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Nature of Intellectual Property (IP)
Definition:
Intellectual Property (IP) refers to creations of the mind, such as inventions, artistic works,
designs, and symbols. It is protected by law so that creators can control the use of their creations
and derive economic benefit.
Types of Intellectual Property:
1. Patents:
o Protection for inventions that are novel, non-obvious, and useful.
o Grant of exclusive rights for a limited period, typically 20 years.
2. Trademarks:
o Protect distinctive symbols, logos, words, or other identifiers used in commerce to
distinguish goods or services.
o Can last indefinitely with proper maintenance.
3. Copyrights:
o Protection for original works of authorship (literary, artistic, musical, etc.).
o Duration: Author's life + 70 years.
4. Trade Secrets:
o Protection for confidential business information that provides a competitive
advantage.
o No fixed duration, as long as the information remains secret.
5. Industrial Designs:
o Protection for the ornamental or aesthetic aspect of an item (shape, configuration,
pattern, or ornament).
o Duration: Usually 10-25 years, depending on the jurisdiction.
2. Process of Patenting and Development
Stages of Patenting:
1. Invention Disclosure:
o The inventor describes the invention and its technical aspects.
o Documentation of the idea is essential.
2. Patent Search:
o A patent search is performed to ensure that the invention is novel.
o Helps in identifying existing patents or prior art that may affect patentability.
3. Patent Application Filing:
o The inventor files the patent application with the relevant patent office (e.g.,
USPTO, EPO).
o Includes technical details about the invention, claims, abstract, and any drawings.
4. Examination:
o The patent office examines whether the invention meets the criteria of novelty,
non-obviousness, and industrial applicability.
o They may request modifications or clarifications.
5. Patent Grant:
o If the patent office finds the application meets all requirements, a patent is
granted.
o The inventor now holds exclusive rights for a specific period (usually 20 years).
6. Patent Maintenance:
o Regular maintenance fees are required to keep the patent valid.
o If maintenance fees are not paid, the patent can expire before the end of the term.
3. Procedure for Granting Patents
Steps in the Patent Grant Process:
1. Filing the Application:
o The applicant submits a patent application with the necessary details (description,
claims, drawings).
o The application can be filed under different types: provisional or non-provisional
(full application).
2. Formal Examination:
o The patent office checks if the application complies with formal requirements
(e.g., completeness of forms, drawings, etc.).
3. Substantive Examination:
o The application is examined for its patentability—whether the invention is new,
inventive, and useful.
o An examiner conducts a search for prior art (existing patents, publications, etc.) to
determine novelty.
4. Granting the Patent:
o If the application satisfies the patent office’s requirements, the patent is granted
and published in the official gazette.
5. Opposition:
o In some jurisdictions, after granting, a patent can be opposed by third parties
within a certain period (e.g., 9 months in the European Union).
6. Appeal Process:
o If the application is rejected, the applicant can appeal the decision.
4. Patenting under the Patent Cooperation Treaty (PCT)
Overview of PCT:
The Patent Cooperation Treaty (PCT) is an international agreement that simplifies the patent
application process when seeking protection in multiple countries. It enables an inventor to file a
single international patent application.
PCT Process:
1. International Application Filing:
o The inventor files a single application through a PCT member country.
o This application can be filed in English, French, or Spanish, depending on the
office.
2. International Search:
o The PCT application undergoes an international search for prior art by a
designated International Searching Authority (ISA).
o The search report is sent to the applicant and patent offices of the chosen
countries.
3. International Preliminary Examination:
o This step is optional. It allows the applicant to get a preliminary opinion on the
patentability of the invention before entering national phases.
4. National Phase:
o After the international phase (usually 30 or 31 months), the applicant must enter
the national phase in each country or region where they seek protection.
o Each national office will examine the application according to its own laws.
5. Patent Information and Databases
Importance of Patent Databases:
Patent databases help researchers, businesses, and inventors to:
Verify novelty before filing a patent application.
Explore technological trends and developments.
Monitor competitors and assess the market landscape.
Common Patent Databases:
1. Espacenet (European Patent Office):
o A free global patent database providing access to millions of patent documents
from various countries.
2. USPTO Patent Database:
o A comprehensive database of US patents and patent applications.
3. WIPO Patentscope:
o The World Intellectual Property Organization's global patent database, including
PCT applications.
4. Google Patents:
o A user-friendly search engine that indexes patent documents from around the
world.
6. IPR of Biological Systems
Key Concepts:
1. Biotechnology Patents:
o Protection for biotechnological inventions, including genetically modified
organisms (GMOs), gene sequences, and pharmaceutical products derived from
biological systems.
2. Patentability of Biological Systems:
o Genetically Modified Organisms (GMOs): Inventions involving the
modification of plants, animals, or microorganisms are patentable if they meet
novelty, inventive step, and utility criteria.
o Biological Materials: Includes patenting of microorganisms, enzymes, DNA
sequences, etc.
3. Challenges:
o Ethical concerns, especially around GMOs and genetic resources.
o Biopiracy: The unauthorized use of traditional biological knowledge or resources
from indigenous communities.
7. IPR and Computer Software
Protection of Software:
1. Copyright:
o Software code is generally protected by copyright, as it is considered a literary
work.
o Protects the structure, code, and design but not the functionality or ideas behind
the software.
2. Patents:
o If software provides a novel technical solution to a problem, it may be patentable,
particularly if it involves technical innovation.
o Patentable subject matter may include algorithms, methods, and processes
embedded in software.
3. Open Source vs Proprietary Software:
o Open Source Software: The code is open for modification and redistribution
under a license (e.g., GNU GPL).
o Proprietary Software: Licensed with restrictions on its use, modification, and
redistribution (e.g., Windows, Microsoft Office).
8. IP and Traditional Knowledge
Challenges in Protecting Traditional Knowledge (TK):
1. Nature of TK:
o Traditional knowledge is often passed down orally and is not formally recorded.
o It includes indigenous practices, herbal medicine, agricultural techniques, and
cultural expressions.
2. Issues of Misappropriation:
o Biopiracy: Companies patenting traditional knowledge or genetic resources
without the consent of indigenous communities.
o Cultural Exploitation: The use of traditional cultural expressions (like art,
music, or designs) by third parties for profit without permission.
3. Protection Mechanisms:
o Sui Generis Systems: Custom laws designed to protect TK. These systems can be
tailored to the specific needs of local or indigenous communities.
o Geographical Indications (GIs): Used to protect products that have a specific
geographical origin and possess qualities or a reputation due to that origin (e.g.,
Champagne, Darjeeling tea).
o Traditional Knowledge Digital Library (TKDL): A platform that documents
and protects traditional knowledge in digital form to prevent biopiracy.
4. International Frameworks:
o Nagoya Protocol: An international agreement under the Convention on
Biological Diversity to ensure fair and equitable sharing of benefits arising from
the utilization of genetic resources and associated TK.
Summary
Intellectual Property encompasses a wide range of legal protections for human
creations, including inventions (patents), creative works (copyrights), and brands
(trademarks).
The patenting process includes filing, examination, and grant, with the option for
international protection under the PCT.
Patent databases are critical for verifying novelty and assessing technological
landscapes.
IPR of biological systems protects biotechnological innovations but faces ethical and
legal challenges, especially related to genetic resources and traditional knowledge.
IPR and software protection focuses on copyrights and patents, with distinctions
between open-source and proprietary models.
Traditional Knowledge is harder to protect with conventional IP laws, and special
mechanisms are being developed to safeguard the interests of indigenous communities.
