Frequently Asked Questions (FAQ) on IPR Protection in India


Prakash (Lawyer)     05 January 2008

Prakash
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Frequently Asked Questions (FAQ) on IPR Protection in India

Intellectual Property is intangible incorporate property consisting of bundle of rights. The property imbibed from the intellectual capacity of a human brain for instant an invention, design of an article, literary or artist work, symbols/trade marks, having commercial value and the same is not available in the public domain.

Intellectual Property commonly encompasses the following:

1. Patent
2. Trademarks
3. Industrial Design
4. Copyright
5. Geographical Indication of Goods
6. Integrated Circuit
7. Protection of Undisclosed Information such as Trade Secrets

PATENTS:

What is Patent?

Patent enables its owners to exclude from making, using and selling its inventions.

Term of patent:

The term of patent is for twenty years (20), provided the maintenance fee is paid at the end of every year.

Territorial Scope:

Patent laws are territorial, a separate patent must be obtained in each country. Indian patent office protects invention only filed in India.

What is patentable?

Only inventions are patentable. An invention must be new, useful and must involve inventive steps compared to closest prior art. A new and unobvious product, process, apparatus or composition of matter will generally be patentable.

Patentability searches:

Patentability search is a search for invention in hope of not finding the invention. The patentability search is an universal concept since inventions can not be boundary constraint. But it is to be noted that the patent laws are territorial.

Computer databases search is quick and relatively inexpensively. Database searches are most useful in searching sophisticated inventions, which can be described by precise, well-known terms of art. They are much less useful in searching mechanical gadget type inventions.

No search will "guarantee" the patentability of any invention. The object is to make a reasonable assessment of the prospects for obtaining worthwhile patent protection. Search results are also useful in preparing a patent application.

Information required for conducting search:

To conduct a search the descriptttion, drawings or photographs of the invention, showing how it is made, operated and used would be helpful. Further details of any known prior art; a summary of the prior art's shortcomings; an explanation of how these are overcome by the invention; a list of any other advantages of the invention; and, details of any possible variants or modifications that could be made without departing from the general concept of the invention

Who can apply for a patent?

An application for obtaining a patent can be made by a true and first inventor who holds the rightful ownership in the invention due to fact that he invented the same or by any person who is an assignee/legal representative of the first and true inventor. Also a legal heir of the first and true inventor can apply for patent in case of the death of the true and first inventor.

What is not patentable invention?

1. An invention which is frivolous or which claims anything obviously contrary to whole established natural laws.

2. An invention the primary or intended use or commercial exploitation of which could be contrary to public.

3. The mere discovery of a scientific principle or the formulation of an abstract theory.

4. The mere discovery of any new property or new use for known substance or of the mere use of known process, machine or apparatus unless such known process result in a new product or employ one new reactant.

5. A substance obtained from mere admixture resulting into aggregation of properties.

6. Mere arrangement or re-arrangement or duplication of known devices each functioning independently.

7. A method of agriculture or horticulture.

8. Any process for the medicinal, surgical, curative, prophylactic or other treatment of human beings or animals.

9. Plants and animals in whole or any part in whole or any part thereof other than micro organism but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals.

10. A computer programmed per se other than its technical application to industry or combination with hardware

11. A mathematical method or business method or algorithms

12. A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions.

13. A mere scheme or rule or method of performing mental act or method of playing game.

14. A presentation of information

15. Topography of integrated circuits

16. An invention which, in effect is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.

17. Invention relating to atomic energy.

What are the documents required for filling a patent application?

1. Application Form (form 1),
2. Specification (Provisional/Complete) [Form 2],
3. Drawings (if any),
4. Undertaking under section 8 (form 3), and
5. Power of Authority (if the patent application is filed through a patent attorney)

What is patent specification?

A patent specification discloses the details of the invention for which the patent protection is sought. The legal rights in a patent are based on the disclosures made in the specification. Specifications are of two kinds

1. Provisional: A provisional specification discloses incomplete invention or inventions requiring time to develop further. The provisional specification is filed to claim the priority date of an invention.

2. Complete: The document, containing the detailed descriptttion of invention along with the drawings and claims is called as the complete specification. Also the descriptttion regarding prior art is included in the complete specification.

What is the date of priority?

The date of priority is the date on which the patent application either with provisional specification or with complete specification is filed at the patent office.

What happens to the application after filing?

Initially, a patent examiner examines the patent applications and then communicates the objections, if any, to the applicant via first examination report. The applicant has to meet up with the compliance of the patent office within specific time frame, if the applicant fails in doing so the application shall be abandoned. Otherwise the application is published in the patent gazettes issued by the patent office. The said published application is open public perusal and opposition. If there is no opposition the patent shall be granted.

TRADEMARK:

What is a Trademark?

A trademark may be a word, symbol, logo, slogan, or any combination thereof that is used to identify and distinguish one person’s goods or services from the goods or services of another, and serves as an indicator of source of the goods or services.

Use of "TM", "SM" and  notation with Trademark:

The "TM" or “SM” notation is merely a means of informing third parties that the person claims trademark rights to the word, slogan, or phrase associated with "TM" or "SM" notation. The same can be used once the application is made for registration of a Trademark. After the grant the symbol  is used.

Types of Trademark:

Basically there are three types of Trademarks namely
1. Trademark and Service mark
2. Collective mark
3. Certificate Trademark

Term of Trademark:

The term for Trademark is for ten years but the mark can be perpetually be on the Register by renewing it every after ten years. The same can be assigned and licensed.

What is Design?

The design means the features of shape configuration pattern, ornament or composition of lines or colours applied to any article whether in two-dimensional or three dimensional or in both forms. Design registration does not cover the mechanical features of the item.

What is Copyright?

Copyright means exclusive right to do or authorize others to do certain acts in relation to
1. Literary, dramatic, musical and artistic works.
2. Cinematograph film
3. Sound Recordings

The nature of the acts varies according to the subject matter. Basically copyright is the right to copy reproduce the work in which copyright subsists.

GEOGRAPHICAL INDICATION OF GOODS:

Geographical Indications of Goods means indications, which identify a goods as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin. Thus Geographical Indications of Goods Act provides the rights, to use the geographical indication, to the person(s) of a particular territory wherein the goods are originating, produced, processed, or prepared.

Plant Variety and Farmers Right Protection:

Under this act breeders will have rights to protect the new variety of plant/crop either in person or through any one he designates. The rights under this act include the right to produce, sell, market, directly or export a variety.
Further the Act defines the farmer’s rights as follows:

The farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share, or sell his farm produce including seed of a variety protected under this act in the same manner as he was entitled before the coming into force of this Act but the farmer shall not be entitled to sell branded seed of a variety protected under this Act.

Plants are not patentable in India. However the plants can be protected under the provision of the Plant Variety Protection and Farmers Rights Act as mentioned herein above.

Intellectual Property Rights:

Intellectual Property Rights are statutory rights once granted allows the creator(s) or owner(s) of the intellectual property to exclude others from exploiting the same commercially for a given period of time. It allows the creator(s)/owner(s) to have the benefits from their work when these are exploited commercially. IPR are granted to an inventor or creator, designer in lieu of the discloser of his/her knowledge.

Governing Laws in India for IPR as follows:

1. Patent Act 1970
2. Trade Marks Act (1958 original) 1999
3. The Copyright Act 1957
4. The design Act 2000
5. Geographical Indication of Goods (Registration and Protection) Act 1999
6. Plant Variety and Farmers Right Protection Act 2001

What is an invention/innovation?

An invention means: a new product or process involving an inventive step and capable of industrial application.

An Innovation means: The successful exploitation of new ideas in the form of a useful machinery or process, by any person, using own intellect is called as innovation. Every innovation may not be patentable invention but every invention is an innovation.

All the inventions are the innovations and are patentable, but all the innovations are not the patentable inventions.

What is Traditional Knowledge (TK)?

The knowledge continually developed, acquired, used, practiced, transmitted and sustained by the communities/individuals through generations is called Traditional Knowledge.

In India traditional knowledge including the existing oral knowledge can not be protected under the provisions of the existing IPR laws/acts, as mentioned herein above. However, if there is a substantial improvement in the existing traditional knowledge and if it can fulfill the requirements of the definition of the invention, then the patent application can be filed.

What is Prior Inform Consent (PIC)?

Prior Informed Consent is a consent sought from the innovator and/or inventor and/or knowledge holder to develop, protect, explore, commercialized ones innovation. PIC document may be of different types each defining the scope of rights imparted to exploit the innovation.
What is a PCT?
PCT abbreviated, from the Patent Cooperation Treaty. PCT is an International treaty, which provides facility to the applicant to file a single patent application and designate the countries in which he/she wants to protect his IP rights. Thus a single patent application is filed for the purpose of an international search report and to claim the priority date in all the designated countries. After receiving the international examination report, the applicant has to file a request in each designated country to take on record his/her application and this is called national phase of a patent application. A PCT application also provides an international filing date through a single patent application. India is a member country to PCT.

PRAKASH.Y

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Irshad (Article)     24 January 2008

Irshad
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Yet another great write up on this website...

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umaa's legal clinic (simple solutions for complex legal issues)     13 October 2008

umaa's legal clinic
simple solutions for complex legal issues 
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Sir,

I am the aspirant of LL.M(corporate law) II year.  I took admission in NLSIU Bangalore in P.G.Diploma in IPR laws.  I would like to enter the corporate world in a good position.  Can u Guide me to complete my p.g.diploma.  Please tell me what skills are needed to enter the corporate world in ipr branch.

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Abhay Sethia (stundent)     24 August 2009

Abhay Sethia
stundent 
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Please give the detail about -

1. When a preson is deemed in dfalt under copy right act .

2. What setp should be taken to avoid over reding the act come in the position of defalt.

3. General awarenance about it ,when we contribute the artical in journals etc..

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Ankur Garg (Company Secretary and Compliance Officer)     25 August 2009

Ankur Garg
Company Secretary and Compliance Officer 
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Indeed a useful post...

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Kiran (IPR Expert)     15 April 2012

Kiran
IPR Expert 
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Very useful post...gives an overview of the various

Intellectual Property Rights - patents,

- copyright, trademarks, etc.

Trademark Registration India is imperative for serious business owners.

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Arun Jain (Account Professional)     01 November 2018

Arun Jain
Account Professional 
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Dear Sir, I filed a Trademark which was opposed and i filed counter statement (Within 10 Days)  but opposition party did not file any evidence for 3 Months, neither intimate me (Party) to go for without evidence and as per opposition affidavit.  what is the next step i can take, to ask Trademark authority to take further step..


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