Intellectual Property Rights

Intellectual Property: In law, intellectual property (IP) is an umbrella term 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 IP. The term
intellectual property reflects the idea that this subject matter is the product of the mind or
the intellect, and that IP 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. However, these laws are becoming increasingly harmonized through
the effects of international treaties such as the 1994 World Trade Organization (WTO)
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), while other
treaties may facilitate registration in more than one jurisdiction at a time. Certain forms
of IP rights do not require registration in order to be enforced.

Why have intellectual property rights?

The objectives normally put forward for recognition and protection of IPRs are to:
1. contribute to the development of national economies;
2. enhance trade and investment in a country;
3. encourage and reward innovation and development;
4. benefit from international trade opportunities;
5. attract foreign investment and technology;
6. comply with international standards and resolve disputes; and
7. recognize an inventor’s and creator’s right to be recognized and rewarded for their
intellectual endeavors.

Types of intellectual property

 Trade Marks
 Trade secrets
 Industrial Designs
 Geographical Indications
 Copyrights and related rights
 Patents

1 IPR & Patenting of Natural products | Mrs. Dhruti Chirag Nagda, ARCP
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TRADE MARKS
A trademark is a sign used to distinguish goods or services in the market place from the
goods or services of another trader.

The trade mark can appear directly on the product (such as on a label on a bottle), in its
packaging and other material (such as on a box or bag the product is sold in, and on
instructions, guarantees and other documents), and in advertising and promotional
material (for example, on a billboard or magazine advertisement).

Example: The actual shape of a container can be a trademark – the shape of the famous
COCA-COLA® bottle is itself a trade marks in a number of countries.

When a trade mark is used in the services sector (for example, banking, pathology
services, internet or telecommunication services), the trade mark is used in association
with the provision of services (on signs at an office or workshop, for instance, on
documentation such as quotations, invoices and reports, or on a website offering or
providing the service), and on promotion material (such as advertisements).

The main legal property of a trademark is that it should effectively function as a sign
that shows that a certain product is associated with one business in particular.

For this reason, the rights associated with a trademark are linked to particular goods
and services, and do not normally extend to other areas of commerce

TRADE SECRETS
Trade secrets are information of a business or technical nature that have commercial
value and have been kept confidential.

They can include secret processes, mixtures of ingredients, recipes, know-how or any
other confidential information that may give a competitive edge or may otherwise be
valuable.

INDUSTRIAL DESIGNS
'Design' means the features of shape, configuration, pattern, ornament or composition of
lines or colours applied to any article in two or three dimensional form by any industrial
process or means which may be manual, mechanical or chemical and these features are
reflected in the finished products by just looking at it. Designs which are essentially
technical or functional are not protectable.

2 IPR & Patenting of Natural products | Mrs. Dhruti Chirag Nagda, ARCP
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The industrial design system protects the distinctive appearance of products – it only
protects the look of items, and not how they function or the underlying technology.

Protection is given to distinctive ornamental or aesthetic elements of the product.

To be eligible for protection, a design has to be new in appearance, although this can
include relatively minor variations on existing designs

GEOGRAPHICAL INDICATION
A geographical indication is a sign used on goods that have a specific geographical origin
and possess qualities or a reputation that are due to that place of origin.

Most commonly, a geographical indication consists of the name of the place of origin of
the goods. Agricultural products typically have qualities that derive from their place of
production and are influenced by specific local factors, such as climate and soil.

A geographical indication is a sign used on goods that have a specific geographical origin
and possess qualities or a reputation that are due to that place of origin.

Most commonly, a geographical indication consists of the name of the place of origin of
the goods. Agricultural products typically have qualities that derive from their place of
production and are influenced by specific local factors, such as climate and soil.

COPYRIGHT AND RELATED RIGHTS

Copyright is a legal protection extended to the owner of the rights in an original work of
creation. Copyright protects expressions and not the ideas. There is no copyright in an
idea. Copyright comprises two main sets of rights: The economic rights and moral rights.
Economic rights include the right of reproduction, broadcasting, public performance,
adaptation, translation, public relation, public display, distribution and so on. Moral rights
include the author’s right to object to any distortion, mutilation or other modification of
his work that might be prejudicial to his honor and reputation.

Copyright subsists in the following classes of works:

Original literary, dramatic, musical and artistic works
Cinematograph films
Sound recordings

3 IPR & Patenting of Natural products | Mrs. Dhruti Chirag Nagda, ARCP
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The original creators of works protected by copyright, as also their legal heirs have
certain basic rights. They hold the exclusive right to use or authorize others for use of the
copyrighted material. The creator of the right can prohibit or authorize:
Reproduction in various forms such as printed publication or sound recording
Public performance as in a play or musical work
Recordings in a disc or cassette
Broadcasting by radio, cable or satellite
Translation into other languages
Adaptation, such as novel into screenplay

Subject to certain conditions, a fair deal for research, study, criticism, review and news
reporting, as well as use of works in library and schools and in the legislatures, is
permitted without specific permission of the copyright owners. In order to protect the
interests of users, some exemptions have been prescribed in respect of specific uses of
works enjoying copyright. E.g.
For the purpose of research or private study
For criticism or review
For reporting current events
In connection with judicial proceeding
Performance by an amateur club or society if the performance is given to a non-paying
audience
The making of sound recordings of literary, dramatic or musical works under certain
conditions.

The period of Copyright protection in India is 60 years. In the case of original literary,
dramatic, musical and artistic works the 60-year period is counted from the year
following the death of the author. In the case of cinematograph films, sound recordings,
photographs, posthumous publications, anonymous and pseudonymous publications,
works of government and works of international organizations, the 60-year period is
counted from the date of publication.

Neighboring rights include rights of performing artists in their performances, rights of

producers of phonograms in their phonograms and the rights of broadcasting
organizations in their radio and TV programs.

PATENT

A patent is an exclusive right granted by a country to the owner of an invention to make,

use, manufacture and market the invention, provided the invention satisfies certain
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conditions stipulated in the law. Exclusive right implies that no one else can make, use,
import manufacture or market the invention without the consent of the patent holder. This
right is available for a limited period of time. A patent in the law is a property right and
hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the
State, it can be revoked by the State under very special circumstances even if the patent
has been sold or licensed or manufactured or marketed in the meantime. There is nothing
like a global patent or a world patent. The patent right is territorial in nature and
inventors/their assignees will have to file separate patent applications in countries of their
interest, along with necessary fees, for obtaining patents in those countries. However,
there are some regional systems where by filing one application one could simultaneously
obtain patents in the member countries of a regional system; European Patent Office is
an example of a similar system.

Patent protection helps a patentee to enjoy his patent rights for a certain period of time
and then after that period expires the patented invention is made available to the public so
that they can use it. Patent protection serves the following purposes:
It gives protection to a patentable invention for the exclusive use of it by its inventor.
It gives a legal recognition to the invention and therefore the inventor’s rights are
legally protected and can be enforced by him in the court of law.
It also makes others aware of the fact as to whom does the invention belong
It leads to development of the human society as patents are not protected for infinity
and so after the expiry of the protection period the invention is made available to the
public for use.
Patenting ones invention make useful data relating to the invention available to other
inventors for further research and development.

For an invention to be patentable, it should qualify the following conditions.

i. Novelty: An invention will be considered novel if it does not form a part of the global
state of the art. It will cease to be novel if it has been disclosed in the public through any
type of publications anywhere in the world before filing a patent application in respect of
the invention. Prior use of the invention in the country of interest before the filing date
can also destroy the novelty. Novelty is determined through extensive literature searches.
An expired patent is also a prior art Everything disclosed in a patent/non-patent literature
is prior art.
ii. Inventiveness (Non-obviousness) : A patent application involves an inventive step if
the proposed invention is not obvious to a person skilled in the art i.e., skilled in the
subject matter of the patent application.
iii. Usefulness : An invention must possess utility for the grant of patent. No valid patent
can be granted for an invention devoid of utility.

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PATENTING OF NATURAL PRODUCTS

• Patentable subject matter:

▫ New process of manufacture
▫ NCE ( New chemical entities, after 2005)
▫ New formulation processes
▫ New composition of matter
• Non-patentable: (In INDIA)
▫ Discoveries
▫ Methods of detection, diagnosis or treatment of diseases
▫ Analytical methods
▫ Methods of agriculture/cultivation
▫ The products made by Chemical synthesis
▫ Animal, plant and biological methods for growing and rearing them

Validity of patent: Patent for food and medicines and drugs produced by chemical
processes

• 5 Years period from the date of Granting the patent OR 7 Years period from the
date of filing application OR whichever is earlier

PATENTABLE NATURAL PRODUCTS

1. Formulation of new composition or improved formulation is patented

2. Patent for new use of the herbal constituents
3. A Novel isolation process
4. A new application of an isolated compound
5. Modification or Synthesis of the natural compounds
6. The inventions with novelties: Eg; Bio-pesticides
7. Biotechnology related products
8. Purification of the natural products

1. Formulation of new composition or improved formulation is patented

• Eg: Patented herbal anti-allergic composition which comprises a synergistic

mixture of extracts from the fruits of Terminalia chebula, bark of Albizia lebbeck,
Terminalia bellerica and Embelica officinalis and process of preparation of such
composition.
• The present invention also contains the fruits of Piper longum, Piper nigrum and
rhizomes of Zingiber officinale and thoroughly mixed to get the final composition

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 which has potent anti-allergic activity. The preparation is useful for the treatment
of allergic conditions.

2. Patent for new use of the herbal constituents

• The weight loss properties of Forskolin (obtained from the roots of Coleus
forskohlii ) were discovered by the firm (Sabinsa corporation), in humans, which
is not a traditional use of the Coleus active. For this, the company was granted a
patent for its use and composition in promotion of lean body mass, reduction of
adipose tissue (fat) and weight loss.

3. A Novel isolation process

• Eg; For the process of isolation of Azadirachtin (fungicidal activity) from the
seeds of neem and also its storage. N.C.L, Pune, Indian patent.

4. A new application of an isolated compound

• Eg; For the use of turmeric as a stabilising agent for menadione, an antifungal
agent. Japanese patent

5. Modification or Synthesis of the natural compounds

• Eg: The novel steroidal glycosides compounds which are extracted and isolated
from the extracts of plant of the genus Trichocaulon or Hoodia containing an
appetite suppressant agent and the derivatives of such compounds are synthesized
with the aim of increasing the activity of the active ingredient. Also, this
invention provides novel intermediates for the synthesis of active compound.
• The active ingredient in the Hoodia gordonii plant is called P57 and is responsible
for its appetite suppressant qualities. Phytopharm, a British pharmaceutical
company, has the exclusive patent on P57.

7 IPR & Patenting of Natural products | Mrs. Dhruti Chirag Nagda, ARCP
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