Forms of Intellectual Properties

Intellectual Property Rights

Intellectual Property (IP) is a non-corporeal, intangible form of property and exists in various forms including, literary, artistic, and technological works, performances of performing artists, phonograms and broadcasters, scientific discoveries, expression of ideas, inventions in various technological fields or industries, industrial designs, commercial names and designations, trademarks and service marks, protection from unfair competition, plant variety and farmers rights, conservation of biodiversity, geographical indications etc.

A right is a legal entitlement created and recognized under the law of the land that can be justified and protected which manifests a remedy when said right has been violated since it is unlawful to violate another’s right. Various kinds of rights exist ranging from a human’s inherent rights under natural justice such as human rights, and right to privacy, to statutory, legal rights on things such as the right to property, which may be owned, possessed and transferred. Rights may be universal and general for citizens of a country such as fundamental rights, to exclusive rights where the right-holder has the mandate and monopoly to exclude others from certain acts without his authorization such as the right to property. Rights can either establish as liberty giving the right-holder freedom to conduct or restrain another from an act or establish under a license where the right-holder is given consent to an act by another.

Intellectual Property Rights (IPR) are legal, statutory rights given by a governing authority of jurisdiction for disclosure of products of the mind, creativity, and intellectual activity in the technological, scientific, industrial, literary, and artistic fields and are commercially utilizable in industry. IPR originate from the existence of an IP and are given to protect the IP of the right-holder as exclusive rights where the IPR-holder has the capacity to authorize or prevent another from using, making, selling, importing, or in any way profiting from the unlawful and unauthorized use of such IP. Moreover, a remedy is provided to overcome an infringement i.e., the violation of the IPR. Another way to understand IPR would be in terms of exclusive rights given for the disclosure of creative or innovative content which is of intangible nature that manifests in the form of a tangible thing or physical property.  

Under the IPR regime, the rights of the right-holder encompass making, using, selling, marketing, importing, i.e., aspects of commercially exploiting and benefiting from the IP disclosure. However, in order to procure said IPR, the creator, author, an inventor has to fulfill certain restrictions that include deposit, registration, as well as satisfying the hypotheses of originality such as for Copyrights and technical advancement over the existing art for Patents as examples. Thus, IPR is not without restrictions.

IPR regime protects the legal rights that establish out of the existence of an IP. The requirement for the IPR regime for such protection can be explained in terms of giving statutory rights associated with the disclosure of their expression and innovation to account for the moral and economic rights of creators and authors in balance with the users rights which are the public at large to access and build from such creations and innovations. Furthermore, in modern times, IP has become the mainstay of a country’s development and culture and it is pertinent to recognize and provide for IPR in order to support and promote creativity, invention, and human endeavour, as well to disseminate the application and access to the same to encourage fair use and development therefrom by the users of such IP to culminate in strong social, economic and public health developments in the country as well as across the world. 

Types of IPR    

There are several IP and associated IPR including Patent (for innovation and invention in technological fields and industry), Trade Marks and Service Marks (for brands and logos associated with products and services), Copyright (for literary, artistic, and creative works), Industrial Design (for aesthetic designs), Plant Variety Protection (for plant varieties, breeders and farmers rights), Trade Secrets (for confidential information), Geographical indications (for products arising out a particular geography and get a particular characteristic peculiar to said geography), Semiconductor chip layouts (for layout of integrated circuit chips). In addition to the said IP and IPR there is an ever-growing space, opportunity, and range for as yet alternative and evolving IP, with new IP and IPR being created and introduced to the intangible economy and industry.

Patent

The patent is a right given to an inventor for an invention disclosure to make, sell, use, offer to sell or import said invention and excluding others from the said activities. Patents grant exclusive rights conferred by the government of territorial jurisdiction in return of public disclosure of inventions by the inventors that fulfill the criteria of being for patentable subject matter under a jurisdiction, novelty, inventive step, and utility in industry. These rights establish a monopoly of the IPR-holder where the Patentee can prevent others from using the patented product or process for example, without his authorization. The IPR for Patentee includes the right of making, selling, using, offering for sale and importing of the patented product or process, for example. The term for Patent i.e., duration of its validity is for a total of 20 years from the date of the first application for Patent. Following the end of the said duration, it enters the public domain for uninhibited use by the public at large.

The patent regime can be seen broadly in two parts consisting of a domestic or national regime and an international regime. Patents are per se granted only within the territorial jurisdiction of and by a national regime such as by the Indian Patent Office (IPO) for India, the United States Patents and Trademarks Office (USPTO) for the United States of America (USA), as well as the European Patent Office (EPO) for the European Union (EU) where after grant of Patent, it needs to be verified in the member states of the EU. These Patents granted in the national jurisdictions cannot be enforced or protected in any other territory outside the granting jurisdiction.

In addition to these national Patent regimes, there are international arrangements. Such international arrangements exist to facilitate rights moving from one country to another at lower costs and while providing more period for evaluation and decision to move forward for an applicant. Also, at the international level treaties exits such as the World Trade Organization (WTO) has an agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS). TRIPS agreement provides guidelines to the member countries related to different aspects of IP including, the standard of protection to provide uniformity across member nations, terms for protection for various IPR especially the minimum terms, criteria for patentability of the subject matter of Patent applications, enforcement mechanisms, etc. This is done to harmonize laws in member nations. Furthermore, there are free trade agreements (FTA) or bilateral investment treaties between countries providing recognition of the IPR laws of one country in another participating country.

National Patent regime – India:

In India, under national Patent law regime there exists a hierarchy going from the IPO for evaluation, examination and grant or refusal of a Patent for an application for a Patent filed at the IPO at the bottom of the chain, to a tribunal for appeals against IPO’s decisions called the Intellectual Property Rights Appellate Board (IPAB) whose decisions may be challenged and appealed in the courts of law going from High Courts with the proper jurisdiction to the Supreme Court at the top of the ladder of appeal. On the other hand, the disputes with respect to enforcement of Patents such as infringement issues or revocation of a granted patent issues may be dealt directly at the courts going from district courts or High Courts to the Supreme Court. In India, the provision is provided under the Patents Act of 1970 as amended in 2005.

International Patent regime:

Under the international law, there are substantive agreements and treaties that govern as to what can be patented which are concerns under treaties such as the Paris Convention, TRIPS, etc., while there are also procedural agreements and treaties that provide guidelines as to who can file a Patent, criteria for patentability of an application for a Patent, fees to be paid, as in the Patent Cooperation Treaty (PCT).

Paris Convention is a highly regarded treaty with a high number of member nations. However, it did not set any minimum standards for a Patent, has no enforcement mechanisms and no dispute settlement mechanisms between its members. Although, it contributed by highlighting a need for an international agreement that overcomes its shortcomings and synchronizes and standardizes the global Patent regime. To address such shortcomings the members of the World Trade Organization (WTO) agreed on and became members to the TRIPS agreement. TRIPS provided with a provision for an agreed-upon term for the Patent across the globe i.e., 20 years from the day of first filing, a uniform patentability criterion for an application to be granted with a Patent only when it fulfills the criteria of novelty, inventive step, and utility, as well as gave an enforcement mechanism for the first time at an international level. With respect to the term of Patent, there is a TRIPS mandate and then the duration is mandatorily fixed at 20 years throughout the member nations. The patent regime allows for the issuance of compulsory licenses.     

Copyright

Copyright is a form of an IPR that gives the creator of the IP the right to make more copies of his work in different forms in the form of economic rights as well as moral rights to prevent misuse or denigration of his work. Copyright is again an exclusive right conferred by the government when applied for registration under the provision of the law. However, it is conferred upon the creator automatically upon the associated IP creation, even if not registered. But for such claiming, the work or IP as printed, published, performed, filmed, or recorded ought to be notified as belonging to the creator, i.e., carrying a copyright notice with or without registration. Interestingly, the term of copyright varies from country to country. Like in India, it is the duration of the life of the author plus an additional 60 years from the year of his passing, while for the USA it is the duration of the life of the author plus an additional 70 years from the year of his passing. Thus, no separate registration is required for their enforcement.

Under the Copyright regime similar to the Patent regime there are two divisions, one at the national level and another at the international level. The national aspect of the copyright regime addresses the limit or boundary of copyright with respect protection and enforcement within a territorial limit of a jurisdiction granting said IPR. In the international aspect of the copyright regime came the bilateral arrangements based on the principle of reciprocity i.e., recognition of the copyright mutually by the partner countries.

Copyright regime is populated by various conventions at the international level, including the Berne convention, universal copyright convention, Rome convention, TRIPS, and WIPO treaties post-TRIPS. These treaties brought in the concepts of national treatment, most favoured nation, kind of works that can be protected under the copyright regime, provided with the term of Copyright protection, also introduced doing away with the need for registration of the copyright rather recognizing its existence from its mere creation, and most importantly with TRIPS came the distinction and separation between an idea and an expression of the idea under the Copyright law that protects the expression of the idea and not the idea itself. Like Patent regime, Copyright regime allows for the issuance of compulsory licences. In India, the provision is provided under the Copyright Act of 1957 as amended in 2012.

Trademark

Trademark is an IPR that involves the use of a symbol or word or the like to provide an identity to a good or service with respect to its provider or its origin. Trademarks are also exclusive rights conferred by the government upon application for registration in a country but, may also be established via long time use establishing a reputation as holding an identity in form of the mark where such IPR is supported by the law of passing off for its protection and prohibiting others from using it even without registration in a territorial national jurisdiction. Trademarks identify the producer or company and provide information regarding the origin of goods and services. The trademarks include symbols, words, marks, etc. Unlike a Patent, when a well-known and well-established trademark’s use is discontinued or the owner of the said IPR wants to take the trademark through rebranding, the said trademark does not enter the public domain. This is because the said trademark (provided it is kept alive by paying the requisite fee) is still associated with the reputation of the company, for example, and it would not be just that its reputation gets hampered due to miscreants misusing the said trademark whether discontinued or discarded for a rebrand. However, if the trademark is not renewed or used it cannot be enforced.

For trademarks, there are again various international agreements and treaties that include the Paris convention, Madrid treaties, Trademark law treaty, NICE agreement on the classification, and the TRIPS agreement. At the international level such conventions and treaties under the Trademark regime harmonized the laws for its member nations, agreed on the term for this IPR, where unlike the limited terms for Patents and Copyrights, the terms for Trademarks are renewable where they may be kept alive indefinitely which is especially useful for international brands, it also follows the principles of national treatment and most favoured nation like for Copyright. Importantly, TRIPS introduced the concept of Servicemarks. Unlike Patent and Copyright regime, Trademark regime does not allow for the issuance of compulsory licences. In India, the provision is provided under the Trademark Act of 1999 as amended in 2010.    

Industrial Design

Industrial Design or Design is another exclusive IPR conferred by the government upon registration in a country. Design pertains to aesthetic disclosures such as shape, configuration, pattern, color, etc. as it is perceived by the naked eye and is pleasing to the eye. However, there is no functional aspect or element associated with the procurement of said IPR. It is not interchangeable with Copyright. Thus, there is a distinction as an IPR protesting artistic works under Copyright and non-functional aspects of industrial design under Industrial Design. It has a limited term duration of 15 years as protection to the IP. However, it is a weaker IPR given the restrictions on its use and enforceability. In India, the provision is provided under the Design Act of 2000 and there has been a draft amendment of 2019.  

Geographical Indications

Geographical Indication (GI) as an IPR is granted to the right holder as a sign to be used on his products, where said products acquire a characteristic quality or reputation owing to the specific geographical origin, due to the place’s geography or attributes of its pe. Examples include Kancheepuram silk saree, Alphonso Mango, Nagpur Orange, and Kolhapuri Chappal, to name a few of the ever-increasing numbers under this IPR.

GI is characterized with respect to the sign indicating an identity to the product for its place or geography of origin. It is imperative that it be established that the qualities, characteristics and reputation associate and identify the product in terms of its place of origin. Such a link between the product and its geographical origin should be evident.

The concept of GI as an IPR originates from the requirement to provide protection and economic benefits to the knowledge and community rights of the people of the protected product’s place of origin. This propagates fair competition and avoids misrepresentation. Further, it strengthens the commercial benefits from GI protection of a product in terms of its market recognition with respect to the place of its origin and helps superior payments for such products and leads to niche marketing and demand for such products such as for Darjeeling tea that supports rural community development as well as the economy of such place.

The statute that provides protection to GI in India is the Geographical Indications of Goods (Registration and Protection) Act, 1999 and requires registration for GI protection. The term for GI is 10 years, where it is again a perpetual IPR, provided it is renewed from time to time. There is a GI registry maintained, and in India, it is located in Chennai.

Plant variety protection, breeder’s and farmer’s rights

Plant variety protection or plant breeders’ rights and farmer’s rights provide commercial protection for the use of a new variety of a plant created by a breeder or a farmer. For a variety so created and claimed as new, it must fulfil the criteria set up under the Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) in India. This IPR was enacted to boost development and cultivation of new plant varieties. The PPVFR Act provides IPR for generation and development of new or extant or essentially derived varieties of plants to the breeders, farmers and researchers developing them. The IPR requires registration of the plant variety to award said right to the IPR-holder. Under this provision, farmers are granted special rights to sow, re-sow, save, use, exchange or sell their farm products such as seeds of a registered plant variety without any inhibitions. Accordingly, farmer’s varieties are also eligible to be registered where no fee needs to be paid by the farmer. This IPR provides an exclusive right to the IPR-holders including the rights to produce, distribute, market, sell, import as well as export the registered plant varieties. The duration of protection given varies based on the plants being protected from 15 years for field crops, as well as for extant notified varieties to 18 years for trees and vines.

IP protection of Biodiversity and Traditional Knowledge

With the sustainability of biodiversity as well as to protect the indigenous resources of the local people in terms of their traditional knowledge, IP protection and IPR have emerged from international agreements including Conservation of Biodiversity (CBD) and TRIPS. This IPR was established to curtail the erosion of biodiversity and bio-resources as well as the associated traditional knowledge of the indigenous, local people due to the increasing industrial exploitation which has become an imminent threat due to the lack of any consideration for sustainability, environment and livelihoods based on the biodiversity and traditional knowledge of such communities and societies.

The IPR related to the protection of Biodiversity and Traditional Knowledge has encompassed access and benefit-sharing for the exploitation of such resources as well as prior informed consent. CBD provides a global framework to protect biodiversity internationally with aims of promoting sustainable use of environmental and biological resources and sharing of benefits with the indigenous communities for economic exploitation of their community derived bioresources as well as traditional knowledge thereby promoting sustainable use of bioresources to exempt them against unnecessary depletion. This is evident especially under Article 16 of CBD that provides for adherence to IPR with the mandate requiring technology transfer and benefit-sharing restrictions on the economic exploitation of such resources and knowledge. Moreover, Article 8(j) of CBD stipulates protecting, respecting, rewarding the knowledge, innovation and practices of the indigenous and local communities as traditional knowledge. Under TRIPS, Article 27.3(b) considers exclusion of biological materials and processes to address environmental and ethical concerns and to restrain bio-piracy. Also, Article 71.1 of TRIPS imposes obligations on developed nations for technology transfer to developing nations.

India is a party to CBD and hosts biodiversity hotspots and has been identified as one of the top megadiversity countries in the world and hence, owes itself and the world responsibility of conservation of its Biodiversity and its associated Traditional Knowledge. Thus, India has enacted an act, the Biological Diversity Act of 2002 to provide for the conservation of biodiversity, its sustainable use, fair and equitable benefit sharing of the benefits from its use, and associated traditional knowledge.

Integrated circuit layout design protection

The IPR for Integrated circuit layout design (the three-dimensional characteristic of its elements and their interconnections) protection provides protection for layout designs of integrated circuits (IC) against their topography copying as well as against distribution of products that include such copied topographies. However, the IPR-holder cannot prevent the development of other original topographies for the same functions as the ones protected under the IPR. Thus, the IPR-holders rights are limited to the right of prevention from copying and commercial exploitation of the original design layout of an IC or semiconductor in India. These rights are protected in India under the Semiconductor Integrated Circuits Layout Design Act, 2000.

Trade Secrets

A trade secret is a form of IPR to protect any process, practice, formula, design, sales figures, consumer profiles, advertising tactics, or other compilations of information, etc., of a company which is ordinarily kept secret and confidential and prevented from being revealed outside the company. Such secrets are commercial or manufacturing secrets. Such protected information or processes are products of internal research and development and due to being kept out of reach of the public at large provide the company with an economic and industrial advantage over the competitors. Outside of the IPR-holder and his authorized users, if anyone makes unauthorized use of such protected information, they are said to employ unfair practices and are in violation of the trade secret.

This IPR is protected without registration and without any formal procedure and provides protection for an unlimited duration. General standards and practices with respect to recognition and protection of trade secrets are laid down under the TRIPS agreement in its Article 39, which provides that the information must be kept a secret, and due to its secrecy and inaccessibility it derives its commercial value, and there must exist reasonable steps of protection by the right holder of the information to be kept secret in the form of non-disclosure and confidentiality agreements.  

FREQUENTLY ASKED QUESTIONS AND ANSWERS:

Q1. Is there a global Patent? Does the Patent Cooperation Treaty (PCT) provide a world Patent?

A1. No, there is nothing that exists today that may be equated to a global Patent, not even under the PCT or World Intellectual Property Organization (WIPO) regime. At present, Patents are granted under national jurisdictions only for protection and enforcement in the territorial bounds of said jurisdiction. For example, an Indian Patent cannot be enforced in any other place other than in India, unless corresponding applications are filed in other jurisdictions also. PCT only provides a platform for submission of an international application for a Patent at the International Bureau (IB) in its international phase so as to reduce the costs of individual application filings in various jurisdictions. But, in its national phase, all applications need to be examined and evaluated so as to meet the national IPR regime’s requirements to proceed to a grant of a local Patent or not. Thus, there is no world Patent.

Q2. Are there provisions for Copyright protection that is viable globally?

A2. Yes, unlike with Patents, where international arrangements and facilitation only exists to enable multiple application filing in various countries, for Copyright, there exists an evolved and viable global recognition system under the global convention wherein the Copyright created in one country is protected globally.

Q3. What is a compulsory licence?

A3. If someone wishes to use a Patented invention or a Copyrighted work and asks the IPR-holder by legally stipulated means to get a licence to use the same and yet, the IPR-holder refuses to grant access, then the government may issue a compulsory licence to such an applicant upon prescribed application for the same.

Q4. What is limited life IPR and unlimited life IPR?

A4. The IPR that has a limited-term or duration for which it is protected and can be enforced by the IPR-holder are limited life IPR. For example, it is mandated under TRIPS for Patent term be limited and fixed to a term of 20 years. After the duration of the limited life IPR, the IP enters the public domain. In contrast, there are IPRs with virtually unlimited lifetimes provided they are renewed by paying the requisite fees to keep the IPR alive and enforceable. Examples of unlimited life IPR are Trademarks and Trade secrets. Thus, they can be forever kept from entering the public domain provided they are kept alive by renewal. For example, Coca Cola logo or trademark, as well as a secret recipe as a trade secret, have been kept alive for over a decade.