restoration of lapsed designs.
  9. Provisions for appeal against orders of the Controller before the High Court instead of Central Government.
  10. Revoking of a period of secrecy of two years of a registered design.
  11. Providing for compulsory registration of any document for transfer of right in the registered design.
  12. Introduction of additional grounds in cancellation proceedings and provision for initiating the cancellation proceedings before the Controller in place of High Court.
  13. Enhancement of quantum of penalty imposed for infringement of a registered design.
  14. Provision for grounds of cancellation to be taken as a defense in the infringement proceedings to be in any court not below the Court of District Judge.
  15. Enhancing the initial period of registration from 5 to 10 years, to be followed by a further extension of five years.
  16. Provision for allowance of priority to other convention countries and. countries belonging to the group of countries or inter-governmental organizations apart from the United Kingdom and other Commonwealth Countries.
  17. Provision for the avoidance of certain restrictive conditions for the control of anti-competitive practices in contractual licenses.

Question 7.
Discuss the Salient features of Geographical indications.
Geographical Indications: Until recently, Geographical indications were not registrable in India, and in the absence of statutory protection, Indian geographical indications had been misused by persons outside India to indicate goods not originating from the named locality in India. Patenting turmeric, neem, and basmati are the instances that drew a lot of attention towards this aspect of Intellectual property. Mention should be made that under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), there is no obligation for other countries to extend reciprocal protection unless a geographical indication is protected in the country of its origin. India did not have such a specific law governing geographical indications of goods that could adequately protect the interest of producers of such goods.

CS Professional Intellectual Property Rights Laws and Practices Notes