Intellectual Property Rights (Ipr) : October 2018

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INTELLECTUAL PROPERTY RIGHTS (IPR)
Article · October 2018

DOI: 10.20959/wjpps20166-7102
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WORLD JOURNAL OF PHARMACY AND PHARMACEUTICAL SCIENCES
Savale et al. World Journal of Pharmacy and Pharmaceutical Sciences
SJIF Impact Factor 6.041
Volume 5, Issue 6, 2529-2559 Review Article ISSN 2278 – 4357
INTELLECTUAL PROPERTY RIGHTS (IPR)
Sagar Kishor Savale1* and Varsha Kishor Savale2
1
Department of Pharmaceutics, R. C. Patel Institute of Pharmaceutical Education and
Research, Shirpur 425405, Dist. Dhule Maharashtra State, India.
2
Department of Mechanical Engineering, R. C. Patel Institute of technology and
Research, Shirpur 425405, Dist. Dhule Maharashtra State, India.
Article Received on ABSTRACT

22 April 2016,
Intellectual Property Right is exclusive right is granted by government
Revised on 13 May 2016,
Accepted on 01 June 2016, of India for protection originality of work of inventor. Simple
DOI: 10.20959/wjpps20166-7102 intellectual property right is intangible creation of human mind. In this
intellectual Property right includes in Patent, Trademark, Trades crates,
*Corresponding Author Industrial design, Layout design and Copyright oriented rights.
Sagar Kishor Savale Intellectual right is important for maintaining the quality, safety,
Department of
efficacy of any Pharmaceutical product and services. It is certification
Pharmaceutics, R. C. Patel
authority and standard authority for certification and identification of
Institute of
Pharmaceutical Education product in would wide market. This intellectual property right is the
and Research, Shirpur rights given to people over the creation of their minds. They usually
425405, Dist. Dhule give the creator an exclusive right over the use of his/her creations for
Maharashtra State, India.
a certain period of time. Intellectual property refers to creations of the
mind, inventions in artistic, literary, scientific and industrial field. It is important application
for Protection of invention of inventor and maintaining the quality as well as standard of
work of inventor. the present review describes The Basic concept in IPR, Objectives in IPR,
Type of IPR (Patents, Trademarks, Copyrights And Related Rights, Geographical Indications,
Industrial Designs, Trade Secrets, Layout Design For Integrated Circuits, Protection of New
Plant Variety), Duration of Intellectual Property Rights, Concept Related Patents (Types of
Patent, Tangible And Intangible Property, Novelty, Non-Obviousness, Utility, Anticipation,
Prior Art, Global Perspective Of Patent System, Role Of International Organization, Indian
Patent Act 1970, Patentability, Patent Infringement, Commercialization, Patent Licensing),
Applications of IPR.
www.wjpps.com Vol 5, Issue 6, 2016. 2529

KEYWORDS: Patent, Copyright, Trademark, Integrated Circuits, Patentability,

Infringement, Commercialization, Novelty.
INTRODUCTION[1,2,3]
Intellectual Property Rights are legal rights, which result from intellectual activity in
industrial, scientific, literary & artistic fields. These rights Safeguard creators and other
producers of intellectual goods & services by granting them certain time-limited rights to
control their use. Protected IP rights like other property can be a matter of trade, which can be
owned, sold or bought. These are intangible and nonexhausted consumption.
BASIC CONCEPT IN IPR[4,5]

 Intellectual property is an intangible creation of the human mind, usually expressed or
translated into a tangible form that is assigned certain rights of property.
 Examples of intellectual property include an author's copyright on a book or article, a
distinctive logo design representing a soft drink company and its products, unique design
elements of a web site, or a patent on the process to manufacture chewing gum.
 Intellectual property rights (IPR) can be defined as the rights given to people over the
creation of their minds. They usually give the creator an exclusive right over the use of
his/her creations for a certain period of time.
 Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic
works, and symbols, names, images, and designs used in commerce.
OBJECTIVES OF IPR[6,7,8,9]
 Intellectual property Right (IPR) is a term used for various legal entitlements which
attach to certain types of information, ideas, or other intangibles in their expressed form.
 The holder of this legal entitlement is generally entitled to exercise various exclusive
rights in relation to the subject matter of the Intellectual Property.
 The term intellectual property reflects the idea that this subject matter is the product of
the mind or the intellect, and that Intellectual Property rights may be protected at law in
the same way as any other form of property.
 Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition,
registration or enforcement of IP rights must be pursued or obtained separately in each
territory of interest.

 Intellectual property rights (IPR) can be defined as the rights given to people over the
creation of their minds. They usually give the creator an exclusive right over the use of
his/her creations for a certain period of time.
TYPES OF IPR[10,11,12,13,14,15,16,17,18,19,20]
 Patents
 Trademarks
 Copyrights and related rights
 Geographical indications
 Industrial designs
 Trade secrets
 Layout design for integrated circuits
 Protection of new plant variety
PATENTS
A patent is an exclusive right granted for an invention, which is a product or a process that
provides a new way of doing something, or offers a new technical solution to a problem. It
provides protection for the invention to the owner of the patent. The protection is granted for
a limited period, i.e. 20 years. Patent protection means that the invention cannot be
commercially made, used, distributed or sold without the patent owner's consent. A patent
owner has the right to decide who may - or may not - use the patented invention for the
period in which the invention is protected. The patent owner may give permission to, or
license, other parties to use the invention on mutually agreed terms. The owner may also sell
the right to the invention to someone else, who will then become the new owner of the patent.
Once a patent expires, the protection ends, and an invention enters the public domain, that is
the owner no longer holds exclusive rights to the invention, which becomes available to
commercial exploitation by others. All patent owners are obliged, in return for patent
protection, to publicly disclose information on their invention in order to enrich the total body
of technical knowledge in the world. Such an ever-increasing body of public knowledge
promotes further creativity and innovation in others. In this way, patents provide not only
protection for the owner but valuable information and inspiration for future generations of
researchers and inventors.

What Can Be Patented

Product, Process, Machine, Manufacture, Composition of Matter.
TRADEMARKS
A trademark is a distinctive sign that identifies certain goods or services as those produced or
provided by a specific person or enterprise. It may be one or a combination of words, letters,
and numerals. They may consist of drawings, symbols, three- dimensional signs such as the
shape and packaging of goods, audible signs such as music or vocal sounds, fragrances, or
colours used as distinguishing features. It provides protection to the owner of the mark by
ensuring the exclusive right to use it to identify goods or services, or to authorize another to
use it in return for payment. It helps consumers identify and purchase a product or service
because its nature and quality, indicated by its unique trademark, meets their needs.
Registration of trademark is prima facie proof of its ownership giving statutory right to the
proprietor. Trademark rights may be held in perpetuity. The initial term of registration is for
10 years; thereafter it may be renewed from time to time.
COPYRIGHTS AND RELATED RIGHTS

Copyright is a legal term describing rights given to creators for their literary and artistic
works. The kinds of works covered by copyright include: literary works such as novels,
poems, plays, reference works, newspapers and computer programs; databases; films, musical
compositions, and choreography; artistic works such as paintings, drawings, photographs and
sculpture; architecture; and advertisements, maps and technical drawings. Copyright subsists
in a work by virtue of creation; hence it‘s not mandatory to register. However, registering a
copyright provides evidence that copyright subsists in the work & creator is the owner of the
work. Creators often sell the rights to their works to individuals or companies best able to
market the works in return for payment. These payments are often made dependent on the
actual use of the work, and are then referred to as royalties. These economic rights have a
time limit, (other than photographs) is for life of author plus sixty years after creator‘s death.
GEOGRAPHICAL INDICATIONS
GI are signs used on goods that have a specific geographical origin and possess qualities or a
reputation that are due to that place of origin? Agricultural products typically have qualities
that derive from their place of production and are influenced by specific local factors, such as
climate and soil. They may also highlight specific qualities of a product, which are due to
human factors that can be found in the place of origin of the products, such as specific

manufacturing skills and traditions. A geographical indication points to a specific place or

region of production that determines the characteristic qualities of the product that originates
therein. It is important that the product derives its qualities and reputation from that place.
Place of origin may be a village or town, a region or a country. It is an exclusive right given
to a particular community hence the benefits of its registration are shared by the all members
of the community. Recently the GIs of goods like Chanderi Sarees, Kullu Shawls, and Wet
Grinders etc have been registered. Keeping in view the large diversity of traditional products
spread all over the country, the registration under GI will be very important in future growth
of the tribes / communities / skilled artisans associated in developing such products.
INDUSTRIAL DESIGNS
Industrial designs refer to creative activity, which result in the ornamental or formal
appearance of a product, and design right refers to a novel or original design that is accorded
to the proprietor of a validly registered design. Industrial designs are an element of
intellectual property. Under the TRIPS Agreement, minimum standards of protection of
industrial designs have been provided for. As a developing country, India has already
amended its national legislation to provide for these minimal standards. The essential purpose
of design law it to promote and protect the design element of industrial production. It is also
intended to promote innovative activity in the field of industries. The existing legislation on
industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve
its purpose well in the rapid changes in technology and international developments. India has
also achieved a mature status in the field of industrial designs and in view of globalization of
the economy, the present legislation is aligned with the changed technical and commercial
scenario and made to conform to international trends in design administration. This
replacement Act is also aimed to enact a more detailed classification of design to conform to
the international system and to take care of the proliferation of design related activities in
various fields.
TRADE SECRETS
It may be confidential business information that provides an enterprise a competitive edge
may be considered a trade secret. Usually these are manufacturing or industrial secrets and
commercial secrets. These include sales methods, distribution methods, consumer profiles,
and advertising strategies, lists of suppliers and clients, and manufacturing processes.
Contrary to patents, trade secrets are protected without registration. A trade secret can be

protected for an unlimited period of time but a substantial element of secrecy must exist, so
that, except by the use of improper means, there would be difficulty in acquiring the
information. Considering the vast availability of traditional knowledge in the country the
protection under this will be very crucial in reaping benefits from such type of knowledge.
The Trades secret, traditional knowledge are also interlinked / associated with the
geographical indications.
LAYOUT DESIGN FOR INTEGRATED CIRCUITS

Semiconductor Integrated Circuit means a product having transistors and other circuitry
elements, which are inseparably formed on a semiconductor material or an insulating material
or inside the semiconductor material and designed to perform an electronic circuitry function.
The aim of the Semiconductor Integrated Circuits Layout Design Act 2000 is to provide
protection of Intellectual Property Right (IPR) in the area of Semiconductor Integrated
Circuit Layout Designs and for matters connected therewith or incidental thereto. The main
focus of SICLD Act is to provide for routes and mechanism for protection of IPR in Chip
Layout Designs created and matters related to it. The SICLD Act empowers the registered
proprietor of the layout-design an inherent right to use the layout-design, commercially
exploit it and obtain relief in respect of any infringement. The initial term of registration is
for 10 years; thereafter it may be renewed from time to time. Department of Information
Technology Ministry of Communications and Information Technology is the administrative
ministry looking after its registration and other matters.
PROTECTION OF NEW PLANT VARIETY

The objective of this act is to recognize the role of farmers as cultivators and conservers and
the contribution of traditional, rural and tribal communities to the country‘s agro biodiversity
by rewarding them for their contribution and to stimulate investment for R & D for the
development new plant varieties to facilitate the growth of the seed industry. The Plant
Variety Protection and Farmers Rights act 2001 was enacted in India to protect the New Plant
Variety; the act has come into force on 30.10.2005 through Authority. Initially 12 crop
species have been identified for regt. i.e. Rice, Wheat, Maize, Sorghum, Pearl millet,
Chickpea, Green gram, Black gram, Lentil, Kidney bean etc. India has opted for sui- generic
system instead of patents for protecting new plant variety. Department Agriculture and
Cooperation is the administrative ministry looking after its registration and other matters.

DURATION OF INTELLECTUAL PROPERTY RIGHTS[21,22,23]

 Term of every patent will be 20 years from the date of filing of patent application,
irrespective of whether it is filed with provisional or complete specification. Date of
patent is the date on which the application for patent is filed.
 Term of every trademark registration is 10 years from the date of making of the
application which is deemed to be the date of registration.
 Copyright generally lasts for a period of sixty years.
 The registration of a geographical indication is valid for a period of 10 years.
 The duration of registration of Chip Layout Design is for a period of 10 years counted
from the date of filing an application for registration or from the date of first commercial
exploitation anywhere in India or in any convention country or country specified by
Government of India whichever is earlier.
 The duration of protection of registered varieties is different for different crops namely 18
years for trees and vines, 15 years for other crops and extant varieties.
CONCEPT RELATED PATENTS

1. TYPES OF PATENT[24,25,26]
UTILITY PATENT
 If you have a new, useful invention that is not obvious to others in the field of invention,
you may qualify for a utility patent. Utility patents are grouped in five categories: a
process, a machine, a manufacture, a composition of matter, or an improvement of an
existing idea.
 Often, an invention will fall into more than one of the categories. For instance, computer
software can usually be described both as a process (the steps that it takes to make the
computer do something) and as a machine (a device that takes information from an input
device and moves it to an output device).
 Regardless of the number of categories in which an invention falls, only one utility patent
may be issued on it.
 Among the many types of creative works that might qualify for a utility patent are
biological inventions; new chemical formulas, processes, or procedures; computer
hardware and peripherals; computer software; cosmetics; electrical inventions; electronic
circuits; food inventions; housewares; machines; and magic tricks. If you acquire a utility
patent, you can stop others from making, using, selling and importing the invention.

 A utility patent last for 20 years from the date that the patent application is filed.
DESIGN PATENT
 If you create a new and original design that ornaments a manufactured device, you may
qualify for a design patent.
 Design patents are granted for any new or original Ornamental design for an article of
manufacture. A design patent protects only the appearance of the article and not the
article itself. An inventor can easily register both a utility patent and a design patent.
 A design patent is granted for product designs—for example, an IKEA chair, Keith
Haring wallpaper, or a Manolo Blahnik shoe. You can even get a design patent for a
computer screen icon. There are strings attached to a design patent, too.
 As noted, the design must be ornamental or aesthetic; it can‘t be functional. Once you
acquire a design patent, you can stop others from making, using, selling and importing the
design. You can enforce your design patent for only 14 years after it‘s issued.
PLANT PATENT
 The least-frequently issued type of patent are plant patents—granted for any asexually or
sexually reproducible plants (such as flowers) that are both novel and nonobvious.
 This may include cultivating different types of plants to create mutants or hybrids and
also newly found seedlings. This patent protects the owner by keeping other individuals
or businesses from creating the type of plant or profiting from the plant for at least 20
years from the date of the application
2. TANGIBLE AND INTANGIBLE PROPERTY[27,28]

Property is an external thing that can be owned or possessed. Property can be divided into
two categories: tangible and intangible. The word tangible refers to something that has a
definable physical form that can be felt or touched. The word intangible refers to something
that cannot be perceived by the senses.
Tangible Property
In law is, literally, anything which can be touched, and includes both real property (or, in
civil law systems, immovable property) and personal property (or moveable property), and
stands in distinction to intangible property. In English law and some Commonwealth legal
systems, items of tangible property are referred to as choses in possession (or a chose in
possession in the singular). However, some property, despite being physical in nature, is

classified in many legal systems as intangible property rather than tangible property because
the rights associated with the physical item are of far greater significance than the physical
properties. Principally, these are documentary intangibles. For example, a promissory note is
a piece of paper that can be touched, but the real significance is not the physical paper, but
the legal rights which the paper confers, and hence the promissory note is defined by the legal
debt rather than the physical attributes. A unique category of property is money, which in
some legal systems is treated as tangible property and in others as intangible property. Whilst
most countries legal tender is expressed in the form of intangible property ("The Treasury of
Country X hereby promises to pay to the bearer on demand...."), in practice bank notes are
now rarely ever redeemed in any country, which has led to bank notes and coins being
classified as tangible property in most modern legal systems. Tangible property consists of
real property and personal property. Real property is property that does not move, such as
land and the things that are attached to or built on that land. Personal property is property that
can be moved or any other tangible property that can be owned. Personal property is also
called chattels. Chattels that are attached to the land and that cannot be removed without
damaging the land are called fixtures. Examples of fixtures are built-in bookcases and ceiling
fans.
Intangible Property
Intangible property consists of property that lacks a physical existence. Examples of
intangible property include checking and savings accounts, options to buy or sell shares of
stock, the goodwill of a business, a patent, and spousal love and affection. Also known as
incorporeal property, describes something which a person or corporation can have ownership
of and can transfer ownership of to another person or corporation, but has no physical
substance. It generally refers to statutory creations such as copyright, trademarks, or patents.
It excludes tangible property like real property (land, buildings and fixtures) and personal
property (ships, automobiles, tools, etc.). In some jurisdictions intangible property are
referred to as choses in action. Intangible property is used in distinction to tangible property.
It is useful to note that there are two forms of intangible property - legal intangible property
(which is discussed here) and competitive intangible property (which is the source from
which legal intangible property is created but cannot be owned, extinguished, or transferred).
Competitive intangible property disobeys the intellectual property test of voluntary
extinguishment and therefore results in the sources that create intellectual property
(knowledge in its source form, collaboration, process-engagement, etc) escaping

quantification. Generally, ownership of intangible property gives the owner a set of legally
enforceable rights over reproduction of personal property containing certain content. For
example, a copyright owner can control the reproduction of the work forming the copyright.
However, the intangible property forms a set of rights separate from the tangible property that
carries the rights. For example, the owner of a copyright can control the printing of books
containing the content, but the book itself is personal property which can be bought and sold
without concern over the rights of the copyright holder. In English law and other
Commonwealth legal systems, intangible property is traditionally divided in pure intangibles
(such as debts, intellectual property rights and goodwill) and documentary intangibles, which
obtain their character through the medium of a document (such as a bill of lading, promissory
note or bill of exchange). The recent rise of electronic documents has blurred the distinction
between pure intangibles and documentary intangibles.
3. NOVELTY (New invention)[29,30]

Novelty is a patentability requirement. An invention is not new and therefore not patentable if
it was known to the public before the date of filing of the patent application, or before its date
of priority if the priority of an earlier patent application is claimed. The purpose of the
novelty requirement is to prevent the prior art from being patented again.
Relationship between Novelty and non-obviousness

To understand the relationship between novelty and non-obviousness (inventive level), the
starting point should be a definition of the concepts. Some elementary and imprecise notions
can be assumed at this stage, without yet attempting to examine the matter in depth. It can be
said that an invention is new (novel) when it differs from the prior art. Not much difference is
required; a small difference is sufficient simply, an invention A‘ is new when is different
from the prior art A. A‘≠A. It can be said that an invention is Non-obvious (or possesses
inventive level) when it is sufficiently different from the prior art. A‘ is non-obvious when it
is significantly different from the prior art A (A‘ ≠ A). At this point, one might wonder
whether the concept of novelty should really be maintained and investigated. In fact, since a
simple novelty is not sufficient, and a qualified or enhanced novelty (non-obviousness) is
necessary.
Rationales
A patent grants an inventor a legally enforceable monopoly over their invention. This means
that others can be legally restrained from exploiting the invention. It is not the intention of the

patent system to deny anyone what they have been free to do before someone claims an
invention. For example, one cannot patent the wheel, as that would exclude others from doing
what they had previously been free to do. The legal test is that the invention must be
something new, i.e. it must possess ―novelty‖. The invention of the wheel is not new, because
the wheel already forms part of the prior art.
4. NON-OBVIOUSNESS (Inventive step)[31,32]

The inventive step and non-obviousness reflect a general patentability requirement present in
most patent laws, according to which an invention should be sufficiently inventive i.e., non-
obvious in order to be patented. In other words, the non obviousness principle asks whether
the invention is an adequate distance beyond or above the state of the art. The expression
―inventive step‖ is predominantly used in Europe, while the expression ―non-obviousness‖ is
predominantly used in United States patent law. The expression ―inventiveness‖ is sometimes
used as well. Although the basic principle is roughly the same, the assessment of the
inventive step and non-obviousness varies from one country to another. For instance, the
practice of the European Patent Office (EPO) differs from the practice in the United
Kingdom.
5. UTILITY (Usefulness of Patent application)[33,34]

A Patent on New Invention both are useful and existed from other different product is known
has Utility of Patent. In a world where obtaining value for money has become even more
important than in the past, it may be useful to look for alternatives to the traditional way of
doing things. For some types of invention, use of a petty patent or utility model as a means of
protection may be a useful alternative to patent protection in many countries. Obtaining
protection this way is often much less expensive than proceeding through the traditional
patent route and, as noted below, in several countries has an advantage in its own right. Until
the 1990's, utility model protection was regarded as being something of a curiosity in the
intellectual property world. It is true that the Washington revision of the Paris Convention in
1910 had recognized utility models as a species of industrial property right, but in his 1975
book on National and International Protection of Patents, Trademarks and Related Rights, Dr.
Stephen Ladas listed as having this form of protection only in Brazil, Germany, Italy, Japan,
the Philippines, Poland, Portugal, South Korea, Spain and Taiwan. Since then, however,
many countries have adopted protection of this type or some other form of "second tier"
protection for useful articles or other invention.

Utility criteria
In considering the requirement of utility for patents, there are three main factors to review:
operability of the invention, a beneficial use of the invention, and practical use of the
invention.
6. ANTICIPATION (Disclosure of the claimed invention by another)[35,36]

In patent law, anticipation refers to the prior invention or disclosure of the claimed invention
by another, or the inventor's own disclosure of the claimed invention by publication, sale, or
offer to sell prior to the inventor's application for a patent. In other words, if someone else has
known about or used the invention before the patent applicant applies for a patent, that patent
applicant will not be entitled to a patent. Anticipation is a ground for invalidating or rejecting
a patent because it means that the claimed invention lacks novelty. Patent invalidity based on
lack of novelty, or anticipation, requires that the invention was known or used by others
before it was invented by the patentee.
7. PRIOR ART (State of the art or Background art) (Non Patentable Data) [37, 38, 39]
Prior art (state of the art or background art), in most systems of patent law, constitutes
all information that has been made available to the public in any form before a given date that
might be relevant to a patent's claims of originality. If an invention has been described in the
prior art, a patent on that invention is not valid. Information kept secret, for instance, as
a trade secret, is not usually prior art, provided that employees and others with access to the
information are under a non-disclosure obligation. With such an obligation, the information is
typically not regarded as prior art. Therefore, a patent may be granted on an invention,
although someone else already knew of the invention. A person who used an invention in
secret may in some jurisdictions be able to claim "prior user rights" and thereby gain the right
to continue using the invention. As a special exception, earlier-filed and unpublished patent
applications do qualify as prior art as of their filing date in certain circumstances. To
anticipate the subject-matter of a patent claim, prior art is generally expected to provide a
description sufficient to inform an average worker in the field (or the person skilled in the art)
of some subject matter falling within the scope of the claim. Prior art must be available in
some way to the public, and in many countries, the information needs to be recorded in a
fixed form somehow. Prior art generally does not include unpublished work or mere
conversations (though according to the European Patent Convention, oral disclosures also
form prior art—Patents disclose to society how an invention is practiced, in return for the

right (during a limited term) to exclude others from manufacturing, selling, offering for sale
or using the patented invention without the patentee's permission. Patent office‘s deal with
prior art searches in the context of the patent granting procedure.
TYPES OF PRIOR ART

1. Novelty: A "novelty search" is a prior art search that is often conducted by patent
attorneys, patent agents or professional patent searchers before an inventor files a patent
application. A novelty search helps an inventor to determine if the invention is novel
before the inventor commits the resources necessary to obtain a patent. The search may
include searching in databases of patents, patent applications and other documents such
as utility models and in the scientific literature. Novelty searches can also be used to help
an inventor determine what is unique about his/her invention. Anything not found in the
prior art can be potentially patentable. Thomas Edison, for example, did not get a patent
on the basic concept of the light bulb. It was already patented and therefore in the prior
art. Instead, Edison got a patent on his improvements to the light bulb. These
improvements included a very thin filament and a reliable technique for joining the white
hot filament to the room temperature lead wires. A novelty is also conducted by patent
examiners during prosecution of the patent application. For instance, examiner's search
guidelines applicable to the United States are found in the U.S. Manual of Patent
Examining Procedure (MPEP) 904.02 General Search Guidelines, Prior Art,
Classification, and Search.
2. Validity: A "validity search" is a prior art search done after a patent issues. The purpose
of a validity (or invalidity) search is to find prior art that the patent examiner overlooked
so that a patent can be declared invalid. This might be done by an entity infringing, or
potentially infringing, the patent, or it might be done by a patent owner or other entity that
has a financial stake in a patent to confirm the validity of a patent. Crowdsourcing, where
a large number of interested people search for prior art, may be effective where references
would otherwise be difficult to find.
3. Clearance: A clearance search is a search of issued patents to see if a given product or

process violates someone else's existing patent. If so, then a validity search may be done
to try to find prior art that would invalidate the patent. A clearance search is a search
targeting patents being in force and may be limited to a particular country and group of
countries, or a specific market.

8. GLOBAL PERSPECTIVE OF PATENT SYSTEM[40,41,42]

In the United States, patent infringement lawsuits filed by non-practicing entities continue to
rise. A non-practicing entity (NPE) is an entity that does not manufacture products
themselves and broadly includes universities, individual inventors, research institutions and
speculators who purchase patents from others. According to Patent Freedom, based on the
largest patent holdings, the top 5 NPEs are Intellectual Ventures, Inter digital, Round Rock
Research LLC, Wisconsin Alumni Foundation and Rock star Consortium LLC. Some refer
to many or all NPEs as ―patent trolls‖ arguing these patent holders wait until another party
brings a product to market and then jump out from ―under a bridge‖ to a demand a toll
(namely, a license fee and/or royalty). We at the BRIC Wall Blog thought it would be
interesting to examine patent troll activity in countries other than the U.S. and Europe. In this
post, we examine patent troll activity in Australia, Brazil, Canada, China, India, Japan and
Russia.
9. ROLE OF INTERNATIONAL ORGANIZATION

1. WTO (World Trade Organization)[43,44,45]
History: WTO was born on 1st January 1995 with main objective to improve the welfare of
people of member countries. Its main function is to ensure that trade flows as smoothly,
predictably & freely as possible.
Evolution of WTO: 1. Breetonwood Conference 1944.

2. General Agreement on Tariffs & Trade (GATT Agreement).
1. Breetonwood Conference 1944: To overcome recession after post World War II group
of 44 nations met in Breetonwood, New Hampshire, England to discuss the establishment of
an organization, which will help restoring the international trade.
2. General Agreement on Tariffs & Trade (GATT Agreement): GATT was
established in 1948 in Geneva.
Objective
 Increase international trade by reducing and rationalizing the tariffs.
 GATT had no solid legal foundation.
 It was dealing only with the trade of goods analyzing the tariffs.

Structure
 The highest WTO authority is the Ministerial Conference which meets every two years.
 The day-to-day work of the WTO, falls to a number of subsidiary bodies, principally the
General Council.
 The General Council delegates responsibility to three other major bodies - Councils for
Trade in Goods, Trade in Services and Trade-Related Aspects of Intellectual Property
Rights.
Secretariat and budget

The WTO Secretariat is located in Geneva. It has around 450 staff and is headed by its
Director-General, Renato Ruggiero, and four Deputy Directors-General.
WTO functions
 To oversee implementing and administering WTO agreements.
 To provide a forum for negotiations.
 To provide a dispute settlement mechanism.
 To administer trade agreements.
 To review national trade policies.
 To assist developing countries in trade policy issues.
 To cooperate with other international organizations.
 Ensure trade flows smoothly.
 Provide developing countries with trade related training programs.
Goals
 Raising standards of living
 Ensuring full employment
 Ensuring large and steadily growing real incomes and demand
 Expanding the production and trade in goods and services
Core principle
The principle of national treatment requires that the goods and services of other countries be
treated in the same way as those of your own country. If special treatment is given to the
goods and services of one country, they must be given to all WTO member countries. No one
country should receive favors that distort trade.

2. WIPO (World Intellectual Property Organization)[46,47,48]

 The World Intellectual Property Organization (WIPO) was established in 1970.
 The Organization became a specialized agency of the United Nations in 1974.
 The Director General is Francis Gurry.
 Based in Geneva, with an international staff of some 1,300 employees, WIPO counts 184
Member States – more than 90 percent of the world‘s countries.
 WIPO is dedicated to developing a balanced and accessible international intellectual
property (IP) system, which rewards creativity, stimulates innovation and contributes to
economic development while safeguarding the public interest.
Strategic Goals
 Balanced Evolution of the International Normative Framework for IP.
 Provision of Premier Global IP Services.
 Facilitating the Use of IP for Development.
 Coordination and Development of Global IP Infrastructure.
 World Reference Source for IP Information and Analysis.
 International Cooperation on Building Respect for IP.
 Addressing IP in Relation to Global Policy Issues.
 A Responsive Communications Interface between WIPO, its Member States and All
Stakeholders.
 An Efficient Administrative and Financial Support Structure to Enable WIPO to Deliver
its Programs.
Core Tasks of WIPO

 Developing international IP laws and standards.
 Delivering global IP protection services.
 Encouraging the use of IP for economic development.
 Promoting a better understanding of IP.
 Providing a forum for debate.
Functions of WIPO
 Harmonize national intellectual property legislation and procedures.
 Provide services for international applications for industrial property rights.
 Exchange intellectual property information.

 Provide legal and technical assistance to developing and other countries.

 Facilitate the resolution of private intellectual property disputes.
 Marshal information technology as a tool for storing, accessing, and using valuable
intellectual property information
3. EPO (European Patent Organization)[49]

 A controllable, accountable Organization.
 Governed by a body where all 30 member states are equally represented.
 After publication of application, full transparency.
 After publication of application, multiple intervention mechanisms available (submissions
of third parties, oral proceedings, opposition)
 Final say on infringement and validity remains with national courts.
 Committed to European patent law standards and to decisions of the European political
leadership.
The Role and Functions of the EPO

 European Patent Office, the executive branch of the European Patent Organization
 Implementing the European Patent Convention
 Overriding principle: patents stimulate innovation and economy
 Giving effect to the decisions of the political leadership.
Role of EPO in granting patent

 In carrying out its mission.
 Set patent protection standards.
 Set a benchmark for best patent practice.
 Help to promote a knowledge-based society in Europe.
 Stand out as a model international public service organization.
10. INDIAN PATENT ACT 1970[50,51,52]

History of Patent Acts in India:
In India the grant of patents is governed by the patent act 1970 and rules 1972 which is
operative in the whole of India.
1856 Act for protection of inventions on the basis of British law of 1852
1859 Patent monopolies called exclusive privileges (14 year)
1872 Patents and Designs Act

1883 Protection of Inventions Act

1888 Inventions and Designs Act
1911- Modern patent era by Patents and Designs Act. First time an
1947 authority call Controller General of Patents appointed
1959 Justice Ayyangar‘s report
1967 Patent Act bill introduced in the Parliament
1970 The Patents Act passed by the parliament
1972 The Patents Act-1970 came into force on April 20, 1972
Amendment by ordinance to include Exclusive Marketing Rights
1994
(EMR‘s)
Amendment passed by the parliament. New patent amendment bill
1999
referred to select committee
Patents Act 1970 with second amendment comes into force
2003
Patent Act 1970 (2005 Amendment) comes in to force from 1-1-
2005
2005
Purpose of getting a patent

To enjoy the exclusive rights over the invention. The patent is to ensure commercial returns
to the inventor for the time and money spend in generating a new product.
Patent Law - Salient Features

 Both product and process patent provided
 Term of patent – 20 years
 Examination on request
 Both pre-grant and post-grant opposition
 Fast track mechanism for disposal of appeals
 Provision for protection of bio-diversity and traditional knowledge
 Publication of applications after 18 months with facility for early publication
 Substantially reduced time-lines
Safeguards in the Patent Law

Compulsory license to ensure availability of drugs at reasonable prices, Provision to deal with
public health emergency, Revocation of patent in public interest and also on security
considerations.
Patentable Inventions: Invention must

 Relates to a process or product or both
 Be new (novel)
 Involves an inventive step

 Be capable of industrial application

 Not fall under section 3 and 4
Section 3 exclusions
Section 3(a): Inventions contrary to well established natural laws.
Examples: Machine that gives more than 100% performance, perpetual machine.
Section 3(b): Commercial exploitation or primary use of inventions, which is
Contrary to: public order or Morality.
Examples: Gambling machine, Device for house-breaking.
Section 3(b): Commercial exploitation or primary use of inventions, which

Causes serious Prejudice to: health or human, animal, plant life or to the environment
Examples: Biological warfare material or device, weapons of mass destruction, Terminator
gene technology, embryonic stem cell.
Non Patentable Inventions: Inventions falling within Section 20(1) of the Atomic Energy
Act, 1962 are not patentable
Eg: Inventions relating to compounds of Uranium, Beryllium, Thorium, Plutonium, Radium,
Graphite, Lithium and more as notified by Central Govt. from time to time.
Procedure for grant of Patent

 Filing an application for a patent
 Examination of application
 Acceptance of the application
 Opposition to grant of patent
 Grant and sealing of patents.
Offences and penalties

Offences Penalties
Contravention of secrecy provisions
Up to 2 years imprisonment or fine or both
relating to certain inventions
Falsification of entries in register Up to 2 years imprisonment or fine or both
For refusal fine up to Rs.1000
Refusal or failure of supply information. For supply of false information up to 6
month imprisonment
Rs.500 fine for first offence and Rs.2000
Practice by non registered patent agent
fine for subsequent offence

11. PATENTABILITY[53, 54]

The context of a national or multilateral body of law, an invention is patentable if it meets the
relevant legal conditions to be granted a patent. By extension, patentability also refers to the
substantive conditions that must be met for a patent to be held valid.
Requirements
The patent laws usually require that, for an invention to be patentable, it must be:
1. Patentable subject matter, i.e., a kind of subject matter eligible for patent protection
2. Novel (i.e. at least some aspect of it must be new)
3. Non-obvious (in United States patent law) or involve an inventive step (in European
patent law)
4. Useful (in U.S. patent law) or be susceptible of industrial application (in European patent
law.
Usually the term "patentability" only refers to ―substantive‖ conditions, and does not refer to
formal conditions such as the "sufficiency of disclosure", the "unity of invention"
Or the "best mode requirement". Judging patentability is one aspect of the official
examination of a patent application performed by a patent examiner and may be tested in
post-grant patent litigation. Prior to filing a patent application, inventors sometimes obtain a
patentability opinion from a patent agent or patent attorney regarding whether an invention
satisfies the substantive conditions of patentability.
12. PATENT INFRINGEMENT[55,56,57]

Patent Infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention
without permission from the patent holder. It occurs when someone violates the patent rights
an inventor has in his invention by making, using or selling the invention without the patent
owner‘s permission (or if the patent has been licensed), in a way not permitted by the license.
Types of Patent Infringement

Direct Infringement
It directly states that the third party has willfully or intentionally stole the technology from
the inventor without his prior permission. It occurs when someone directly makes, uses or
sells the patented invention within the United States.

It can includes, manufacture patented technology; use patented technology; offer patented
technology for sale; sell patented technology; import patented technology; pass off the
patented.
Indirect Infringement
It refers to the unfair practice that does not give a clear indication that the patent is bought
and sold in the market. It occurs, for instance, when a device is claimed in a patent and a third
party supplies a product which can only be reasonably used to make the claimed device.
It can includes
Sell parts that can only be realistically used for a patented invention; sell an invention with
instructions on using a certain method that infringes on a method patent; license an invention
that is covered by another‘s patent; sell material components that have been especially made
for use in a patented invention and have no other commercial use.
Basic Features of Patent Infringement

Objects of Infringement The patents must be valid
The infringers must infringe with the
Infringement behavior
purpose of operation or production
The behavior is carried out without the
Violation of legal rules
permission of patentees
Possible Consequences of Patent Infringement

A huge barrier for independent innovation; Great challenge to the social civilization and
sanctity of the law, A damage to the economic laws and law of value, An illegal behavior that
destroys the fair and orderly market competitive order.
How to Judge Patent Infringement: (Compare Patent Claims)

Five Principals: 1. Doctrine of Equivalents 2. Doctrine of Complete Coverage 3. Doctrine of
Compromise 4. Doctrine of Estoppel 5. Doctrine of Superfluity.
How to Judge Patent Infringement: A determination of patent infringement involves a
two-step process: 1. the claims are analyzed by studying all the relevant patent documents.
2. The claims must ―read on‖ the accused device or process. In a word, the claims are tested
to see whether they describe the accused infringement.

Remedies of Patent Infringement

Monetary Relief: Compensatory damages: a patent owner may recover lost profits or
infringement.
Increased damages: up to three times the compensatory damages can be recovered in cases
of willful or deliberate infringement.
Equitable Relief: Preliminary injunctions, Permanent injunctions.
Cost & Attorney’s Fees: Costs are typically recoverable and in rare cases where there has
been willful infringement, so are attorney‘s fees.
Several Cases of Patent Infringement

Event: Huawei filed lawsuits in Germany, France and
Time: 2011 Hungary against ZTE for infringing a series of its
patents relating to data card and LTE technologies.
Event: Apple filed a lawsuit against HTC for
Time: 2010 infringing on 20 Apple patents related to the iPhone‘s
user interface, underlying architecture and hardware.
Event: Nokia sued Apple for violation of 10 patents it
Time: 2009
holds on several wireless technologies.
13. REVOCATION OF PATENT (OPPOSITION)[58,59,60,61]

 Revocation: Request to revoke a granted patent.
 Opposition: Right to oppose grant of a patent.
 Revocation means "cancellation” Revocation of an offer means its withdrawal by the
offer or.
 An offer may be revoked at any time before the offeree accepts it.
 Revocation of an offer after acceptance will be ineffective. If it is to be effective, it must
be communicated before the dispatch of the letter of acceptance.
 Section 5 lays down "a proposal may be revoked at any time before the
communication of its acceptance as against the proposer". An offer is made
irrevocable by acceptance. Revocation may be express or implied.
For example, Mr. Suresh proposes to Mr. Anil that he will sell his Bajaj scooter. Mr.
Suresh can revoke his offer before Mr. Anil posts his letter of acceptance.

14. COMMERCIALIZATION[62,63,64,65,66,67]
Definition of Commercialization
The process by which a new product or service is introduced into the general market.
Commercialization is broken into phases, from the initial introduction of the product through
its mass production and adoption. It takes into account the production, distribution,
marketing, sales and customer support required to achieve commercial success. As a strategy,
commercialization requires that a business develop a marketing plan, determine how the
product will be supplied to the market and anticipate barriers to success.
IP Commercialization
Monetizing IP through Licensing and Patent Sale, In line with the value enhancement of
Intellectual Property, IP Commercialization has become a more relevant topic than ever
before. According to a recent study, the value of a company largely consists of their IP
Assets which sometimes even make up 80% of a company‘s value. However, companies
often do not possess proper knowledge about the real value of their patent portfolio. In
addition, companies and individuals often have missing knowledge of optimal IP
commercialization methods. Basic Guidelines for a Potential IP Commercialization If
inventors or companies decide for a better commercialization of their IP assets, they should
first make some basic estimations about their IP commercialization possibilities. This
includes the reach and validity of the patents as well as the economic sector of the protected
innovations and its potential growth prospects. If the patent secures a competitive edge for a
company it is of especially high value for potential IP commercialization. Sometimes it is
even possible that a patented innovation represents a strong competitive edge for a company.
Furthermore cases of patent infringements are proof of a high patent value as well. In general,
if a patent is highly demanded then there are also good prospects for stronger IP
commercialization. While internal use of patents is a key method of commercializing them,
sale and licensing can lead to an even more profitable outcome. Often the case is that
companies own patents of high market value which they had to invest heavily in research.
However, some of those patents are often not key to the core business or by their owners. In
such cases in particular IP commercialization makes a lot of sense for patent owners, since
this can turn into a profitable business for them. In doubt, companies should consult an IP
specialist.

Munich Innovation Group Supports Successful IP Commercialization

Although IP commercialization has become an attractive option it is not an easy task to
manage, and requires some proficiency. In Germany in particular and Europe in general,
Munich Innovation has emerged as a market leading company, renowned for working
exclusively success-based. This means that you can monetize your patent based on a fully
contingent revenue share agreement and with absolutely no costs to you in case of no market
interest.
15. PATENT LICENSING[68,69,70,71,72]

Patent licensing
Monetizing patents with regular patent licensing revenues Inventors who hold a granted
patent have mainly two opportunities of patent monetization. They could either sell the
intellectual property rights of their patent to an interested firm or enter in a patent licensing
agreement. A Patent licensing agreement allows the inventor to regularly receive patent
licensing revenues. Depending on the patent portfolio, patent licensing can sometimes be a
more lucrative agreement than the definitive sale of the intellectual property rights.
Basic guidelines for patent licensing

Basically, inventors who hold granted patent have the opportunity to enter in two kinds of
patent licensing agreements. If the patents of the inventor are currently infringed by a product
on the market, the inventor can enter in a backward patent licensing agreement, in order to
receive backward patent licensing revenues for the years in which the product was using the
patent without a patent licensing agreement. Backward patent licensing agreements require
both marketing and technical analysis in order to identify the potential infringing products
and to establish the infringements. If there are no products currently infringing the patent on
the market then the inventor has the opportunity to enter in a normal patent licensing
agreement with a firm which would be interested by his technology. Patent licensing
agreements also require both marketing and technical analysis in order to identify the
potential buyer and to sell the technology.
Licensing of Intellectual Property Rights; A Vital Component of the Business Strategy

of Your SME: You may be interested in starting a new business, expanding an existing
business (extending your territory or the nature of business) or improving the quality of the
goods or services of your SME and thereby its market position. In many situations, licensing
of intellectual property rights is an effective tool for achieving these business goals. A

licensing agreement is a partnership between an intellectual property rights owner (licensor)

and another who is authorized to use such rights (licensee) in exchange for an agreed
payment (fee or royalty). A variety of such licensing agreements are available, which may
be broadly categorized as follows.
 Technology License Agreement.
 Trademark Licensing and Franchising Agreement.
 Copyright License Agreement.
In practice, all or some of these agreements often form part of one single contract since in
transfers of this nature many rights are involved and not simply one type of intellectual
property right. You may also come across licensing agreements in other circumstances, such
as, during a merger or acquisition, or in the course of negotiating a joint venture. All of these
mechanisms either on their own or in combination will provide your SME, as a licensor or
licensee, a wide variety of possibilities in conducting business in your own country or
elsewhere. As an intellectual property owner and a licensor, your SME can expand its
business to the frontiers of your partners' business and ensure a steady stream of additional
income. As a licensee, your SME can manufacture, sell, import, export, distribute and market
various goods or services which it may be prevented from doing otherwise. In the
international context, a formal licensing agreement is possible only if the intellectual property
right you wish to license is also protected in the other country or countries of interest to you.
If your intellectual property is not protected in such other country or countries then you
would not only not be able to license it, but also you would have no legal right to put any
restriction on its use by anyone else.
16. APPLICATIONS OF IPR[73,74,75,76,77,78,79,81,82,83]

 Intellectual property right is a government right is granted by government of India for
maintaining the quality and standard of drug or drug related product or services.
 Intellectual property right is important to maintain the quality, purity and safety of drug
products.
 Intellectual property right is important for determination of product stability and safety.
 Intellectual property right is applicable for industrial, Pharmaceutical, analytical,
chemical, drug development, drug synthesis and Manufacturing industries.
 Intellectual property right is applicable for companies, industries, Business and
marketing.

 Intellectual property right is applicable for industrial, scientific, literary, artistic field.
 Intellectual property right is applicable of NDA, ANDA and INDA analysis of Drug
Product or Pharmaceutical Formulations.
 Intellectual property right is applicable for testing, analysis, characterizing, the drug
properties and drug quality.
 Intellectual property right is exclusive right is granted by government of India for
protection of invention of inventor.
 It is applicable for Protection of originality or novelty of work of author has a function of
copyright.
 It is act has certification as well as identification mark for identification of product in
would wide market has function of trademark.
 It is important for maintaining protection of patent or business oriented data has function
of Trade secrets.
 It is applicable for Maintaining the utility, designing and Novelty of Patented data.
 It is applicable for determination of law of Indian system or Indian legal system.
 It is important for determination simple ornamental or industrial designing and Layout
oriented semiconductor devices.
 It is Applicable for determination of Anticipation of data as well as Patent data under
prior art or not is conducted by IPR.
 It is having important application for Indian Patent act 1970, and also determination of
Amendment of patent act in 1999, 2002, 2005 and 2006.
 It is applicable for determination of Patent filling and Patent Granting Processes.
 It is applicable for determination of Patent Revocation and Patent Infringements.
 It is applicable for determination of Commercialization and Patent Licensing Processes.
CONCLUSION
Intellectual Property Right is Government Right is granted by the Government of India.
Intellectual Property right is concerned with intellectual activity in industrial, scientific,
literary & artistic fields. These rights Safeguard creators and other producers of intellectual
goods & services by granting them certain time-limited rights to control their use. The rights
given to people over the creation of their minds. They usually give the creator an exclusive
right over the use of his/her creations for a certain period of time. It is exclusive right is
granted by government for protection of Novelty as well as Originality of Patent oriented

Data and Maintaining Quality, Safety, Efficacy and Standard or Certification of drug, Any
Product and Services.
ACKNOWLEDGEMENT
The authors are grateful to Hon. Principal, SES‘s, R. C. Patel Institute of Pharmaceutical
Education and Research, Dr. S. J. Surana sir. A special gratitude to Dr. H.S. Mahajan sir
Head, Dept. of Pharmaceutics and Quality assurance. Without whom and their constant
caring and loving support we would be unable to achieve this advancement and precious
stage of our life.
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INTELLECTUAL PROPERTY RIGHTS (IPR)

Article · October 2018

Sagar Kishor Savale

The user has requested enhancement of the downloaded file.

Volume 5, Issue 6, 2529-2559 Review Article ISSN 2278 – 4357

INTELLECTUAL PROPERTY RIGHTS (IPR)

Sagar Kishor Savale1* and Varsha Kishor Savale2

Article Received on ABSTRACT

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KEYWORDS: Patent, Copyright, Trademark, Integrated Circuits, Patentability,

BASIC CONCEPT IN IPR[4,5]

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What Can Be Patented

COPYRIGHTS AND RELATED RIGHTS

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manufacturing skills and traditions. A geographical indication points to a specific place or

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LAYOUT DESIGN FOR INTEGRATED CIRCUITS

PROTECTION OF NEW PLANT VARIETY

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DURATION OF INTELLECTUAL PROPERTY RIGHTS[21,22,23]

CONCEPT RELATED PATENTS

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2. TANGIBLE AND INTANGIBLE PROPERTY[27,28]

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3. NOVELTY (New invention)[29,30]

Relationship between Novelty and non-obviousness

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4. NON-OBVIOUSNESS (Inventive step)[31,32]

5. UTILITY (Usefulness of Patent application)[33,34]

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6. ANTICIPATION (Disclosure of the claimed invention by another)[35,36]

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TYPES OF PRIOR ART

3. Clearance: A clearance search is a search of issued patents to see if a given product or

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8. GLOBAL PERSPECTIVE OF PATENT SYSTEM[40,41,42]

9. ROLE OF INTERNATIONAL ORGANIZATION

Evolution of WTO: 1. Breetonwood Conference 1944.

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Secretariat and budget

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2. WIPO (World Intellectual Property Organization)[46,47,48]

Core Tasks of WIPO

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 Provide legal and technical assistance to developing and other countries.

3. EPO (European Patent Organization)[49]

The Role and Functions of the EPO

Role of EPO in granting patent

10. INDIAN PATENT ACT 1970[50,51,52]

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1883 Protection of Inventions Act

Purpose of getting a patent

Patent Law - Salient Features

Safeguards in the Patent Law

Patentable Inventions: Invention must