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India’s IPR Policy
• The government describes the National IPR Policy as a vision plan that aims to create and leverage synergies across all forms of intellectual property (IP), as well as pertinent laws and agencies.
• It creates an institutional structure for monitoring, assessment, and implementation.
• It aims to adapt international best practices to the circumstances in India.
• The policy establishes an institutional framework for implementation and assessment, addresses all types of intellectual property, and aims to foster collaboration with other agencies.
• The Cell for IPR Promotion & Management (CIPAM) under DPIIT is the single point of contact for carrying out the policy, and DPIIT is the nodal department for IPR development in India.
• The World Trade Organization’s (WTO) agreement onTrade Related Aspects of Intellectual Property (TRIPS) is complied with by India’s IPR framework.
LEGAL PROVISIONS
Indian Patent Act
• The Patents Act of 1970 had an extremely narrow definition of protection, requiring new, beneficial inventions to have a new method of manufacture.
• According to the Act, an innovation is “capable of industrial application” if it can be produced or employed in a certain industry.
• The Patent Act of 1970’s objective : Preventing third
parties from violating a product is the main goal of the Indian Patent Act. The patent holder may assert their rights in the event that a product that is identical is asserted to be an original creation.
Design Act of 2000
• The preservation of various types of rights is governed by specific laws in our nation.
• The goal of the design act is to safeguard any visually appealing design on an item.
• Design does not refer to any mode or principle of construction.
• Instead, it refers to features of shape, pattern,configuration, ornamentation, or composition of colors or lines that are applied in three dimensions or in two dimensions, or in both, by any industrial process or means, whether manual, mechanical, chemical, separate or combined, that in the finished article appeal to and are judged by the eye.
Salient features
• Classification was done based on the material utilized to create that material.
• The design’s subject matter serves as the exclusive foundation for the classification.
• Absolute novelty makes it possible to evaluate a novelty based on any article’s previous publications.
• Regaining registration for a design is feasible.
• If there is any violation, the severity of the punishment is increased.
Trademark Act, 1999
• The act aims to modernize and harmonize trademark laws, enhance trade mark registration and protection for products and services, and stop the use of counterfeit marks.
• Police have the authority to make arrests in cases of trademark infringement according to the Trademark Act of 1999.
• The often used term “infringement” has a full meaning provided by the Act. The Trademark Act stipulates penalties and punishments for violators. Additionally, it lengthens the time required for both regular and non- traditional trademark registration.
GI of Goods Act, 1999
• In order to improve the protection and registration of geographical indications related to commodities in India, the Geographical Indications of commodities (Registration and Protection) Act, 1999 was passed.
• Articles 1(2) and 10 of the Paris Convention emphasize the protection of geographical indicators and industrial property.
Objectives of IPR policy
• The promotion of public awareness regarding the economic, social, and cultural advantages of intellectual property rights (IPRs).
• The establishment of legal frameworks with robust and efficient IPR rules that balance the interests of rights holders with the larger good of society are two important goals.
• IPR commercialization can increase the value of intellectual property by commercializing it.
• Implementation and Settlement : The adjudicatory and enforcement mechanisms need to be improved in order to combat intellectual property infringements.
• The creation of IPRs encourages the creation of further IPRs.
• Service-oriented IPR administration is updated and strengthened by administration and management.
• Development of human capital: Strengthening and expanding human resources, institutions, and capacity for research, teaching, training, and skill development in IPRs are necessary.
WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)
One of the United Nations’s oldest specialized agencies
is WIPO.
The World Intellectual Property Organization was established in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world”.
Currently, 26 international treaties are overseen by WIPO.
The company is headquatered in Geneva, Switzerland.
Members
There are presently 193 member states in WIPO.
While it is not required, all UN members have the right to join specialized organizations like WIPO.
India became a member of WIPO in 1975.
Functions
A policy forum to develop fair international intellectual property laws in light of changing times.
• International services to settle conflicts and safeguard intellectual property.
• Technical framework for information sharing and IP system connections.
• Initiatives to increase capacity and foster cooperation so that all nations can use intellectual property for social, cultural, and economic advancement. A global source of IP information references.
TRADE RELATED INTELLECTUAL PROPERTY RIGHTS AGREEMENTS, 1994 (TRIPS)
• A global agreement on intellectual property rights is known as Trade Related Aspects of Intellectual Property Rights (TRIPS).
• TRIPS became operative in 1995 as a component of the
World Trade Organization (WTO) accord.
• Trade secrets and concealed information fall under the category of intellectual property, and TRIPS sets minimum requirements for the availability, extent, and use of seven types of intellectual property: patents, industrial designs, geographical indications,
trademarks, copyrights, and integrated circuit layout designs.
• It is applicable to every WTO member.
• The TRIPS Agreement specifies the acceptable exclusions and restrictions for striking a balance between the protection of intellectual property rights and the advancement of economic growth and public health.
CELL FOR IPR PROMOTION AND MANAGEMENT (CIPAM)
• Under the direction of the Department of Industrial Policy and Promotion (DIPP), the Cell for IPR Promotion and Management (CIPAM) was established as a professional organization to advance the National IPR Policy’s implementation.
• The policy was approved by the government in May 2016 and is titled “Creative India; Innovative India.”
• Functions The goal of CIPAM is to create:
• giving inventors a platform to sell their creations, and
• collaborating with government agencies and other stakeholders to coordinate the National IPR Policy’s execution.
• public knowledge of IPRs in the nation,
• facilitating the filing of intellectual property rights.
HISTORICAL BACKGROUND
• The idea of intellectual property may seem like a creation of the modern day, but it has existed since the dawn of humanity.
• A number of accounts trace the history of intellectual property rights back to 1421, when an Italian innovator received the first modern patent.
• However, former Lord Justice of Appeal Robin Jacob claims that intellectual property dates all the way back to 600 BCE.
INTELLECTUAL PROPERTY RIGHTS (IPR)
• In the economic, scientific, literary and artistic areas, intellectual property rights (IPRs) are legal rights over intangible creations, innovation, and discoveries.
• They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
• Intellectual property law’s principal goal is to encourage the creation of a wide range of intellectual commodities.
International Laws related to IPR
• The first conventions to acknowledge the significance of intellectual property rights (IPR) were the Berne Convention for the Protection of Literary and Artistic Works (1885) and the Paris Convention for the Protection of Industrial Property (1883).
• Both are under the jurisdiction of the World Intellectual Property Organization (WIPO).
• The Universal Declaration of Human Rights recognizes IPRs under Article 27.
• IPRs are governed by the Trade-Related Aspects of Intellectual Property Rights (TRIPS) framework of the World Trade Organization (WTO).
Other Treaties
• Madrid Agreement, 1881 – oversees the trademarks’ recognition on a global scale. It has made foreign fillings affordable and simple.
• Patent cooperation treaty, 1970 – An entity could not previously request protection in many countries with a single application. It was open to all parties to the Paris Convention and sought to foster cooperation.
Budapest Treaty of 1980 – It allowed microorganisms to be patented. The claimant must file his invention on microorganisms with the World Intellectual Property Organization’s “International depository of Micro- Organisms” authority. He will provide all necessary disclosures.
Trademark Law Treaty, 1994 – standardized administrative processes and included “service marks” inside the trade mark domain. In the past, trademarks were limited to products.
Objectives of IPR
The objectives of intellectual property rights are as follows:
• It aids in preserving the originality and ownership
of each person’s creation.
• It gives the relevant individual or authority ecognition.
• It makes it possible for creators of intellectual property to profit monetarily from their creations.
• They have financial incentives to both create intellectual property and bear the associated costs.
• These rights inspire people’s inventiveness, which inturn promotes economic expansion.
• The monopoly on their creations may also providesome financial support to the right holder.
• It boosts both the national economy and each person’s financial situation.
Need of IPR
• Inventors are granted exclusive rights to their significant inventions or developments through intellectual property rights (IPR).
• It safeguards immaterial assets that the general public can readily access and duplicate.
• In today’s globalized world, intellectual property rights are essential to international trade and livelihood activities.
• A country’s advancement is based on its intellectual property. It displays the young people’s inventiveness.
• IPR has the power to improve people’s lives. For billions of individuals, it is their source of income.
• It honors and rewards inventors and creators. Thus, this encourages an innovative atmosphere.
Issues with IPR
• The public, companies, and inventors all lack knowledge and comprehension of intellectual property rights.
• Pervasive occurrences of piracy and counterfeiting that violate intellectual property.
• Protracted and intricate legal processes as well as delays in IPR enforcement.
• The intellectual property offices and institutions have limited resources and competence.
• Limited availability of reasonably priced and effectiveIPR-related dispute resolution procedures.
• Lack of an all-encompassing national policy framework covering intellectual property issues.
PATENT
A patent is a type of limited-duration protection that can be used to protect inventions (or discoveries) that are new, non-obvious, and useful, such as a new process, machine, article of manufacture, or composition of matter.
A patent offers 20 years of protection. The invention becomes public domain after a patent expires, ending its protection.
The Patent Act of 1970 Act containing the patent laws is in India. Under the department of promotion of industry and internal commerce under the ministry of Commerce and industry, the office of the comptroller general of patents, designs, and trademarks is an institution that
investigates Indian patent laws.
Product patent granted to the product’s original inventor. It suggests that the product can only be produced by the inventor himself, either by the same procedure or a different one.
Process Patent, a specific technique and notation about the final product are covered by the patent. It is not against the law for any other company to use a different process to produce the same product.
The practice of pharmaceutical companies extending a drug’s patent life by obtaining new 20-year patents for minor reformulations or other iterations of the drug— without necessarily boosting the drug’s therapeutic efficacy—is known as “evergreening” of patents.
• Why Evergreening is prohibited: Section 3 of Chapter II of the Indian Patent Act, 1970 addresses non-patentable topics.
• Sub-section (3d) which reads “the mere discovery of a new form of a known substance or mere discovery of any new property or new use for a known
substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.”
Patents (Amendment) Rules, 2021
• Patent Fees for Educational Institutions Reduced:
• Research is a major activity in educational institutions, with professors, instructors, and students developing a number of new technologies that must be patented in order to be commercialized.
• In order to obtain patents, innovators must file these applications in the names of institutions that must pay expensive costs for numerous applicants, which serves as a deterrent.
• The Patents (Amendment) Rules, 2021 have decreased the official fees that educational institutions must pay for a number of acts under the Patents Rules, 2003 in order to promote increased participation from them.
• All educational institutions now qualify for the 80% reduced charge for patent filing and prosecution.
Challenges in the Patenting Process
• Procedural Complexity:Complicated filing and paperwork processes are a part of the patent application process. It could be difficult for innovators to keep up with the lengthy documentation and procedural requirements.
• Lengthy Approval Process: In India, the process of getting a patent approved can take a long time. Innovation may be discouraged by delays in the investigation and granting of patents, particularly in industries with rapid innovation, as this can make it more difficult for them to immediately assert their rights.
• Backlog of Patent Applications: There is a backlog of patent applications in India that need to be reviewed. The timely protection of innovations may be impacted by the considerable delays in the processing of patent applications caused by this backlog.
• Limited Awareness and Education: It’s possible that many innovators—particularly lone individuals and tiny enterprises—have little understanding of the significance of intellectual property rights and the patenting procedure. Missed possibilities for protection can arise from a lack of education.
New Patent Regime in India
• Product patents were made available in India by the Indian Patents (Amen dment) Act, 2005, which also signalled the start of a new patent system designed to safeguard patent holders’ intellectual property rights.
• India fulfilled its obligation to the World Trade Organization (WTO) regarding the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) by enacting the Act.
• The Act defined “new invention” and placed limitations on the patentability of certain inventions (section 3(d)).
• In financial year 2022, there were 66.4 thousand patents filed in India.
Advantages of New Patent Regime
• Encourages a culture of research and grassroots innovation: Establishing a culture of research and developing novel goods that meet regional needs and expectations requires a strong patent system. For example, an inexpensive machine in India that makes menstrual pads.
• Greater foreign investment- Robust patent laws encourage more FDI from multinational corporations. For instance, FDI in the industrial sector was drawn to China by its patent protection system.
• Promotes exports- Robust patent laws foster the creation of specialized technology that can boost India’s exports. For example, in vaccine technology, COVAXIN and COVISHIELD.
• Social benefits- In order to address today’s social problems—such as hunger, poverty, and climate change—patents are essential. For example, patents on technology for capturing, using, and storing carbon dioxide to combat global warming.
Challenges
• One of the main obstacles to the growth of patents in India has been the fear of abuse of the compulsory licensing clause.
• The pharmaceutical industry has expressed particular alarm over the prohibitions against evergreening of patents.
• The early settlement of patent dispute cases is no longer possible due to the dissolution of the Intellectual Property Appellate Board (IPAB).
• The Indian business sector spends little on developing high-quality patents, and the commercialization of academic inventions is currently limited.
Way Forward
• Post-facto examination of patent quality: Under the auspices of the Office of Principal Scientific Adviser, India shall conduct a post-facto analysis of patent quality. The number of citations a patent receives in the future could be used to determine how valuable it is.
• Sturdy intellectual property laws: India has to concentrate on strengthening its intellectual property laws, as this will encourage more businesses and academic institutions to submit superior patent applications.
• Re-establishing the Intellectual Property Appellate Board (IPAB): In order to expedite the resolution of patent infringement cases, the IPAB must be re- established and given greater structural autonomy as well as administrative and infrastructure improvements.
• Public awareness: All groups should be made aware
of the advantages that intellectual property has for the economy, society, and culture.
COMPULSORY LICENSING
A compulsory license is a permission or permit granted by the government that enables an applicant to produce, utilize, and market a product that is patented or to employ a patented technique without the patentee’s consent.
• The Indian Patents Act of 1970 and the Agreement on Trade-Related Aspects of Intellectual Property Rights both address compulsory licensing in Chapter XVI.
• A compulsory license application may be submitted at any moment following the expiration of three years from the date of patent sealing.
• In accordance with Section 92 of the Act, the Controlle of Patents may also grant compulsory licenses Suo- motu in response to a notification from the Central
Government in the event of a national emergency, extreme urgency, or “public non-commercial use.”
• Example: Bayer Corporation vs Natco Pharma (2013) was the first case in India in which a compulsory licence was granted to Natco Pharma for a Kidney cancer drug named “Nexavar”.
TRADEMARK
A trademark is a designation that sets one company’s products or services apart from those of other businesses.
The Ministry of Commerce and Industry is responsible for implementing the Trademark Act of 1999, which sets forth the regulations pertaining to trademarks in India.
It acknowledges the source company’s ownership of the brand and legally sets a product or service apart from all others of its kind.
Trademark owners now have an easy-to-use, affordable way to manage and safeguard their worldwide portfolio of trademarks thanks to the Madrid System for International Registration of Marks.
Trademarks do not expire, but in order to maintain their related protections, the owner must regularly use them.
Unauthorized use of a sign that is confusingly close to or identical to a registered trademark constitutes trademark infringement.
It acts as a badge of origin, uniquely designating a specific company as a source of goods or services.
When a mark has gained a great deal of recognition and goodwill, it is considered powerful.
The strength of a trademark determines the extent of its protection; the stronger the mark, the more protection it needs.
INDUSTRIAL DESIGN
In India, it operates under the Designs Act of 2000.
Two-dimensional elements like patterns, lines, or color can be combined with three-dimensional elements like an article’s shape to create an industrial design.
A design right is an innovative or unique design that is awarded to the owner of a legally registered design. Industrial designs are the outcome of creative activity that results in a product’s ornamental or formal appearance.
Provisions
An item of use’s unique decorative or artistic appearance.
Protection for ten years in the nation of filing, renewable once for an additional five years.
To renew protection after ten years, an application fee is needed.
COPYRIGHTS
The legal term “copyright” describes the ownership rights that writers and artists have over their creative creations.
It protects ideas expressed, not the ideas themselves. Copyright holders are the only ones with the authority to modify, duplicate, publish, translate, and distribute their creations to the general public.
Copyright protects computer programs, databases, advertisements, maps, technical drawings, paintings, sculptures, books, and movies.
In India, copyrights are governed under the Copyright Act, 1957.
A computer program or piece of software can likewise be considered a literary work.
Under the Copyright Act of 1957, computer programs, tables, and compilations—including computer databases—are regarded as literary works.
The source code needs to be sent with the application for software item copyright registration.
The WIPO Performances and Phonograms Treaty
Benefits of GI Tag
(WIPO PPT) and the WIPO Copyright Treaty (WCT) are now in compliance with Indian copyright law thanks to the 2012 modifications to the Copyrights Act.
GEOGRAPHICAL INDICATIONS (GI)
An object with a definite geographical origin and characteristics or a reputation attributed to that origin is labeled with a geographical indication (GI).
For a sign to function as a GI, it must specify that a product originates from a particular place. Furthermore, the primary source of the product’s qualities, attributes, or reputation should be its place of origin.
Geographic indicators in India are governed by the “Geographical Indications of Goods (Registration & Protection) Act, 1999.”
A geographical indicator (GI) is defined as “indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where
a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin” in Article 22 (1) of Trade-Related Aspects of Intellectual Property Rights (TRIPS).
• Non-agricultural products like handicrafts that are made using human abilities, local materials, and resources are also eligible for this certification because they contribute to the uniqueness of the product.
Examples of GI Tag in India
• On January 2, 2024, the indigenous people of the Mayurbhanj district of Odisha acquired a Geographical Identification tag for their Similar Kai Chutney, which is manufactured from red weaver ants.
• The Gucci Mushroom, originating from Jammu and Kashmir, has gained attention because to its demand as a GI Tag.
• Additional GI tags from the handicraft industry include Chikri craft, Tweed cloth, Loi blankets from Kishtwar, and Basohli Pashmina & Painting.
| Benefit | Description | Examples |
| Revenue Generation | Increased financial benefits, superior output, and profit sharing | Darjeeling Tea, Basmati Rice |
| Entrepreneurship | promoting talent-based business ventures | Pashmina Shawls (Kashmir) |
| Employment Creation | increasing job prospects | Banarasi Brocades, Bhagalpuri Silk |
| Women Empowerment | Increasing the number of women employment | Warli Paintings, Madhubani Art |
| Preserving Traditions | preserving customs in cuisine, culture, and crafts | Kalamkari Fabric, Alphonso Mango |
Concerns regarding the GI Tags
• The GI Act of 1999 was drafted more than 20 years ago, and it has to be updated on a regular basis to reflect modern issues.
• To facilitate compliance, registration forms and application processing times should be made simpler.
•
In India, the current application approval rate is only at 46%.
• Absence of Commercial Strategy: Inadequate plans for utilizing GIs in international trade.
• Restricted Organized Efforts: Lack of concerted efforts beyond defining uniqueness.
• International Disputes: It appears that GIs get less attention than patents, trademarks, and copyrights, particularly when it comes to products like Basmati rice and Darjeeling tea.
Measures to be adopted
• Digital Literacy: Through NGOs and stakeholders, give GI producers first priority when it comes to digital literacy.
• Ethical Capitalism: Encourage de-urbanization, female workforce participation, social entrepreneurship, and ethical capitalism.
• Mandatory Audits: Conduct audits and meetings with GI producers on a regular basis.
• Organized Marketing: Create an organized marketing strategy to increase the exclusivity and premium status of your goods.
• Legal protection for Geographically Inaccessible Products (GIs) includes protection for traditional knowledge and cultural expression found in the products.
NATIONAL IPR POLICY OF 2016
National IPR Policy 2016 encompasses all IPRs into a single vision document setting in place an institutional mechanism for implementation, monitoring and review of IP laws.
• The policy has seven objectives designed for creating an environment that encourages innovation and creativity by providing stronger protection and incentives for inventors, artists, and creators.
Objectives
• Raising public knowledge of the advantages of intellectual property among all societal segments is the primary goal of intellectual property rights (IPRs).
• To take appropriate action to promote the development and expansion of intellectual property.
• To have robust and functional IP rights legislation that are compliant with international commitments.
• To improve and modernize IP management.
• To spur the sale of intellectual property rights.
• To increase awareness of and respect for intellectual property rights and to fortify the enforcement and adjudicatory procedures for addressing IP infringement.
• Developing human resources and institutions for
training, research, and IP skill development in order to increase capacity.
• There are several measures undertaken to achieve the given objectives.
• Among measures taken are compliance and timeline reduction in IP filing and disposal, fee rebate for Startups, MSMES, Educational Institutions and
expedited examination for certain categories of applicant