INTRODUCTION

Intellectual property has increasingly assumed a vital role with the rapid 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 WTO Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Intellectual property has therefore grown into one of the worlds biggest and fastest-growing
fields of law thereby necessitating
the demand for IP professionals
well versed in this area to deal
with (IPRs) across the national
and international borders.
Intellectual property (IP) refers to
the creations of the human mind
like

inventions,

artistic

works,

literary
and

and

symbols,

names, images and designs used

in commerce. The most noticeable
difference

between

intellectual

property and other forms of

property,

however,

is

that

intellectual property is intangible, that is, it cannot be defined or identified by its own
physical parameters. It must be expressed in some discernible way to be protectable.
Generally, it encompasses four separate and distinct types of intangible property namely
patents, trademarks, copyrights, industrial design, geographical indication, and trade secrets,
which collectively are referred to as intellectual property.1

1 Dr. R. Radhakrishnan & Dr. S. Balasubramanian, Intellectual Property Rights, Excel Books.
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INTELLECTUAL PROPERTY RIGHT IN INDIA

As discussed above, historically the first system of protection of intellectual property came in
the form of (Venetian Ordinance) in 1485. This was followed by Statute of Monopolies in
England in 1623, which extended patent rights for Technology Inventions.
States, patent laws were introduced in 1760.

In the United

Most European countries developed their

Patent Laws between 1880 to 1889. In India Patent Act was introduced in the year 1856
which remained in force for over 50 years, which was subsequently modified and amended
and was called "The Indian Patents and Designs Act, 1911". After Independence a
comprehensive bill on patent rights was enacted in the year 1970 and was called "The Patents
Act, 1970".
Specific statutes protected only certain type of Intellectual output; till recently only four
forms were protected. The protection was in the form of grant of copyrights, patents, designs
and trademarks. In India, copyrights were regulated under the Copyright Act, 1957; patents
under Patents Act, 1970; trademarks under Trade and Merchandise Marks Act 1958; and
designs under Designs Act, 1911.
With the establishment of WTO and India being signatory to the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), several new legislations were passed for the
protection of intellectual property rights to meet the international obligations. These included:
Trade Marks, called the Trade Mark Act, 1999; Designs Act, 1911 was replaced by the
Designs Act, 2000; the Copyright Act, 1957 amended a number of times, the latest is called
Copyright (Amendment) Act, 2012; and the latest amendments made to the Patents Act, 1970
in 2005. Besides, new legislations on geographical indications and plant varieties were also
enacted. These are called Geographical Indications of Goods (Registration and Protection)
Act, 1999, and Protection of Plant Varieties and Farmers Rights Act, 2001 respectively.
Over the past fifteen years, intellectual property rights have grown to a stature from where it
plays a major role in the development of global economy.

In 1990s, many countries

unilaterally strengthened their laws and regulations in this area, and many others were poised
to do likewise. At the multilateral level, the successful conclusion of the Agreement on TradeRelated Aspects of Intellectual Property Rights (TRIPS) in the World Trade Organization
elevates the protection and enforcement of IPRs to the level of solemn international
commitment. It is strongly felt that under the global competitive environment, stronger IPR

protection increases incentives for innovation and raises returns to international technology
transfer.
1. DEVELOPMENT OF PATENT LAW
Generally speaking, 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. The grant
of first patent can be traced as far back as 500 B.C. 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. As the practice was extended to other Greek cities and to other
crafts and commodities, it acquired a name monopoly, a Greek Portmanteau word from
mono (alone) and polein (sale).
History shows that in 15th Century in Venice there had been systematic use of monopoly
privileges for inventors for the encouragement of invention. Utility and novelty of the
invention were the important considerations for granting a patent privilege. By the late
15th Century, the English 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 England during the 16th and 17th Century, the inventors patent of monopoly had
become of great national importance. From the mid-seventeenth Century through the midnineteenth Century, the laws recognising the patent monopoly spread throughout Europe
and North America, but these privileges were not granted without the opposition.
The origin of the Indian Patent System could be traced to the Act of 1856 granting
exclusive privileges to inventors. The patent regime at the time of Independence was
governed by the Patents and Designs Act, 1911, which had provisions both for product
and process patents.
Shortly after Independence, therefore, in 1949, a committee was constituted under the
chairmanship of Justice (Dr.) Bakshi Tek Chand, a retired judge of the Lahore High
Court, to undertake a comprehensive review of the working of the 1911 Act. The
Committee submitted its interim report on August 4, 1949 and the final report in1950
making recommendations for prevention of misuse or abuse of patent rights in India.

In 1957, another committee came to be appointed under the chairmanship of Justice N.

Rajagopala Ayyangar to take a fresh look at the law of patent and to completely revamp
and recast it to best sub-serve the contemporary needs of the country. Justice Ayyangar
submitted a comprehensive Report on Patent Law Revision in September 1959 and the
new law of patent, namely, the Patents Act, 1970, came to be enacted mainly based on the
recommendations of the report, and came into force on April 20, 1972 replacing the
Patents and Designs Act, 1911. However, the 1911 Act continued to be applicable to
designs.
Thus, the Patents Act 1970 was expected to provide a reasonable balance between
adequate and effective protection of patents on the one hand and the technology
development, public interest and specific needs of the country on the other hand.
Uruguay round of GATT negotiations paved the way for WTO. Therefore, India was put
under the contractual obligation to amend its Patents Act in compliance with the
provisions of TRIPS. India had to meet the first set of requirements on 1-1-1995.
Accordingly an Ordinance effecting certain changes in the Act was issued on 31st
December 1994, which ceased to operate after six months. Subsequently, another
Ordinance was issued in 1999. This Ordinance was subsequently replaced by the Patents
(Amendment) Act, 1999 that was brought into force retrospectively from 1st January,
1995. The amended Act provided for filing of applications for product patents in the areas
of drugs, pharmaceuticals and agro chemicals though such patents were not allowed.
However, such applications were to be examined only after 31-12-2004. Meanwhile, the
applicants could be allowed Exclusive Marketing Rights (EMR) to sell or distribute these
products in India, subject to fulfilment of certain conditions.
India amended its Patents Act again in 2002 through the Patents (Amendment) Act, 2002
increasing the term of patent to 20 years for all technology, Reversal of burden of proof,
compulsory licences etc. This Act came into force on 20th May 2003 with the
introduction of the new Patent Rules, 2003 by replacing the earlier Patents Rules, 1972.
The third amendment to the Patents Act 1970 was introduced through the Patents
(Amendment) Ordinance, 2004 w.e.f. 1st January, 2005 incorporating provisions for
granting product patent in all fields of Technology including chemicals, food, drugs &
agrochemicals. This Ordinance was later replaced by the Patents (Amendment) Act 2005
on 4th April, 2005 which is in force now having effect from 1-1-2005.
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2. TRADEMARK
A trade mark (popularly known as brand name in laymans 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 back to ancient times, when craftsmen reproduced their signatures, or "marks" on
their artistic or utilitarian products. Over the years these marks evolved into today's
system of trademark registration and protection. The system helps consumers identify and
purchase a product or service because its nature and quality, indicated by its unique trade
mark, meets their needs.
Historical Perspective
The Indian Trade Marks Act, 1940 was the first statute law on trade marks in India. Prior
to that protection of trademarks was governed by Common Law. Cases concerning trade
marks were decided in the light of Section 54 of Specific Relief Act, 1877, while
registration was secured by obtaining a declaration as to ownership under the Indian
Registration Act, 1908. Some of the provisions of the first Trade Marks Act, 1940 came
into force on 11.3.1940 and the rest became effective on 1.6.1942 (Gazette of India
Extraordinary, 1942. p.684)
The said enactment was amended by the Trade Marks (Amendment) Act, 1941 and later
by two other amendments. By the Trade Marks (Amendment) Act, 1943, the Trade Marks
Registry, which was formerly a part of the Patent Office, Calcutta (now Kolkata) was
separated from the Patent Office to constitute a separate Trade Marks Registry under a
Registrar of Trade Marks at Bombay (now Mumbai). Thereafter, the Act was amended by
the Trade Marks (Amendment) Act, 1946, to give effect to the reciprocal arrangement
relating to trade marks between the Government of India and the then Indian States and
further amendments introduced by Part B States Laws Act, 1951.
With the advent of WTO, the law of trademarks is now modernized under the Trade
Marks Act of 1999 which provides for the registration of service marks and introduces
various other provisions in conformity with the Trade Mark Law in developed countries.
In this context, the Trade Marks Bill, 1993 was introduced in the Lok Sabha on
19.5.1993, which was passed by the Lok Sabha on the lines recommended by the
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Standing Committee. However, as the Bill failed to get through the Rajya Sabha, it lapsed
on the dissolution of the Lok Sabha. A new Bill titled as Trade Marks Bill, 1999 was
introduced in Rajya Sabha and eventually passed by both the Houses of Parliament. The
Bill received the assent of the President on 30.12.1999 and became an Act.
3. CONCEPT OF INDUSTRIAL DESIGN
An industrial design is the ornamental or aesthetic aspect of a useful article, which must
appeal to the sense of sight and may consist of the shape and/or pattern and/or colour of
article. An industrial design to be protectable must be new and original. Industrial designs
are protected against unauthorised copying or imitation, for a period which usually lasts
for five, ten or 15 years.
Textile designs were the first to receive legal protection. As early as in 1787 the first Act
for design protection was enacted in Great Britain for the encouragement of the arts of
design. This was an experimental measure extending protection for a limited duration.
Shortly thereafter its life was extended and it was made perpetual. In 1839 the protection
under the Act was enlarged to cover Designs for Printing other woven Fabrics".
The legislative process for design protection took rapid strides thereafter. A consolidating
and updating measure was enacted in 1842. An Act to consolidate and amend the laws
relating to the Copyright of Designs for ornamenting Articles of manufacture-repealed all
the earlier statutes referred to above.
It is significant to note that when the designs law was codified in 1842 and took its
modern day shape. The first designs legislation enacted in India for the protection of
Industrial Designs was the Patents and Designs Protection Act, 1872. It was enacted to
supplement the Act of 1859 passed by the Governor General of India for granting
exclusive privileges to inventors and added protection for Industrial Design. The Act of
1872 was passed to extend similar privileges to the inventors of any new and original
pattern and design in British India, though for a very shorter duration. The Act, however,
left undefined the expression new pattern or design.
The (British) Patents and Designs Act, 1907, became the basis of the Indian Patents and
Designs Act, 1911. The provision relating to patents under the Indian Patents and Designs
Act, 1911, were repealed by the Patents Act, 1970 a post- Independence updation and
consolidation of the patent law. The design provisions of the Indian Patents and Designs
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Act, 1911 continued, with some consequential amendments, with the title as the Designs
Act, 1911. The new Designs Act, 2000 has been passed by the Parliament to make the
Design Law in India TRIPS compliant.
4. GEOGRAPHUCAL INDICATION
A products quality, reputation or other characteristics can be determined by where it
comes from. Geographical indications (GIs) 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 (for example, Champagne, Scotch whisky Tequila or
Roquefort).
The Agreement on Trade Related Aspects of Intellectual Property (TRIPS), prescribes
minimum standards of protection of GIs and additional protection for wines and spirits.
Articles 22 to 24 of Part II Section III of the TRIPS prescribe minimum standards of
protection to the geographical indications that WTO members must provide. Moreover,
TRIPS leaves it up to the Member countries to determine the appropriate method of
implementing the provisions of the Agreement (including the provisions on GIs) within
their own legal framework (Article 1.1).
India did not have such a specific law governing geographical indications of goods which
could adequately protect the interest of producers of such goods. This resulted into
controversial cases like turmeric, neem and basmati.
To prevent such unfair exploitation, it became necessary to have a comprehensive
legislation for registration and for providing adequate legal protection to geographical
indications. Accordingly the Parliament enacted a legislation titled the Geographical
Indications of Goods (Registration and Protection) Act, 1999 which came into force with
effect from 15th September 2003. The present geographical indications regime in India is
governed by the Geographical Indications of Goods (Registration & Protection) Act, 1999
and the Geographical Indication of Goods (Regulation and Protection) Rules, 2002.
Some commodities that have been recently granted the status of a Geographical
Indication by the Government of India include Gir Kesar Mango, Bhalia wheat, Kinhal
Toys, Nashik Valley wine, Monsoon Malabar Arabica Coffee, Malabar Pepper, Alleppy
Green Cardamom and Nilgiris Orthodox Tea. Other examples include Darjeeling Tea,

Mysore Silk, Paithani Sarees, Kota Masuria, Kolhapuri Chappals, Bikaneri Bhujia and
Agra Petha.
5. COPYRIGHT
The idea of copyright protection emerged with the invention of printing, which made the
literary works to be duplicated by mechanical process. Prior, to that hand copying was the
sole mean of reproduction. After, the invention of Guttenbergs printing press in Germany
in 1436, a need to protect the printers and booksellers was recognised and thus certain
privileges to printers, publishers and also authors were granted. The art of printing spread
quickly in Europe. After 1483, England emerged as a major centre of printing trade in
Europe.
In 1557, Queen Mary I, granted the privilege of regulating the book trade to the
Stationers company of London3. In 1662, the Licensing Act was passed in England,
which prohibited the printing of any book which was not licensed and registered with the
Stationers Company4. This was the first clear law which was aimed at protecting literary
copyright and checking piracy. The licence era was short lived. It was only with the
passing of the Queen Annes Statute of 1709, that, the rights of the authors over their
work came to be legally recognised, and the concept of public domain was established,
though not explicitly.
Thereafter came the Act of 1814, and then the Act of 1842 which repealed the two earlier
Acts of 1709 and 1814. The Copyright Act of 1911 in England had codified and
consolidated the various earlier Copyright Act was passed in 1914. This was nothing but
the copy of Copyright Act of 1911 of UK with suitable modification to make it applicable
to the British India. The Copyright Act of 1957, which is the current statute, has followed
and adopted the principles and provisions contained in the UK Act of 1956 along with the
introduction of new provisions. Then came the Copyright (Amendment) Act, 1983 which
made the number of amendments of the Act of 1957 and the Copyright (Amendment) Act,
1984 which was mainly introduced with the object to discourage and prevent the
widespread piracy prevailing in video films and records. Therefore, the Copyright
(Amendment) Act, 1994 has effected many major amendments in the Copyright Act,
19572.
2 Dr. B.L. Wadehra, Law Relating to Intellectual Property, Universal Law
Publication, Ed. 5th, pg. 269.
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6. SEMICONDUCTORS AND INTEGRATED CIRCUIT

The layout-designs of integrated circuits are creations of human mind. It takes enormous
investment, both in terms of time and money, to design a new layout design. But a chip in
few months by removing the chips plastic/ceramic casing and photographing each layer
of the translucent silicon material; at a fraction of original cost.
Protection to semiconductors chips was first given in the US through Semiconductor Chip
Protection Act (SCPA) in 1984 and its impact was felt virtually throughout the world.
Japan introduced similar protection in 1985, viz., Japanese Circuit Layout Right Act
(JCLRA). An EC Directive3, with implementing legislation in all Member States of the
EU accelerating international efforts resulting in formulation of 1989 Treaty on
Intellectual Property in Respect of Integrated Circuits (IPIC Treaty) under the auspices of
WIPO. The IPIC Treaty was later became the part of TRIPS Agreement4.
Hence, a step was taken by various organizations to pass regulations regarding this issue.
One such was the World Trade Organization, and the result was the TRIPS agreement
addressing the intellectual property related issues. India being a signatory of the WTO
also passed an Act in conformity with the TRIPS agreement called the Semiconductor
Integrated Circuits Layout-Design Act (SICLDA) passed in the year 2000.
7. TRADE SECRETS
The importance of trade secret in the ambit of intellectual property has gained widespread
recognition so much so that trade secret protection of working technologies has taken
precedence over protection through patents. North Atlantic Free Trade Agreement
(NAFTA) and Agreement on Trade Related Aspects of Intellectual Property (TRIPs; Art.
39) include specific provisions directed towards increasing the protection of trade secrets.
Prior to these agreements, Article 10bis of the Paris Convention (covering unfair
competition) provides support for international standards of trade secret protection.
3 Rajkumar Dubey, India: Semiconductor Integrated Circuits Layout Design In Indian IP Regime,
http://www.mondaq.com/india/x/28601/technology/Semiconductor+Integrated+Circuits+Layout+Design+In+In
dian+IP+Regime, Last visited on 18th October, 2016.

4 Atul Gupta, Integrated Circuits And IPR in India,

http://nopr.niscair.res.in/bitstream/123456789/3604/1/JIPR%2011(6)%20397408.pdf, Last visited on 18th October, 2016.
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Trade secrets used to be protected in India either through contract law or through the
equitable doctrine of breach of confidentiality5. But in 2008, the Indian Parliament
enacted an Act called National Innovation Act 2008 to protect the trade secrets under its
ambit.

5 Manisha Singh Nair, India: Protection Of Trade Secret,

http://www.mondaq.com/india/x/52466/Trade+Secrets/Protection+Of+Trade+Secret, Last visited on 19th
October 2016.

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CONCLUSION
The Indian IP regime has taken great strides towards the increased protection and
enforcement of IP rights. Protection of Intellectual Properties is a very critical element in the
offshore business model. The Indian IP regime has come a long way in recent years, IP rights
in India has never looked more positive. With the Indian judiciary 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 exploring unchartered waters to obtain unique
remedies from the courts. Although the benefits of specialised IP courts are still under debate
in India. While much still remains to be done regarding the criminal justice system, the Indian
civil system for the protection of IP rights is improving daily. Although recent substantive
developments have reaped significant rewards for IP owners in India, there are still
unchartered waters waiting to be explored in the worldwide IP pool.

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