View of INTELLECTUAL PROPERTY RIGHTS: INDIAN CIRCUMSTANCES

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

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INTELLECTUAL PROPERTY RIGHTS: INDIAN CIRCUMSTANCES

Dr. Tabi Nandan Joshi, Prof. Shejal Gupta St. Paul Institute of Professional Studies, Indore

Abstract - Universal competitiveness has redefined business strategies globally and the focus has definitely shifted to examining how our facts assets can reposition our stand in the world marketplace. It means that the process of wealth making is changing from resource based to facts based. Now it will depend on mental power and our capacity to create and solve problems. As a outcome, in future the assets would more and more come out of our intellect.

And the goods and services being shaped by our brainpower would be marketed in the worldwide village. Now a crucial issue to be addressed is that how can this property of knowledge be sheltered? And prior to this we need to reflect that how the understanding can be converted into property? Since knowledge is conceptual and is not like a vehicle or a house which can be safe and secured against stealing. If a person gains knowledge it does not diminish that available to others. There are two ways of off-ramp knowledge into property.

One way is privacy, which is used to protect types of information trade secrets, know – how and rituals. Another way is Intellectual Property Laws, including Copyright, Patent, Registered Industrial Design and Trademark, legislation and conventions.

Keywords: Patent, Copyright, Trademark, Integrated Circuits, Patentability, Infringement, Commercialization, Novelty.

1 INTELLECTUAL PROPERTY RIGHTS – DEFINED

Intellectual property rights are provided as a protection and spur to the creators, whose imagination could otherwise be unreservedly used by others. The society expects the creators to make their occupation accessible in the market where this work can be buy and sold. But while the society needs to encourage creativeness, it does not want to help the grooming of destructive market power. Intellectual Property Rights are legal rights, which result from intellectual activity in industrial, scientific, literary & artistic fields. These rights protects creators and other producers of rational goods & services by conceding them certain time- limited rights to control their use. These are indefinable and no worn out utilization

And for this reason, firm limits are built in the rights granted to the creator, in terms of time and space, by the state. Rights are granted for fixed period of time and protect only the fixation of creativity in material form.

1.1 Basic of IPR[1,2]

Intellectual property is an indescribable creation of the human being, usually uttered or translated into a physical form that is assigned certain rights of possessions. Examples of intellectual property include or a patent on the process to manufacture chewing gum, an author's copyright on a book or article, unique design elements of a web site, a distinctive logo design representing a soft drink company and its products. Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. Intellectual property (IP) refers to creations of the mind: literary, inventions, and artistic mechanism, and symbols, names, images, and designs.

1.2 Objectives of IPR[3,4,5,6]

Intellectual property Right (IPR) is a term used for various officially authorized entitlements which attach to certain types of information, facts, or other intangibles in their expressed form. The container of this legal entitlement is generally entitled to implement various exclusive rights in relation to the subject matter of the Intellectual Property. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that Intellectual Property rights may be protected at law in the same way as any other form of property. Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest. Intellectual property rights (IPR) can be defined as the rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of their creations for a certain period of time.

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1.3 Types of IPR[7,8,9,10,11,12,13,14,15,16,17]

Patents Trademarks

Copyrights and related rights Geographical indications Industrial designs Trade secrets

Layout design for integrated circuits Protection of new plant variety.

1.4 Intellectual Property Regime – Indian Scenario

A knowledge-based creation requires protection so that the funds made by companies in Research and Development may be warranted. It has been seen that developing countries, including India, provide a very weak intellectual property protection. India accredited in principle the case for strict IPR protection, but in India, this could be finished only in phases suited by its own ground reality. The certainty - absence of international IPR protection for some decades had spawned service for millions, so an overnight crack down on IPR violators would foment social unrest.

1.5 Concept Related Patents Types of Patent [18,19,20]

Utility Patent

If you have a new, useful invention that is not obvious to others in the field of invention, you may qualify for a utility patent. Utility patents are grouped in five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of an existing idea.

Often, an invention will fall into more than one of the categories. For instance, computer software can usually be described both as a process (the steps that it takes to make the computer do something) and as a machine (a device that takes information from an input device and moves it to an output device). Regardless of the number of categories in which an invention falls, only one utility patent may be issued on it.

Among the many types of creative works that might qualify for a utility patent are biological inventions; new chemical formulas, processes, or procedures; computer hardware and peripherals; computer software; cosmetics; electrical inventions; electronic circuits; food inventions; housewares; machines; and magic tricks. If you acquire a utility patent, you can stop others from making, using, selling and importing the invention.

1.6 Design Patent

If you create a new and original design that ornaments a manufactured device, you may qualify for a design patent.

Design patents are granted for any new or original Ornamental design for an article of manufacture. A design patent protects only the appearance of the article and not the article itself. An inventor can easily register both a utility patent and a design patent.

1.7 Plant Patent

The least-frequently issued type of patent are plant patents—granted for any asexually or sexually reproducible plants that are both novel and nonobvious. This may include cultivating different types of plants to create mutants or hybrids and also newly found seedlings. This patent protects the owner by keeping other individuals or businesses from creating the type of plant or profiting from the plant for at least 20 years from the date of the application

1. Industrial Property. Industrial property includes Inventions (Process, Products and Apparatus); Industrial Designs (Shapes and Ornamentation) and Marks and Trade Names to distinguish goods.

2. Copyrights. Copyrights broadly include Literary Work, Musical Works, including any accompanying Words; Dramatic Works, including any accompanying Music;

Pantomimes and Choreographic Works; Pictorial, Graphic and Sculptural Works;

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Motion Picture and other Audiovisual Works; Sound Recordings and Architectural Works.

2. TANGIBLE AND INTANGIBLE PROPERTY[21,22]

Property is an external thing that can be owned or possessed. Property can be divided into two categories: tangible and intangible.

2.1 Tangible Property

In law is, literally, anything which can be touched, and includes both real property (or, in civil law systems, immovable property) and personal property (or moveable property), and stands in distinction to intangible property. However, some property, despite being physical in nature, is classified in many legal systems as intangible property rather than tangible property because the rights associated with the physical item are of far greater significance than the physical properties. Principally, these are documentary intangibles. For example, a promissory note is a piece of paper that can be touched, but the real significance is not the physical paper, but the legal rights which the paper confers, and hence the promissory note is defined by the legal debt rather than the physical attributes. A unique category of property is money, which in some legal systems is treated as tangible property and in others as intangible property. Whilst most countries legal tender is expressed in the form of intangible property ("The Treasury of Country X hereby promises to pay to the bearer on demand...."), in practice bank notes are now rarely ever redeemed in any country, which has led to bank notes and coins being classified as tangible property in most modern legal systems. Tangible property consists of real property and personal property. Real property is property that does not move, such as land and the things that are attached to or built on that land. Personal property is property that can be moved or any other tangible property that can be owned.

Personal property is also called chattels. Chattels that are attached to the land and that cannot be removed without damaging the land are called fixtures. Examples of fixtures are built-in bookcases and ceiling fans.

2.2 Intangible Property

Intangible property consists of property that lacks a physical existence. Examples of intangible property include checking and savings accounts, options to buy or sell shares of stock, the goodwill of a business, a patent, and spousal love and affection. Also known as incorporeal property, describes something which a person or corporation can have ownership of and can transfer ownership of to another person or corporation, but has no physical substance. It generally refers to statutory creations such as copyright, trademarks, or patents. It excludes tangible property like real property (land, buildings and fixtures) and personal property (ships, automobiles, tools, etc.). In some jurisdictions intangible property are referred to as chooses in action. Intangible property is used in distinction to tangible property. It is useful to note that there are two forms of intangible property - legal intangible property (which is discussed here) and competitive intangible property (which is the source from which legal intangible property is created but cannot be owned, extinguished, or transferred). Competitive intangible property disobeys the intellectual property test of voluntary extinguishment and therefore results in the sources that create intellectual property (knowledge in its source form, collaboration, process-engagement, etc) escaping quantification. Generally, ownership of intangible property gives the owner a set of legally enforceable rights over reproduction of personal property containing certain content. For example, a copyright owner can control the reproduction of the work forming the copyright.

However, the intangible property forms a set of rights separate from the tangible property that carries the rights. For example, the owner of a copyright can control the printing of books containing the content, but the book itself is personal property which can be bought and sold without concern over the rights of the copyright holder. The recent rise of electronic documents as blurred the distinction between pure intangibles and documentary intangibles.

2.3 Green Technology

The term 'Green Technology' signifies any kind of environmental friendly or clean technology. It further relates to the products and innovations of devices used in

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environmental science, green chemistry, environmental monitoring, promote sustainability and conserve the natural environment.

Green technology includes varied nature of products and systems. The International Patent Classification Committee developed an "IPC Green Inventory" which facilitates searches for patent information relating to green technology.

2.4 IPC Green Inventory includes following categories of technology:

Alternative Energy Production; Energy Conservation; Nuclear Power Generation;

Transportation; Waste Management; Agriculture Forestry; and Administrative, Regulatory and Design Aspects.

3 NEED OF GREEN IP

Though there is a regular rise in demand on of carbon-based energy sources allowing for the infinite global energy demand, it is prima facie clear that it is utmost crucial to safeguard the limited and finite natural property for continuous survival and sustainable development of the human race.

1. PATENT

2. In order to enhance innovation and develop Green Technology, patent protection plays the most crucial role. In India, patents are governed by the Indian Patent Act, 1970.

Patent is a right granted to the inventor to exclude others from making, using, selling or exploiting an invention commercially without the prior permission of the inventor.

3. Grant of patent protection to an inventor safeguards the novel and unique invention in terms of its originality and utility, developed to meet the exclusive specifications.

Additionally it works as a value – signal generator and further widens the scope for potential technology collaboration which aids in technological diffusion and development.

3.1 Indian Patent Act 1970[23,24,25]

History of Patent Acts in India:

In India the grant of patents is governed by the patent act 1970 and rules 1972 which is operative in the whole of India.

3.2 Purpose of getting a patent

To enjoy the exclusive rights over the invention. The patent is to ensure commercial returns to the inventor for the time and money spend in generating a new product.

3.3 Patent Law - Salient Features

Examination on request. Term of patent 20 years. Both product and process patent provided, Both pre-grant and post-grant opposition, Fast track mechanism for disposal of appeals Provision for protection of bio-diversity and traditional knowledge, Publication of applications after 18 months with facility for early publication , Substantially reduced time-lines

Safeguards in the Patent Law: Compulsory license to make certain availability of drugs at reasonable prices, condition to deal with public health emergency, Revocation of patent in public interest and also on security considerations.

3.4 Patentable Inventions: Invention must

Relates to a process or product or both, Be new, Involves an inventive step.

3.5 Applications of IPR [26,27,28,29,30,31]

It is applicable for determination of Patent filling and Patent Granting Processes, for purpose of Patent Revocation and Patent Infringements, for determination of Commercialization and Patent Licensing Processes. Intellectual property right is a government right is granted by government of India for maintaining the quality and model of drug or drug related product or services. Intellectual property right is important for determination of product stability and safety. It is applicable for industrial, Pharmaceutical, critical, chemical, drug progress, drug synthesis and Manufacturing industries. It is applicable for industrial, scientific, literary, artistic field. Intellectual property right is applicable of ANDA, NDA and INDA analysis of

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Drug Product or Pharmaceutical Formulations. It is appropriate for testing, analysis, characterizing, the drug properties and drug quality. Intellectual property right is special right is granted by government of India for protection of invention of inventor. It is applicable for Protection of originality or novelty of work of author has a role of copyright. It is act has certification as well as identification mark for identification of product in would wide market has work of trademark. It is important for maintaining protection of patent or dealing oriented data has function of Trade secrets. It is applicable for Maintaining the utility, designing and Novelty of Patented data. It is applicable for resolve of law of Indian system or Indian legal system. It is important for determination simple ornamental or industrial designing and Layout oriented semiconductor devices. It is Applicable for determination of Anticipation of data as well as Patent data under prior art or not is conducted by IPR. It is having important application for Indian Patent act 1970, and also determination of Amendment of patent act in 1999, 2002, 2005 and 2006.

4 CONCLUSION

Intellectual Property right is concerned with scholar activity in industrial, scientific, literary &

artistic fields. Intellectual Property Right is a Government Right which is granted by the Government of India. These rights protect creators and other producers of intellectual goods

& services by granting them certain time-limited rights to organize their use. The rights given to people over the creation of their minds. They usually give the creator an exclusive right over the use of his/her creations for a certain period of time. It is exclusive right is granted by government for protection of Novelty as well as Originality of Patent oriented Data and Maintaining Quality, Safety, Efficacy and Standard or Certification of drug, Any Product and Services. Within knowledge based, innovation driven economies, the intellectual property system is a dynamic tool for wealth creation, providing an incentive for enterprises and individuals to create and innovate a fertile setting for the development of , and trade in, intellectual assets, and a stable environment for domestic and foreign investments.

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