View of INTELLECTUAL PROPERTY RIGHTS AND WELFARE OF HUMAN SOCIETY

(1)

VOLUME: 08, Special Issue 04, (ICESD-2021), Paper id-IJIERM-VIII-IV, June 2021

44

INTELLECTUAL PROPERTY RIGHTS AND WELFARE OF HUMAN SOCIETY

Dr. Chetna Dubey

Associate Professor, Department of Humanities

Abstract- Intellectual property rights (IPR) have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. IPR provide certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation.

There are several types of intellectual property protection like patent, copyright, trademark, etc. Patent is a recognition for an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial application. IPR is prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity.

Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty welfare is a type of government support intended to ensure that members of a society can meet basic human needs such as food and shelter. In a welfare state, the State assumes responsibility for the health, education, and welfare of society, providing a range of social services such as those described. From a UNDP perspective, human welfare is primarily a matter of education, health and income, as reflected in the HDI, a composite of three social welfare variables (a long and healthy life, acquisition of knowledge and a decent standard of living).

Keywords: intellectual property, license, patent. UNDP:- United Nations Development Programme . HDI:- Human Development Index.

1 INTRODUCTION

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refers to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.

1. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP play a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with the innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting a new technology in the market place.

2. The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D.

3. IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in this way aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth.

4. The laws and administrative procedures relating to IPR have their roots in Europe.

The trend of granting patents started in the fourteenth century. In comparison to other European countries, in some matters England was technologically advanced and used to attract artisans from elsewhere, on special terms. The first known copyrights appeared in Italy. Venice can be considered the cradle of IP system as most legal thinking in this area was done here; laws and systems were made here for the first time in the world, and other countries followed in due course.Patent act in India is more than 150 years old.

5. The inaugural one is the 1856 Act, which is based on the British patent system and it has provided the patent term of 14 years followed by numerous acts and amendments.

(2)

45

1.1 Objectives

The following are the objectives of intellectual property rights:-

1. It helps in protecting the ownership and originality of the individuals‘ creation.

2. It provides recognition to the concerned person or authority.

3. It allows owners of intellectual property to have financial benefits from the property they have created.

4. They are provided financial incentive for the creation of and also to incur the cost of investment in intellectual property.

5. Such rights motivate individuals creativity and thus also contributes to economic growth.

6. It can also offer some economic aid to the holder of the right, through the monopoly of their creations.

7. It improves the financial status of the individual as well as of the economy of the country.

2 LITERATURE REVIEW

Intellectual property rights (IPRs) have become important in the face of changing trade environment which is characterized by global competition due to: high innovation risks, short product cycle, investments in R&D, production and marketing and need for highly skilled human resources.

1. Tiwari, S; 1999: The author in this paper conveys that India signing the TRIPS Agreement relates directly to enforcement of intellectual property rights. There is a set of enforcement standards which all members of the World Trade Organization are obliged to follow set by the agreement: this includes:

1. General guidelines to be followed by the Members.

2. The provisions describe civil.

3. Administrative and criminal procedures.

4. Border measures for enforcing their intellectual property right.

5. For developing countries some possible areas are identified where changes would be needed. Thus this emerged as a compliant procedure to be followed and implement the IP law in India.

2. Barbiroli, Giancarlo 2001; The author in this article explains the aspects of global performance : ―internal‖ and ―external‖, impacts, the indicators can measure the materials, energy, environmental, operational, volume, inputs effectiveness/efficiency of a process, the quality and environmental performance of a product, both at the technical and economic level. The socio-economic sphere, they can measure the effects produced by a partially or radically new technology on total and intellectual employment, and on the environment.

Within the strategic sphere, they can measure domestic and international importance, the degree of indispensability, and the knowledge advancement. Moreover, at the company sphere, data can be drawn 6 to 12 months after the innovation has been implemented, while at the macro-sphere it is advisable to wait for 1 to 2 y.

3. Lall, Amar Raj; Khurana, Vinod; 2002: The author in this article evaluates and discusses about the outline of some of the issues arising in connection with brand valuation in the changing economic scenario their Types of brands, their valuation, intangible and tangible benefits of brand valuation

4. King, Kelvin 2002, in this paper the author discusses intellectual capital valuation concepts, methods and procedures applied value to intellectual property. Three broad categories of valuation methods, 1} market based 2} cost based 3} estimates of future economic benefits. The author explains the phenomena of valuation process of IP and creating intellectual capital with its implications.

5. Adam Jolly, Jeremy Philpott 2004, the author in this chapter evaluates the importance of creating ownership on different aspects such as brands. Also 8 | P a g e emphasizes that how a brand holds an impact beyond a product in the memory of a consumer. The beneficial aspect of ownership as well as transfer of rights over brands are highlighted. The consumer registration and preferences towards the brands and its effect on

(3)

46

the demand of the product is considered with a term „the trade mark and associated goodwill‟ in licensing agreements.

3 RATIONALE OF STUDY

Filing for intellectual property rights not only helps innovators protect their invention, but also provides better collaboration and funding opportunities.

India's research output had an annual growth rate of 9% from 2013 to 2017. This was considered to be one of the most productive periods in Indian research scenario. In 2019, India's position rose to 36 from 44 (2018) in the International Intellectual Property (IP) Index. Ironically, increased research did not amount to increase in IP applications, which continued to be limited. In 2017-18, 3,50, 546 applications were received by the IP offices under the Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry which was slightly better than 2016-17, when the total applications were 3, 50,467.

The annual review of the international patent system, administered by the World Intellectual Property Organisation (WIPO) claimed that only 6% of Patent Cooperation Treaty (PCT) applications originating from India were filed by universities in 2018. This implies that young researchers need to know more about IP rules and rights.

3.1 Increased need for IPRs

With the increasing focus on innovation, research and cross-border collaborations, need to learn about intellectual property rights (IPRs) to safeguard their inventions has increased among the students. "As countries turn to innovation and creativity for sustainable development, need to understand the importance of IPRs has increased. The demand for IP is increasing, especially in developing countries," says a spokesperson from WIPO.

In contemporary times, the research is translational and transforms into services or products. IPRs help in protecting as well as commercializing the inventions. "If the innovations are patented and taken up for commercialization by the startups, it will give a competitive advantage to the inventors and entrepreneurs," says Nithin V George, TEOCO chair associate professor, Electrical Engineering, IIT Gandhinagar.

3.2 Integrating IPRs in Curriculum:-

IPRs have various verticals including patent, trademark, design and copyright, where some aspects are more talked about in the academic community than others. Experts believe that the foundational awareness regarding the rights of a creator needs to be developed in students from the school level.

Vikas Dhar, CEO and founder, TekIP Knowledge Consulting - a technology and patent consulting firm, calls for the need to have a culture of respecting the rights of a creator and giving due credit while using someone else's creation. "Students will grow on to get into the professional world where they will develop and exercise IP rights, hence it must be made a part of the academic curriculum at school and university level with increasing sophistication in the pedagogical approach," he adds.

Echoing Dhar, Ashutosh Kumar Srivastava, who specialises in IPR laws and teaches at the Delhi University's Faculty of Law, says that the UGC can introduce a compulsory 2- credit course on IPRs, similar to the environmental studies course in all the higher education institutes (HEIs).

3.3 Way Forward:-

The Indian Institutes of Technology (IITs) continue to file maximum patents, with 540 applications in 2017-18, followed by Amity University with 119 applications. The IPR ecosystem in non-premier institutes across the country needs prolonged efforts to make students aware of the importance and filing procedures.

Dhar adds that the leadership in the funding agencies are pushing innovators/entrepreneurs towards owning their technology before asking for funds. Hence, when an innovator chooses to file for an IPR, it provides other benefits beyond protection such as licensing, better collaboration and funding opportunities.

(4)

47

"The academic community needs a higher level of sensitisation and exposure to patenting and technology commercialisation. All academic and research institutions should also develop in-house expertise for assessment and filing of provisional patent applications as well as commercialisation of patented technologies," adds George.

4 IMPORTENCE OF INTELLECTUAL PROPERTY RIGHTS

Intellectual property (IP) contributes enormously to our national and state economies.

Dozens of industries across our economy rely on the adequate enforcement of their patents, trademarks, and copyrights, while consumers use IP to ensure they are purchasing safe, guaranteed products. We believe IP rights are worth protecting, both domestically and abroad. This is why:

4.1 Intellectual Property Creates and Supports High-Paying Jobs:-

1. IP-intensive industries employ over 55 million Americans, and hundreds of millions of people worldwide.

2. Jobs in IP-intensive industries are expected to grow faster over the next decade than the national average.

3. The average worker in an IP-intensive industry earned about 30% more than his counterpart in a non-IP industry

4. The average salary in IP-intensive industries pay $50,576 per worker compared to the national average of $38,768.

4.2 Intellectual Property Drives Economic Growth and Competitiveness:-

1. America‘s IP is worth $5.8 trillion, more than the nominal GDP of any other country in the world.

2. IP-intensive industries account for over 1/3– or 38%– of total U.S. GDP.

3. These industries also have 72.5% higher output per worker than the national average, valued at $136,556 per worker.

4. IP accounts for 74% of all U.S. exports- which amounts to nearly $1 trillion.

5. The direct and indirect economic impacts of innovation are overwhelming, accounting for more than 40% of U.S. economic growth and employment.

4.3 Strong and Enforced Intellectual Property Rights Protect Consumers and Families:-

1. Strong IP rights help consumers make an educated choice about the safety, reliability, and effectiveness of their purchases.

2. Enforced IP rights ensure products are authentic, and of the high-quality that consumers recognize and expect.

3. IP rights foster the confidence and ease of mind that consumers demand and markets rely on.

4.4 Intellectual Property Helps Generate Breakthrough Solutions to Global Challenges:-

1. Nearly all of the 300 products on the World Health Organization‘s Essential Drug List, which are critical to saving or improving people‘s lives around the globe, came from the R&D-intensive pharmaceutical industry that depends on patent protections.

2. Innovative agricultural companies are creating new products to help farmers produce more and better products for the world‘s hungry while reducing the environmental impact of agriculture.

3. IP-driven discoveries in alternative energy and green technologies will help improve energy security and address climate change.

4.5 Intellectual Property Rights Encourage Innovation and Reward Entreprenuers:- 1. Risk and occasional failure are the lifeblood of the innovation economy. IP rights

incentivize entrepreneurs to keep pushing for new advances in the face of adversity.

(5)

48

2. IP rights facilitate the free flow of information by sharing the protected know-how

critical to the original, patented invention. In turn, this process leads to new innovations and improvements on existing ones.

3. American‘s Founding Fathers so recognized the importance of innovation and ensured that strong IP rights for authors and inventors are protected in the U.S.

Constitution, thus making America the world‘s entrepreneural leader— a fact borne out by the overwhelming number of patents, copyrights and trademarks filed by the U.S. annually.

Bringing all of these important and diverse points together is the fact that protecting IP is a non-partisan issue that is shared by a broad coalition of interests. These rights are embraced by all sectors of industry-small, medium and large companies alike-and by labor organizations, consumer groups, and other trade associations we bring together.

Intellectual property rights are accepted all over the world due to some important reasons.

They were essentially recognized for the acceptations of these rights are:- 1. Provides incentive to the individual for new creations.

2. Providing due recognition to the creators and inventors.

3. Ensuring the material reward for intellectual property.

4. Ensuring the availability of the original products.

5. For economic growth and advancement in technology sector protection of Intellectual property protection is important.

They are benefited for the growth of the business in the field of technology.

5 PROCESS TO GET PATENT

In India, the Patents Act is the central body dealing with the filing and regulation of an existing and new patent. This Act suggests that either the inventor, his assignee or one of his legal representatives (in case the inventor is deceased) can apply for one in the head office of Indian Patent Office or the branches of the office, depending on the jurisdiction of the applicant.

In case the applicant is not an Indian citizen, he or she must file the application in their respective jurisdiction (where the address for service of the applicant is located).

5.1 Steps for application of patent:-

You can choose to apply for a patent all by yourself or take help from registered agents.

When it comes to the cost of getting a patent, the following two elements come into the picture:-

1. Government fees for forms and renewals.

2. If you choose to have an agent, then the charges for the professional.

3. It is always recommended to get a patent through a registered agent. Here are the steps required to apply for a patent:

Step 01: Invention Disclosure:-

The first step is to disclose your invention to the professional. This is done by signing a non-disclosure agreement.

Pro-tip: It is recommended to submit each known fact about your invention. Do not hold anything back.

Step 02: Patentability search:-Usually, a professional charges a fee (approx INR 10,000 to INR 20,000) at this step. At this stage, your professional performs extensive research for prior evidence in all the possible databases. Further, he or she builds a patentability search report based on your invention.

Step 03: Decision to file an application for patent:-This is where the actual process begins. After detailed research about (any) existing history of your invention, you can decide if you want to go ahead with the patent application filing.

Please Note: Your invention must have an ‗inventive step‘ as compared with existing prior art pieces to qualify for a patent. It must have either ‗technical advanced‘ or ‗economically significant‘ or both, over any existing piece of arts.

(6)

49

The step where you decide to go ahead with the filing process by writing an application is called patent drafting.

Step 04: Patent Drafting:-You can choose to draft the application on your own or take a professional‘s help to do this. If you choose to take help, you might have to pay somewhere around INR 20,000 to INR 30,000.

Please note: This is one of the most crucial steps of the entire process. It requires both technical and legal understanding. If not drafted the right way, all the efforts you out in gets wasted. Hence it‘s a good idea to take professional help here.

Step 05: Filing the patent application:-After you are done with a review of your patent draft and are satisfied with the scope and details, you are ready to file for a patent.

You can file the patent application in a prescribed manner with appropriate forms with fees.

You need to pay fees of INR 1,600 or 4,000 or 8,000 (based on the type of application) while submitting the patent application in the patent office. If you do not file a request for early publication, the patent application will be published on expiry of 18 months.

Step 06: Request for examination:- This is the step where the applicant is required to request the Indian patent office to examine your patent application, within 48 hours.

Request for examination fees ranges from INR 4,000 to INR 20,000 (based on the type of applicant).

Step 07: Responding to objections (if any):- The draft and the report submitted to the officers in the patent office are thoroughly examined at this step. At this step, there is a chance for the inventor to communicate his novelty or inventive step over any other piece of art found during the assessment. If all the things are well clarified and solved, the patent application is almost ready to come to action.

Step 08: Grant of patent:- If the application meets all the prescribed requirements, it is placed in order for the grant. Usually, the final grant of the application is notified through a journal that is published

Step 09: Renewal of your patent:- Usually, a patent is in force for 20 years. On completion of 20 years, the owner is required to renew the patent by paying a small fee.

5.2 Punishment Due to Fragment of Patent Act:-

Where a person fails to comply with the directions prescribed under Section 35 related to secrecy provisions of certain inventions or where residents make an application for the grant of a patent outside India without prior permission (Section 39) is punished with imprisonment for a term which may extend to two years or with fine, or both.

Therefore, contravention of secrecy provisions relating to certain inventions is penalized under the Act.

The secrecy of an invention typically involves prohibiting or restricting the publication or communication of information related to the invention and the need to preserve the invention to maintain its worth. Thus, any breach of such secrecy would attract penal consequences. Moreover, a person who is a resident of India can make an application for the grant of a patent for an invention outside India only with the authority of a written permit granted by the Controller of Patents and failure to do so without prior permission shall also attract penal consequences.

Where a person makes a false entry in any register maintained under the Patents Act or makes false writing claiming it to be a copy of an entry in the register or produces or tenders any writing or entry knowing that it is false evidence, shall be punished.² Therefore, falsification of entries in the register etc. is punishable with imprisonment for a term which may extend to two years or with fine, or both.

Section 120 of the Act penalizes instances of unauthorised claims to patent rights. Thus, any person who falsely represents any article sold by him to be patented in India or is the subject of an application for a patent in India is punished with a fine which may extend to one lakh rupees. A person may falsely represent an article to be patented in India:-

1. If the article is stamped, engraved or impressed on or applied to with the words

―patent‖ or ―patented‖

(7)

50

2. Any other word which expresses or implies that a patent for the article has been

obtained in India.

3. If the article is stamped, engraved or impressed on or applied to with the words

―patent applied for‖, ―patent pending‖

4. Any other words which imply that an application for a patent has been made in India for the article.

Moreover, a person will be punished if he uses the words ―patent office‖ or any other word on his place of business or any document issued by him which can reasonably lead to the belief that his place of business is officially connected with the patent office.

Therefore, wrongful use of the words ―patent office‖ is punishable with imprisonment for a term which may extend to six months or with fine or both.

A person shall also be punished if he refuses or fails to provide:-

1. Any information to the Central Government which he is required to furnish under Section 100 (5).

2. Any information or statement to the Controller which he is required to furnish under {Section 146}.

Therefore, failure or refusal to supply information is punishable with fine which may extend 10 lakh rupees. Furthermore, where a person is required to furnish information and he furnishes:-

1. False information or statement.

2. The information which he knows is false.

3. The information which he has reason to believe is false.

4. The information which he does not believe to be true.

Shall be punished with imprisonment which may extend to 6 months, or with fine or both.

Where a person contravenes the provisions of section {129} i.e., fails to comply with the restrictions to practice as patent agents shall also be punished. Therefore, practice by non- registered patent agents attracts punishment with fine up to 1 lakh rupees in case of a first offence and up to 5 lakh rupees in the case of a second or subsequent offence.

Where an offence is committed by a company under the Act, the company and every person who is in charge and responsible towards the business conducted by the company at the time of the commission of the offence shall be guilty of the offence and proceedings shall be initiated against the offender and punished accordingly.

However, a person shall not be punished if he proves:-

1. That the offence was committed without his knowledge; or

2. He exercised all due diligence to prevent the offence from being committed.

3. Where an offence is committed by a company and it is proved that the offence has been committed:

4. With the consent or connivance of; or

5. The commission of the offence can be attributed to any neglect on the part of any director, manager, secretary or any other officer of the company.

Then such a person will also be considered guilty of the offence which has been committed and proceedings shall be instituted against him and be punished accordingly.

Therefore, offences committed by companies is punishable under the Act but no specific terms of punishment have been prescribed in case of such offences committed by a company under the Act.

6 CONCLUSION

It is obvious that management of IP and IPR is a multidimensional task and calls for many different actions and strategies which need to be aligned with national laws and international treaties and practices. It is no longer driven purely by a national perspective.

IP and its associated rights are seriously influenced by the market needs, market response, cost involved in translating IP into commercial venture and so on. In other words, trade and

(8)

51

commerce considerations are important in the management of IPR. Different forms of IPR demand different treatment, handling, planning, and strategies and engagement of persons with different domain knowledge such as science, engineering, medicines, law, finance, marketing, and economics. Each industry should evolve its own IP policies, management style, strategies, etc. depending on its area of specialty. Pharmaceutical industry currently has an evolving IP strategy. Since there exists the increased.

The category of offences which attract penal consequences under the Act include violation of secrecy provisions with respect to certain inventions (defence purposes), making false entries in the register, claiming patent rights in an unauthorised manner, using the words ―patent office‖ wrongfully, refusal or failure to supply information, non-registered patent agents practising or where offences are committed by companies.

Therefore, the provisions related to penalty have been incorporated in the Patents Act, 1970 to safeguard and prevent a patent from being illegally misused or exploited and also to preserve the interest of the patentee who has an exclusive right over the invention which has been granted a patent. The Act prescribes punitive as well as pecuniary punishment for offences committed under the Act.

The penal consequences are important for the larger interest of the society and the patentee to ensure respect for the law. The provisions on penalty under the Act provide the beneficiaries with a real and effective remedy for the violation of their rights. Therefore, penal sanctions have a repressive purpose and mainly serves to protect the interest of the patentee‘s exclusive rights.

PREFERENCES

1. Singh R. Vol. 1. New Delhi: Universal Law Publishing Co. Pvt. Ltd; 2004. Law relating to intellectual property (A complete comprehensive material on intellectual property covering acts, rules, conventions, treaties, agreements, case-Law and much more) [Google Scholar]

2. Subbaram NR. Hyderabad: Pharma Books Syndicate; 2003. What everyone should know about patents? [Google Scholar].

3. Shukla S. Patents: An Introduction. 2004; 3:14–7. [Google Scholar].

4. The Patents Act, 1970 (Act 39 of 1970), s. 118.

5. The Patents Act, 1970 (Act 39 of 1970), s. 119.