What are IPR ?
According to WTO, IPR’s are right given to persons over the creations of their minds.
They usually give the creator an exclusive right over the use of his or her creation for a certain period of time
Why is there a need for IPR ?
- According to John Locke, a person labor is his property. When a person mixes labor with something, he makes it his property
- Progress and Well Being of Humanity, depends upon the capacity to create and invent new works
Example: Wheel, Steam Engine, Aeroplanes, Assembly Lines, computers, internet, ChatGPT, Block Chain etc
- It spurs economic growth, generates jobs (high skilled jobs)
- Legal Protection encourages Innovation
Types of IPR’s
Copyright & Rights Related to Copyright
General Rights
It is for Literary & Artistic Work. These are rights of authors of Literary and Artistic Works.
Here no specific application is needed
- Books & Other Writings
- Musical Compositions
- Paintings
- Sculpture
- Computer Programs
- Films
These are protected by copyright for a minimum period of 50 Years after the death of author
Neighbouring Rights
They are also protected under copyrights
- Rights of Performers - Actors, & Singers etc
- Producer of Phonograms - These are small “Sound Recording”
- Broadcasting Organisations
Industrial Rights
These Rights are protected primarily to Stimulate, Innovation, Design and Creation of New Technologies.
- Innovation → Patent
To Get Patent we need to file or apply under a countries patent Law
Innovations are protected by Patents and the minimum time period of Protection is 20 Years.
- Trade Mark
Helps to Distinguish Goods & Services of one undertaking from another undertaking
- Trade Secrets
Some products and processes need to be protected for it to have a competitive advantage
Example : Chemical Formule of Pepsi & Coco Cola are one of the best kept trade Secret
- GI → Geographical Indication
Some goods(Natural or Man Made) have unique characteristics because of their geographical origin. These goods could be Natural, hand made or factory made
Example :
Natural: Kerala Beans, Saffron, Mithila Makhana
Handmade Goods: Banarasi Saree, Kanchipuram Silk
MSME Made Goods: Dindigul Locks, Khadi, Bangles of Firozabad, Bronze of Moradabad
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Agriculture
For Protection of Plant Variety
New Variety of Plants produced by Gene Editing or Otherwise can be protected under Plant Variety IPR.
IPR Regime of India
1957 - Copy Right Act (CRA)
- It was the first copyright law of independent india. It has been amended 6 times.
- Features of this Act
- Types of Works protected by CRA literary, dramatic, artistic and musical.
- Duration of Protection: Life Time of Author + 60 Yrs after death
- Feature of Exemption under Sec 52(1)(a) of the Act →
- Provides for Fair Use of Copyright Material
- Delhi Universities Photocopies Case which was filed by Oxford and Other Publishers were asking for compensation from Photocopiers. However the court said that these photocopies are being used for educational purposes so it is falling under fair use. So the Photocopier won the case
- “Certain Specific Activities listed in the Law” is also a ground for Exemption
1970 - Indian Patent Act (IPA)***
Old Act
- It is the principal law for patents in India
- It provides patents only to innovations and not to discovery
- for patentability, there are 3 specific criteria
- Novelty Standard → Something New
- Non Obviousness → Bit Unnatural
- Industrial Applicability → Should have some Economic Value
- The Original Act provided for only Process patent and the protection period was only for 5 to 7 Years.
Here, the US & Foreign Medicine Manufactured Medicines were Reverse Engineered by Indian Generic Medicine Industry for almost 35 Years until amendment in 2005. Hence India emerged as the Pharmacy of the World with cheap generic medicines
Understanding Needed to Understand this Law
Process Patent | Product Patent |
Here only the process of manufacturing is protected | The product cannot be made by any other process |
Product could be made by a different process | More Comprehensive Protection |
Reverse Engineering can be done here | Here Reverse Engineering cannot be done |
2005 - Amendment of Indian Patent Act***
- It introduced product patent
- increased the protection period from 5 years to 20 Years
- It set up special courts to resolve IPR related cases → called “Intellectual Property Rights Appellate Board”
Advantage: Encourages Foreign Companies to Invest and Innovate in India
Licensing
- Voluntary Licensing
When a Patent Owner, Voluntarily gives his permission to manufacture its products to a non patent owner
The Non Patent Owner has to pay some fee to the patent owner and that is known as Royalty
- Compulsory Licensing
When a Govt Authorises a party other than the patented owner to produce the patented product w/o the patented owners consent
Example: The Bayer’s Case (German Pharmaceutical Company). They made an Anti Cancer Drug, which was very costly for Indian Patients. It costed around 12 Lacs for a Year. Indian Govt gave compulsory licensing to NATCO, an Indian Generic Drug Manufacturer and the cost reduced to fractions i.e Rs 25,000
Govt provided info to NATCO
What are NOT patented under IP Act, 1970
Section 3D →
- Discoveries cannot be patented.
- New forms of a Known Substance
Example: The Novartis Case. Novartis is a Swiss Pharma Company which had got a ptent for anti cancer drug i.e Imatinib. Its patent was about to expire. It tweaked the design of the previous drug and claimed that it has developed a new anti cancer drug and branded it as Glivec. However the Indian Patent office, denied patent to Novartis as it said that it violated the Section 3D of IPA, 1970
- New use of Known Substances
Example: Aspirin which is an Analgesic is now being used as Blood Thinner. so it cannot get a patent for new use.
- Checks Evergreening of Patents → i.e it cannot be Renewed
1999 - Geographical Indicators Act (GIA)
- GI Act is Geographical Indication of Goods (Registration & Protection Act). It is primarily provided to Agricultural, Natural or Manufactured Product (Handicraft & Industrial).
- It is for 10 Years and it can be Renewed
- The Stakeholder here is a Group of People or Associations
- Example: Find Latest Examples from CA
2001 - Protection of Plant Variety & Farmers Rights Act (PPVFRA)
- This is IPR in Agriculture. It is according to TRIPS compliances (TRIPS stands for Trade-Related Aspects of Intellectual Property Rights)
- This Right is available to Farmers and Breeders to Encourage New Variety of Plants
- Protection Period is 15 Yrs for Field Crops and 18 Years for Trees and Vines
- It has very strong provisions for protection of farmers rights. That allows the farmers to plant, grow, exchange and sell protected crops including seeds
- It barres only from selling it as “Branded Seeds”
- Example: Pepsico Case
Pepsi has protection for 2 variety of potato .Pepsico sued Gujarat farmers for selling the seeds in the marker, sharing the seeds with non contractual farmers and producing the seeds themselves i.e farmers were using their protected potato.
However, Court gave the Verdict in favour of Farmers citing specific provision of PPVFRA Law
2005 - Amendment of Indian Patent Act***
Covered under 1970 Indian Patent Act
2016 - National IPR Policy (NIP)
- It lays down the future road map for intellectual property in India. It aims to incorporate and adapt global best practises
- It has 7 objectives
- IPR Awareness
- Stimulate Generation of IPR
- Commercialisation of IPR
- Setting up of Legal Framework
- Setting up of Admin & Mgmt Framework
- Enforcement & Adjudication
- Human Capital Development
PYQP Mains
How is Govt of India protecting traditional knowledge of medicine from Pharma Companies ? (10 M)
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