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Intellectual Property Rights Intellectual Property Rights

GATT TRIPS Patents Trade Secrets Copyright
Property: The owner of the property is free to use it as he/she wishes to, but according to the law. The owner can exclude others from using the property. Intellectual Property: The types of property that result from creations of human mind - the intellect. Intellectual Property Rights: IPRs are the rights given to persons over the creations of their intellects. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.

Intellectual Property Rights

Convention establishing the World Intellectual Property Organisation (WIPO) defines IPR as Literary, artistic and scientific works, performances of performing artists, phonograms and broadcasts, inventions in all fields of human endeavor, scientific discoveries, industrial designs, trademarks, service marks, and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Why do IP Rights matter?

It is both just and appropriate that the person putting in the work and effort into an intellectual creation has some benefit as a result of this endeavor. By giving protection to IP, many such endeavors are encouraged and industries based on such work grow for the benefit of all stakeholders.

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Need for nations to enact IP Laws

To provide incentive towards various creative endeavors of the mind by offering protections. To give such creators official recognition. To create repositories of vital information. To ensure domains of protection at national and international levels for IP. To facilitate the growth of both domestic industry or culture, and international trade, through the treatise offering multi-lateral protection.

Multi-lateral protection - Background

During great depression of 1930s international trade was badly affected & various countries imposed import restrictions for safeguarding their economies.

It resulted in sharp decline in world trade.

In 1945, USA put forward many proposals for extending international trade & employment. On 30th October 1947, 23 countries at Geneva signed an agreement related to tariffs imposed on trade known as the General Agreement on Tariffs & Trade (GATT)

GATT was signed by 23 countries in 1947 and lasted till 1993

Principles adopted by GATT

A contracting partys trade policies must treat all GATT members equally. No member country shall discriminate between the members of GATT in the conduct of international trade. Members of GATT agree to apply the principle of most favored nation to all import and export duties. National Treatment: Foreign goods, services, or investment are to be treated no less favorably within a nations domestic markets than competing products or services produced locally. NON DISCRIMINATION

Rounds of GATT
Between 1947 and the last year of GATT there were 8 rounds of negotiations between the participating countries. The 8th round was entirely different from the previous rounds because it included a number of new subjects for consideration. This 8th round was known as URUGUAY ROUND. The discussions at this round gave birth to the WORLD TRADE ORGANISATION (WTO). Following the UR agreement, GATT was converted from a provisional agreement into a formal international organization called World Trade Organization (WTO), w.e.f. 1st January, 1995.

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GATT vs. WTO

GATT
GATT was ad hoc & provisional GATT had contracting parties

World Trade Organisation

WTO is an organization for liberalizing trade, a forum for governments to negotiate trade agreements and a place for them to settle trade disputes. There are WTO agreements, negotiated and signed by the bulk of the worlds trading nations. The WTO has larger membership than GATT, with the numbers being 153. India is one of the founder members of GATT.

WTO
WTO and its agreements are permanent WTO has members

GATT system allowed existing WTO does not permit this domestic legislation to continue even if it violated a GATT agreement GATT system was less WTO is more powerful than powerful, dispute settlement GATT, dispute settlement system was slow and less mechanism is faster and more efficient, its ruling could easily efficient, and it is very difficult be blocked to block the rulings

Functions of the WTO

WTO is based in Geneva, Switzerland. Its functions include: Administering the multilateral trade agreements which together make up the WTO. Acting as a forum for multilateral trade negotiations. Seeking to resolve trade disputes. WTO is not a Free trade institution. It permits tariffs and other forms of protection but only in limited circumstances.

Principles of the WTO

Non discrimination Free Trade: Promote free trade between nations through negotiations. Stability in the trading system: Member countries are committed not to raise tariff and non tariffs barriers arbitrarily. Promotion of Fair Competition: WTO provides for transparent, fair and undistorted competition. It discourages unfair competitive practices such as export subsidies and dumping.

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Emergence of TRIPS
The WTOs Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), introduced intellectual property rules into the multilateral trading system for the first time. TRIPS covers the following 7 intellectual properties:
Patents Copyright and other related Rights Geographical Indications Industrial Designs Trade marks Layout design of integrated circuits Undisclosed information including trade secrets

TRIPS - Issues
The agreement covers five broad issues: How basic principles of the trading system and other international intellectual property agreements should be applied How to give adequate protection to IPRs How countries should enforce those rights adequately in their own territories How to settle disputes on intellectual property between members of the WTO Special transitional arrangements during the period when the new system is being introduced

TRIPS - Principles
National Treatment: Treating ones one nationals and foreigners equally. Most Favored Nation: Equal treatment for nationals of all trading partners in the WTO Balanced Protection: IP protection should contribute to technical innovation and transfer of technology. Moreover, both producers & users should benefit, and economic & social welfare should be enhanced

TRIPS Common ground rules

The TRIPS agreement ensures the protection of different kinds of intellectual property rights. The purpose is to ensure that adequate standards of protection exist in all member countries. The starting point is the obligations of the main international agreements of the World Intellectual Property Organization (WIPO) that already existed before the WTO was created. Two main areas of IPRs are recognized: Copyright and rights related to copyright Industrial Property (Patents, Trade Secrets.)

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IP Acts enacted by India

The Patents Act, 1970, amended by the Patents (Amendment) Act, 1999 and the Patents (Amendment) Act, 2002 The Copyright Act, 1957, as amended in 1999 The Trade marks Act, 1999 The Designs Act, 2000 The Geographical Indication of Goods (Registration & Protection) Act, 1999 The Protection of Plant Varieties and Farmer Rights Act, 2001 Integrated Circuit Layout Design Act, 2000 The Biological Diversity Act, 2002

Copyright
Copyright and rights related to copyright:
The rights of creators of literary, scientific & artistic works in any mode or form of expression are protected by copyright, for a minimum period of 50 years after the death of the author. Copyright confers two main sets of rights Economic Rights & Moral Rights.

Two conditions need to be fulfilled:

A work has to be original (positive condition) A protection can extend only to expression but not to ideas (negative condition)

Original has different interpretations under Common Law

System (India and some other countries) and Civil Law System (Most East European Countries)

Copyright
Limitations & Exceptions:
Limitations on the rights of owners of copyright concerns particular acts of use, which normally would require the authorization of the owner, be done without authorization. These limitations take into account social, educational and other public policy considerations. International Treaties, as well as national laws, allow to freely use limited portions of a work for certain purposes, such as news reporting, making quotations compatible with fair practices or for teaching purpose. There are two basic types of limitations: Free Use: Use of works without authorization & without obligation to compensate the copyright holder. Non-voluntary licenses: Use of works without authorization but with obligation to compensate the copyright holder.

Copyright
Important Conventions & Legislations: Berne Convention for the Protection of Literary and Artistic Works, 1886 1st international initiative taken to establish recognition of copyrights among sovereign nations. WIPO Copyright Treaty (WCT) 1996 for protection of computer programmes and databases. WIPO Performances and Phonograms Treaty (WPPT) Indian Copyright Act, 1957 It has undergone many amendments, the last being the 2003 Amendment, which has come into force since May, 2004.

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Patents
A patent is an exclusive monopoly right granted to a patentee to prevent others from making, using, selling, offering for sale or importing a product or a product prepared by a process for an invention claiming a product or process in India for the duration of the term of the patent which lasts 20 years from the date of filing of a patent application. For the purpose of grant of patents, an invention should be:
New/ Novel It should involve an inventive step It must have industrial applicability

TRIPS - Patentable Inventions

TRIPS defines an invention as: a new product or process involving an inventive step and capable of industrial application. According to Article 27 of TRIPS, patents shall be available for any invention, whether products or processes, in all fields of technology with the exception of certain exclusions from patentability available to the member states within their territories. Members of the WTO also need to provide for protection to microorganisms and non-biological and microbiological processes. Members should also provide for the protection of plant varieties.

TRIPS Non-patentable Inventions

As per TRIPS the following cannot be patented:
Inventions related to atomic energy An invention contrary to public order or mortality or which causes serious prejudice to human, animal or plant life or health of the environment A frivolous invention contrary to natural laws Discovery of a scientific principle or an abstract theory Discovery of a new form of a known substance Discovery of a new organism existing in nature An invention which in effect is a traditional knowledge A mathematical or a business model A method of horticulture or agriculture Any process for the treatment of human beings and animals Plants & animals in whole or any part thereof other than microorganisms and essentially biological processes for production or propagation

Procedure for obtaining Patents

Filing application with specification and claims Publication of application Examination on request Acceptance of specification and advertisement Opposition (if any) Consideration of opposition Grant of patent

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PROCEDURE FOR OBTAINING PATENTS

Filing of application

Rights conferred on patentee

Patent protection is available for inventions for 20 years subject to annual renewal.
Publication after 18 months from application date

Filing of complete specification

(within 12 months)

Early publication on request Examination of application (on request) Pre-grant opposition N Open for postgrant opposition Grant of Patent

Y Acceptable after scrutiny? Y Rejection N

The rights include: the right to exploit the patent the right to exclude others from exploiting the patent the right to assign and license the right to surrender the right to sue for infringement

Limitations on patentees rights

Use for the purposes of the Government Acquisition by Government for public purpose Compulsory licences Acquisition for defence purposes Revocation of patents for non-working

Undisclosed information & Trade Secrets

Trade secrets and other types of undisclosed information which have commercial value must be protected against breach of confidence and other acts contrary to honest commercial practices. This will be possible only if reasonable steps have been taken to keep the information secret. Test data submitted to the government in order to obtain marketing approval for new pharmaceutical or agricultural chemicals must also be protected against unfair commercial use.