INTELLECTUAL PROPERTY RIGHTS & MSME SECTOR
Introduction
The term Intellectual property (IP) refers to a number of distinct
types of creations of the mind or the intellect in the industrial, scientific,
literary, and artistic fields, exclusive rights for which are protected by
legal instruments and in some cases granted by the Government. The legal
instruments and exclusive rights provided by the Government differ in their
subject matter, extent of protection, and field of application, reflecting
society’s objective to balance the interests of creators and consumers for
different types of intellectual works. Common types of intellectual property
rights are industrial property and copy rights and include patents, trademarks,
industrial designs, geographical
indications, copyrights
and trade secrets/traditional
knowledge.
Patents are legal titles
granting the owner the exclusive right to make commercial use of an
invention. To qualify for patent
protection, inventions must be new, non-obvious, and commercially
applicable. The term of protection is
usually limited to 20 years, after which the invention moves into public
domain. The patent system is one of the
oldest and most traditional forms of IPRs protection. Some countries have
introduced utility models (or petty patents). The novelty criteria for utility models are
less stringent and are typically granted for small, incremental
innovations. Their term of protection is
far shorter than for “regular” invention patents (typically four to seven
years). This type of practice is not in practice in India . Similarly, industrial
designs protect the ornamental features of consumer goods such as
electronics, textiles, footwear, cars, etc.
To be eligible for protection, designs must be original or new. They are generally conferred for a period of
five to fifteen years and 10 years in India .
Trademarks are words,
signs, or symbols that identify a certain product or company. They seek to offer consumers the assurance of
purchasing what they intend to purchase.
Trademarks are indefinite, provided they remain in use. Use of trademarks is of high significance in
certain consumer goods industries, such as electronics, FMCG and clothing.
Grant of Trade Mark is given for
10 years with renewals after every five years.
Similar to trademarks, geographical indications identify a
product either Agricultural or Industrial. (e.g., Pochampalli Sarees, Banginapally
mangoes or Kondapalli dolls,Coimbatore Wet grinders) with a certain city or
region.
Copyright protects
original works of authorship. Copyright protection differs from patent
protection in that copyright only protects the expression of an intellectual
creation, whereas the ideas or methods advanced in the title can be freely
copied. Copyright protection typically
lasts for the life of the author plus 50 to 60 years. It is applicable to literary, artistic, and
scientific works. During the past
decade, copyright protection has also developed as the main form of protection
for computer software. Rights related to
copyright—often referred to as neighboring
rights—are accorded to phonogram producers, performers, and broadcasting
organizations. Limits to exclusive
copyrights and neighboring rights exist in certain “fair use” exemptions, such
as educational or library use or for purposes of criticism and scholarship.
Besides these traditional forms
of IPRs, ongoing technological change and the unique characteristics of certain
industries and products have led to additional, so-called sui generis forms of
protection. Layout designs for
integrated circuits protect producers of semiconductors. Protection is limited to the design of an
integrated circuit and does not restrict reverse engineering of a
semiconductor. In this regard,
protection of layout designs is similar to copyright. However, the term of protection is shorter
than under copyright—typically ten years.
Title holders have the right to prevent unauthorized reproduction,
importation, sale or other distribution of the layout design for commercial
purposes. Exclusive rights to test
data submitted to regulatory agencies have been granted in the
pharmaceutical and chemical industries.
Companies that first submit these data can prevent competing firms from
using the same data to obtain own marketing approval. Plant breeders’ rights
(PBRs) protect new plant varieties that are distinct from existing varieties,
uniform, and stable.
Finally, the protection of trade
secrets is part of many countries’ IPRs systems. Trade-secret protection differs from other
forms of protection in that it does not grant an explicit title to the creator
of an original work. Instead, it
protects businesses from the unauthorized disclosure or use of confidential information. Such confidential information includes
inventions not yet at the patenting stage, ways of organizing business, client
lists, purchasing specifications, and so on.
Intellectual Property Rights Protection
System in India
The Indian IPR system
is governed by the following legislations:
·
Indian Patent Act, 1970 as amended in 1999, 2002
and 2005
·
The Design Act, 2000
·
The Trade Marks Act: 1999,2010
·
The Geographical Indications of Goods
(Registration & Protection) Act, 1999
·
Copy
Rights Act 1957, as amended in 1999,2012
·
Semi-Conductor
IC Layout Design Act, 2000
·
Protection
of Plant Varieties and Farmers’ Rights Act, 2001
The Office of
the Controller General of Patents, Designs& Trade Marks (CGPDTM), located at Mumbai is
responsible for coordination and guidance to the Entrepreneurs in the areas of
Industrial Property. The Head Office of the Patent office is at Kolkata with its
Branch offices located at Chennai, New
Delhi and Mumbai. The Trade Marks Registry is located
at Mumbai and its Branches are in Kolkata, Chennai, Ahmedabad and New Delhi . The Design
Office is at Kolkata, in the Patent Office. The Offices of The Patent
Information System (PIS) and National Institute of Intellectual Property
Management (NIIPM) are established at Nagpur .
The Controller
General supervises the working of the Patents Act, 1970, as amended; the
Designs Act, 2000 and the Trade Marks Act, 1999 and also renders advice to the
Government of India on matters relating to these subjects. In order to protect
the Geographical Indications of goods a Geographical Indications Registry has
been established in Chennai to administer the Geographical Indications of Goods
(Registration and Protection) Act, 1999 under the CGPDTM.
The Indian Copy Rights are governed by Copy Right Act, 1957 as amended
in1983, 1984, 1992, 1994 and 1999; the Copy Right Rules, 1958, 1995 &2012 and
International Copy Rights Order 1999 as amended in 2000. The Copyright Office is
under the immediate control of a Registrar of Copyrights who acts under the
superintendence and directions of the Central Government. The Copyright Office
is currently located in New Delhi .
Intellectual Property Rights – International Organizations, Treaties
& Conventions
WIPO: The World Intellectual Property
Organization (WIPO) is a specialized agency of the United Nations dedicated to
developing a balanced and accessible international Intellectual Property System
(IP) system, which rewards creativity, stimulates innovation and contributes to
economic development while safeguarding the public interest. WIPO was
established by the WIPO
Convention in 1967 with a mandate from its Member States to promote
the protection of IP throughout the world through cooperation among states and
in collaboration with other international organizations. Its headquarters are
in Geneva , Switzerland . The Organization is
headed by the Director General.
Treaties and Conventions: The IPRs are
governed by various International Treaties and Conventions to be followed by
all WTO member countries. They are as follows:
·
The Paris Convention for the
Protection of Industrial Property.
·
The Berne Convention for the Protection of Literary and Artistic
Works.
·
The WIPO
Copyright Treaty (WCT).
·
The
Patent Cooperation Treaty (PCT).
·
Budapest Treaty on the International Recognition of
the Deposit of Microorganisms for the Purposes of Patent Procedure.
·
The Madrid Agreement Concerning the International Registration
of Marks and the Protocol Relating to the Madrid Agreement.
·
The Hague Agreement Concerning the International Deposit
of Industrial Designs.
·
The
Trademark Law Treaty (TLT).
·
The Patent
Law Treaty (PLT).
·
Treaties
on Classification.
·
Special
Conventions in the Field of Related Rights: The International Convention for
the Protection of Performers, Producers of Phonograms and Broadcasting.
·
Organizations
(“the Rome
Convention”).
Other Special Conventions
·
The WIPO
Performances and Phonograms Treaty (WPPT).
·
The
International Convention for the Protection of New Varieties of Plants.
·
The
Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”)
and WIPO-WTO Cooperation.
·
Progressive
Development of International Intellectual Property Law.
Among the above, the TRIPS Agreement is the most important
international agreement for the protection of intellectual property. It is
binding on all members of the WTO and enforceable through the WTO’s dispute
settlement system. It sets minimum
standards of protection for all IPRs instruments, but also leaves governments
important flexibilities to design IPRs regimes to suit domestic needs.
IPRs and MSMEs
It is a well known fact that over ninety percent of enterprises
in India
are in the MSME sector and they are among the major driving forces for
innovations. MSMEs which are continuously creating new products, brands, and
ideas stand to reap greater benefits from innovation if they consider the full
range of intellectual property (IP) issues in new product development.
Intellectual
property protection helps MSMEs to:
·
prevent competitors from copying or imitating
their products or services;
·
create market identity through trademarks;
·
increasing market value of the business;
·
avoid waste expenditure in R&D and
marketing;
·
increase access to finance and venture capital;
·
minimize litigations through avoidable
infringements of rights;
·
negotiate IP-based licensing, franchising or
other contracts; and
·
expand markets.
However
MSMEs are not always successful in fully utilizing the potential of their IPRs.
Most of them are face the following challenges in acquiring IP protection:
·
no adequate knowledge of the IPR system and
procedures for protection of rights;
·
no proper manpower to undertake necessary
groundwork needed for IP acquisition, like searches and filing procedures;
·
high costs of IP protection, including
consultant fees; and
·
resource constraints to challenge bigger firms
with competing claims.
The Govt. of
India and State Governments are encouraging IPRs with various incentive
schemes. There is a need for serious consideration of IPR value also as an
asset for financing enterprises to modernize and encourage R&D and
innovations.
Conclusion
Registering an IP
and creating value out of it gives businesses an incentive to invest in further
research and development and fostering more innovation in products and
processes. The time has also come now for financial institutions to consider
IPR assets in the valuation of businesses as is the practice in Western
Countries. This will give the IP owners/ holders the confidence to share new
technologies through collaborations, joint ventures and licensing agreements,
thus exposing them to a wide spectrum of business opportunities. Governments at
Central and State may also conduct more awareness meets and financial
incentives to MSMEs for IPRs.
1 comment:
I really appreciate your post. It is so interesting and informative. I will come to see your post again. Bollywood saree
Post a Comment