Types of IPRs Flashcards
What is an IPR
tradable legal rights resulting from intellectual property in industrial, scientific, literary and artistic fields that safeguard its creators by granting them time-limited rights to control their invention’s use
trade of IPRs is intangible and non-exhausted consumption
types of IPR
- patents
- trademarks
- copyrights
- geo. indications
- industrial designs
- layout designs for integrated circuits
what is a patent
exclusive right, lasting 20 years, granted for the invention of a product or process that provides a new way of doing something or technically solving a problem
patented inventions cannot be commercially produced, used, distributed or sold without owner’s consent
how can a patent be exploited by those other than its owner?
- owner may license other parties to use the invention on mutually agreed terms
- owner may sell the patent
- owner may be subjected to compulsory licensing
what happens once a patent expires?
the invention enters the public domain and the owner no longer has exclusive rights to it, so others can commercially exploit it
what is a trademark
distinctive sign that identifies certain goods or services produced by a specific person or enterprise, which may be one or a combo of words, letters and numerals as well as drawings, symbols, 3D symbols, audible signs, fragrances or colours
it ensures the owner the exclusive right to use it to identify goods and services or authorise another to use the good in return for payment
benefit of a trademark to consumers
helps them to identify and purchase products that meet their needs, based on nature and quality, as indicated by the trademark
how long to trademark rights last
10 years after initial registration, then it must be renewed periodically
what is a copyright
rights given to creators for literary and artistic work like novels, plays, reference works, films, music and paintings, which last for the life of the creator plus sixty years after their death (except photographs)
60 years from the beginning of the calendar year following the year in which the photograph was published
issues of registration for copyrights
not mandatory to register since it subsists in a work by virtue of creation, but registering a copyright provides legal evidence that the copyright subsists and its creator owns the work
how are copyrights exploited
creators sell the right to the work to individuals and companies best able to market the work in return for payments, known as royalties, which are dependent on the use of the work
what are GIs
an exclusive right given to particular community for goods that have a specific geographical origin and possess qualities that are due to that place of origin, and the benefits of this right are shared by all members of that community
applied example of GI
agricultural products tend to have qualities that derive frorm their place of production such as climate and soil, as well as human factors like specific manufacturing skills and traditions
e.g. darjeeling tea in West Bengal
lonavala chikki
fenny - goa
mysore sandalwood soap
what is an indsutrial design
creative activity resulting in the ornamental appearance of a product
what is an industrial design right
the exclusice right to a novel industrial design (define ID here) that is accorded to its creator to promote and protect the design element of industrial production
which act covers existing legislation on IDs in India
New Designs Act 2000
what are trade secrets
confidential business info providing an enterprise with a competitive edge, usually manufacturing, industrial or commercial secrets such as sales methods, manufacturing processes or lists of suppliers/clients
how have ID rights been adapted in India in line with globalisation
legislation is aligned with the changing technical and commercial scenario to comform to international trends in design admin
also enacts a more detailed classification of design to conform to intl. system and regulate the proliferation of design related activities in various fields
how are trade secrets unique?
they do not need registration to be protected unlike patents
duration of protection of trade secrets
unlimited period PROVIDED a substantial element of secrecy exists such that it would be hard to obtain the info unless improper means are used
how can india benefit from Trade Secret protection
because of the vast availability of traditional knowledge in the country. TSs and trad knowledge are interlinked with GIs
define a semiconductor integrated circuit
a product comprising transistors and other circuitory elements
which are inseparably formed on a semiconductor material or insulating material or inside the SC material
that is designed to perform an electronic function
what Act protects IP related to SCICL designs?
Semiconductor Integrated Circuits Layout Design Act (SICLD) 2000
explain how the SICLD Act works
gives the registered proprietor of the layout design the inherent right to use, commercially exploit and be protected against infringement of the design
how long does the SICLD Act provide protection
10 year period post registration, then must be renewed periodically at the Department of Information Technology Ministry of Communications and Information Technology
What is the importance of registering IP?
Developing a new product involves a lot of time, money and effort to be invested
The inventor will naturally expect to be able to own exclusive rights over the invention and exclude others from benefitting from it
IP systems and laws provide this exclusivity and give the inventor advantages including prima facie ownership proof that allows them to enforce IPR in court if needed
Thus, IPR protection is CRUCIAL to provide inventors with the incentive to keep innovating and benefitting from their i ventions, which will also benefit the wider society
Comment on the general process of registering IP
involved IP registration followed by process of verifying authenticity of creation
entity granting the IP must carry out extensive research to verify that the creation is original, authentic and not lifted from another
done by publishing new creations in IP journals to fact check other individuals/entities claiming IP rights against the same/similar creations
process of registering and acquiring IPR can take between a few months and many years and includes various rounds of correction by the inventor
what are the benefits of IPR
exclusive control to owner over financial and usage benefits
inventor can exercise the right to file a court case against competitors violating IP laws to benefit from the invention (will receive financial compensation)
- increase market share and profits by exclusive commercial exploitation
- may increase business value - M/A/Sale
- income from royalties
- marketing angle - improves business image by differentiating products
- sale, licensing or using IPR as collateral for easier finance access
- registered and protected brands and designs can help enter export and franchising markets
international conventions
The TRIPS Agreement contains references to the provisions of certain pre-existing intellectual property conventions:
- Paris Convention - Industrial Property like industrial design, patents and utility models
- Berne Convention - Literary and Artistic Works (1971)
TRIPS
Trade-Related Aspects of Intellectual Property Rights
minimum standards agreement to protect various forms of intellectual property, provision for which India has already made through changes to national law
national and intl treatment
principle of giving (or not giving) others the same treatment as one’s own nationals.
national treatment (with regards to IPR protection) is a feature of many international IPR conventions including the Paris Convention
where do you file for a patent?
mumbai, delhi, chennai, kolkata
first to file vs first to invent USA INDIA
USA - First to Invent
India - First to File
FTF - first person to file a patent application for an invention is granted the right to the patent, regardless of when the invention was actually created
FTI - person who first conceives, thinks of, or invents something is awarded the patent
in what currency is the fee for extending patent to a new country charged
Swiss franks
how many attempts in total do you get to answer to an FER
3
what are the 2 main ways in which a patent can be exploited
- licensing - royalties paid post one-time payment
- assignment - part or all of the ownership of the patent transferred to another entity
licensing may be more ideal since you can claim royalities and is also not a permanent agreement
what do the main clauses of licensing agreement concern
- payment
- termination
- the fact that no addition or deletion can be made regarding patent
how many dependent claims can you have
minimum of 1 but unlimited after that
payment system for claims in patent documents in india
10 claims free, 80K INR per additional claim
in which regions are priority dates mainly used
India and Europe
what is WIPO and where is it headquartered
World Intellectual Property Organisation
Geneva, Switzerland
what does a provisional patent entail
10 lines about
- invention abstract - 100 words, must be attached last
- summary
- background - prior art search
- drawings/illustrations (NO photos)
- patent claim - AKA body of patent; most crucial and is the only part actually examined. Must be as broad as possible to ensure maximum protection
poor man’s copyright
practice of mailing a copy of your work to yourself.
Under the copyright law, a work of original authorship is protected by copyright from the moment it is fixed in a tangible medium of expression.
In USA - not a substitute for registering your copyright; however, the postmark could be used as evidence in infringement cases that the work was in existence on a certain date,
how long do patents last
20 years, renew each year, non-extendable
how long do trademarks last
10 years, extendable
how long do copyrights last
60 years after demise of author in India, 70 in the US
Berne convention - lifetime+50 years but can be longer in individual countries
what does copyright not protect
ideas, facts, single words; titles, 2 or 3 sentences, slogans, recipes, math formulae, certificates
what are common rights under copyright
- economic
- reproduction
- distribution
- communication of work to public
- make adaptation
- performance
- broadcast
- moral rights
- remedies to copyright infringement - civil (section 55), criminal and penal (preventive and compensatory)
exceptions to copyright infringement
- fair use doctrine
- personal use
- educational use
- libraries and archives
- satire and parody
- government works
defences against copyright infringement suit
- invalidity of copyright
- defendent proves they have valid license
- work is in public domain
- infringement case filed after limitation period expired
why should GI be protected
- TAKES ON VALUE JUST LIKE ANY FAMILIAR BRAND. FOR PRODUCERS, A GI HELPS TO CONFER UNIQUENESS OR DIFFERENTIATION,
- BLOCK ATTEMPTS TO FREE-RIDE ON THEIR REPUTATION
difference between GI and TM
GI IDENTFY A GOODS AS ORIGINATING FROM A PARTICULAR PLACE AND CANNOT BE ASSIGNED OR LICENSED BECAUSE OF ITS LINK TO PLACE OF ORIGIN
TM IDENTIFY GOODS/SERVICES OF PERSON OR COMPANY AND CAN BE ASSIGNED/LICENSED BECAUSE OF ITS LINK TO PLACE OF ORIGIN
what would classify as infringement of GI?
USE OF ANY MEANS IN THE PRESENTATION OF A GOOD THAT SUGGESTS THAT THE GOOD ORIGINATES IN A GEOGRAPHICAL AREA OTHER THAN THE TRUE PLACE OF ORIGIN WHICH CONFUSES THE PUBLIC
two ways to indicate trademark
- TM (FOR TRADEMARKS PENDING APPLICATION).
*® (FOR TRADEMARKS REGISTERED).
explain word, device and composite marks and the protection given to each
word - name; protects name and not font/style
device - mark comprising an image/graphic; protects overall impression of image e.g. shape/style orientation
composite mark - comprises graphics and words; protects both elements including words on the graphics –> E.G. AMAZON
explain service marks
Protects brand names, logos, or symbols associated with services (e.g., legal services, delivery services) rather than a product or product manufacturer
e.g. FedEx, Netflix, Linkedin
define a logo/symbol
A PRINTED/PAINTED FIGURE/DESIGN/CHARACTER
NOT CONSISTING OF ANY LETTERS/WORDS/NUMERALS
FOR WORD MARKS THAT ARE ALSO USED AS A LOGO, THE TRADEMARK NEEDS TO BE REGISTERED BOTH AS A WORD MARK
AND A DEVICE MARKS (IN INDIA – BOTH CAN BE FILED IN SINGLE APPLICATION)
explain ‘shape of goods’
, OTHER THAN A
LOGO OR LABEL A PRODUCT CAN ALSO BE DISTINGUISHED
BASED ON ITS PACKAGING
e.g. coca cola bottle design and colour scheme; hershey’s kisses
explain series marks
TRADEMARKS WHICH HAVE A COMMON
SYLLABLE, PREFIX OR SUFFIX but differ in some respect, such as color, design, wording, or product type, used to indicate a family of related products or services that vary in specific features like quality, colour
e.g. McVeggie, Nuggets, Flurry, Cafe
explain collective trademarks
MARKS LINKED WITH A GROUP OF PEOPLE AND NOT ONE SINGLE PRODUCT OR SERVICE.
PRIMARILY OWNED BY AN ORGANIZATION, INSTITUTES OR ANY ASSOCIATION.
CAN BE USED BY MEMBERS OF THE
ORGANIZATION TO REPRESENT THEMSELVES e.g. CA
explain certification marks
USED TO DEFINE “QUALITY STANDARDS” OF GOODS AND SERVICES AND ASSURE THE PUBLIC THAT THE CERTIFIED GOOD HAS MET THESE ESTABLISHED STANDARDS
e.g. FDA, CDC, FSAAI, ISO
explain fluid marks
MARKS THAT CHANGE OVER TIME, ORNAMENTING A STATIC UNDERLYING MARK. NEW APPROACH TO BRANDING
E.G. GOOGLE DOODLE (TEMPORARY ALTERATION OF GOOGLE LOGO TO
COMMEMORATE HOLIDAYS, ACHIEVEMENTS ETC)
ITRETAINSTHEBASICELEMENTSOFTHEORIGINALMARKWHICHCANBEIDENTIFIEDBYCONSUMERS.
*
RISK:ITISADEVIATIONFROMTHEORIGINALTM,NOTGOODFORBRANDSTHATARENOTWELLKNOWN
how can trademarks be exploited by someone other than owner
licensing and assignment
define a dependent patent
patent which cannot be worked without falling within the scope of protection of another patent.
e.g. new type of engine that improves fuel efficiency.
Dependent Patent: unique combustion chamber design that is majorly responsible for efficiency of engine
difference between patent of addition and dependent patent
patents of addition are to do with modifications or improvements to the SAME patented product, and are not for new products that supplement the primary patented product
e.g. extra features added to the same product
define independent and dependent claims
independent - standalone claim that contains all the limitations necessary to define an invention
dependent - refers to a claim previously made and must further limit that claim.
traditional knowledge
available to indigeneous communities through experience and adaptation and has been developed over generations
examples of TK in India
- Ayurveda - turmeric milk
- pest control - neem
- agriculture - selection, ploughing cross polination e.g. sunrise papaya, golden rice
- yoga - healthcare
- expressions of folklore - Warli Art
threats to TK
- bioprospecting - exploration of useful organic compounds with commercial viability
- biopiracy - obtaining IPR to gain monopoly over bio. resources without consent of the community to which resource is indigeneous
explain the 3 cases of foreign appropriation of TK (turmeric, neem, basmati rice)
turmeric - USA patented use of turmeric to treat wounds
neem - USA patented use of neem oil to control plant fungus
rice - USA patented several hybrid strains of rice including TEXMATI
patents were challenged by India and later revoked on the bases of lack of novelty, misappropriation and threat to economic welfare respectively
positive tactics to protect TK
ACTIVELY safeguarding TK instead of waiting to defend against misappropriation
- prior informed consent before commercial exploitation BUT in reality doesn’t happen as holder tends to lack financial resources to legally defend against large MNCs
- benefit/profit sharing
- databases to prevent patenting by others- TKDL
- using existing IPR systems - copyright, patents, GI
defensive (legal) tactics to protect TK
prevent others from registering IPR over traditional knowledge
include legislation and govt/national campaigns
- e.g. Beej Bachao Andolan - works to restore traditional farming knowledge and protecting traditional seed varieties from extinction in Uttarakhand
- TK Databases like TKDL - evidence of prior art
- oppose patent attempts
- international agreements: e.g. WIPO’s Intergovernmental Committee works on international solutions to prevent TK misappropriation
what is TKDL
traditional knowledge digital library - prior-art database of traditional knowledge globally to protect against biopiracy
how much did LeePharma propose in royalties to Astrazeneca
28k INR over 2 years
how much did Natco pay Bayer in royalties
208k INR monthly
