Basic Concepts of Intellectual Property Rights and Patent Laws in India

INTRODUCTION

Intellectual Property Rights is not a modern concept; its roots can be traced to the 15th Century when invention of the printing press enabled copying of literary works. Thus illegitimate copying led to the emergence of certain status to protect the individual creation and invention. That was the beginning of intellectual property rights which has now taken a global shape. Several measures have been adopted at global level to protect intangible properties, against the back drop of economic developments and increasing trade negotiations. The protection of Intellectual Property Rights has become so significantly vital that the companies who have protected their intellectual property today ruled world commerce Microsoft for example, is built entirely on the strength of its software programs that are protected through copyright. Similarly, the products e.g. (DVDs) are protected by patents, software (e.g. windows) by copyrights goodwill (e.g. the logo of Mercedes Benz) by trademarks, appearance design of a Rolex watch) by designs and special arrangement of components on a microchip (Pentium IV) by semiconductor layout designs. It is a complex issue as to which Intellectual Property Right applies to which form of intangible asset, with whom the rights vests or arise and how and where to apply for the protection of the rights as these rights and laws differ from country to country as well. According to Article 2 (vii) of the Convention Establishing the World Intellectual Property organization (WIPO) Intellectual Property shall include the rights relating to: I. Literary, artistic and scientific works; II. Performances of performing artists, phonograms and broadcasts;

V. Industrial designs; VI. Trademarks, service marks and commercial names and designations; VII. Protection against unfair competition; VIII. And all other rights resulting from intellectual activity in the industrial scientific literary or artistic fields. Trademark – A trade mark can be a logo, symbol, word, phrase, jingle, picture, sound or even signal or a combination of all these which is used to distinguish one work/service from another.[1] It provides a distinct identity t a good/service, and protects it from being copied First of all we are required to understand what are Intellectual property rights intellectual property like any other form of conventional forms of property is an asset. Just like real and personal property the intellectual property can also be bought, sold, licensed, exchanged or gratuitously given away. Intellectual Property owner has also the right to prevent the unauthorized use or sale the property. The most striking difference between intellectual property and other forms of property is that it is intangible. That is cannot be defined or identified by its physical parameters. So Intellectual Property must be expressed in some discernible way for enabling it to be protected. Unlike a physical object an intellectual property like an idea for invention, a piece of music or a trademark cannot be protected against other person‘s use of them by simply passing the object. Industrial property includes inventions (Process, Products apparatus) : industrial designs (shapes and ornamentation) and marks and trade names to distinguish goods, In recent years the scope of industrial property is depended to include among others, the protection of distinctive geographical indications (in particular appellations of origin), plant Varieties and the layout design (topographies) of integrated circuits as well as the repression of unfair competition, including the protection of the trade secrets. The practice of defining intellectual property started in the Italian city states. It is reported that the first Patent was granted to Filippo Brunelleschi in the Republic of Florence in 1421 Brunelleschi was given a three year monopoly far his invention concerning special hoisting gear used on barges. An ordinance relating to patents was first enacted in Venetia law of 1474.[2] From the Italian city states the practice spread to other western European countries. In England, during the reign of Elizabeth I (1533-1603), here minister lord Burghley (1520-98) granted a series of patens with a view to encourage foreign inventors to import their inventions and work on them in England. It was also intended to stimulate inventions by domestic producers. is an Intellectual Property relating to scientific and technological inventions granted by the government of the State/country to the applicant inventor giving him the right for a limited period to prevent others from using those inventions in any form without permission like any other property.[4] We have also incorporated amendment in 1999 in India Patent Act 1970 in line with the TRIPS proposal, which means rise in drug prices at the cost of poor patents. WTO was designed to protect the developed countries economic interests in general and multinational corporations interest in particular. WTO is an instrument of globalization for individual benefit, but the need of the hour is that it should be individual effort for global village. WTO is emerging more powerful than I.M.F. and World Bank; hence a strong need is felt to make it more democratic. Basic principle of this organization is that of positive discrimination or affirmation action in favor of developed countries. The increasing global disparity between the rich and development is an issue. We have now accepted the rights and obligations of internationally accepted patent protection regime and respect of intellectual property rights as part of our commitment to WTO and the economy is now increasingly focusing itself on productivity and competitiveness. But how can we withstand and give competition in world market with poverty. Intellectual property retards innovation and exploits third world peoples. Prof. Ravinder Kumar cautioned that this democracy has to be made functioning from the grassroots to the top echelons of society. While India and other developing countries have been made to price open their economies under a new ‗globalised‘ world order, it would shock many to know that protectionism is being practiced by none other than the industrialized nations of the first world. This has led the restrictions in trade of goods from the developing world to the developed resulting in losses worth billions of dollars annually. This form of protectionism by the developed west costs the developing world dearly even a conservative estimate of costs to the latter on their exports alone stands at $100 billion per year. The young generation running blindly towards western countries has failed to consider that not only Swami Vivekanand in 1893 but even in past few decades India‘s saints like Mahesh Yogi and Acharya Rajneesh have virtually transformed the Western thinking about materialistic life. The present day Scenario is that west is looking towards spiritual east guidance in their ultimate pursuits of getting place of mind but our people forgetting this treasure not utilizing it even 1% are busy in their maddening rush towards western countries to get glittering dollars in returns for their too take in their lives. Intellectual Property Right is acronym that hardly needs to be expounded nowadays everyone who matters in scientific circles is talking about intellectual property rights and the importance of protecting scientific discoveries, with commercial potential in a tight more of patents in any discussion on collaborative agreements between different institution, public and private, the first question asked is : ―Has our Intellectual Property Right been protected‘ in seminars and meetings on Intellectual Property Rights speakers expound on the technicalities of patent protection, the importance of valuation of intellectual property and the need to ensure that (investors) (and their institutions) get a substantial piece of the cake of commercial success. In the first blush when one taken simplistic approach, this topic may appear to be meaningless.[5] After all whether it is Intellectual Property Rights or any other rights of persons under any law, the role of the judiciary is to protect those rights or to enforce those rights when a cause is bought to the courts the plaintiff would disclose his legal right which is infringed or threatened to be violated by the defendant. Primary source of these legal rights is some statute.[6] Once the court finds the this assertion of the plaintiff is true the court shall pass the judgment in favor of the plaintiff By giving appropriate relief whether in the form of injunction or damages or both or any other kind of relief to which the plaintiff is entitled to. Therefore even when it is a right in intellectual property legal position has to be the same. Indian laws on intellectual property like such laws in any other matured legal system provide adequate provisions by means of various statutes and enactments in the form of the Patent Act, the Copyrights Act, the Design Act the Trade mark Act etc. All these enactment recognize the rights of the holder of such intellectual property and there are provisions for enforcement of these rights. Violations of these rights generally give to both types of actions civil as well as criminal. Therefore, a person whose right is infringed in relation o intellectual property can either bring action before the civil court and or he can initiate criminal proceeding against those accused of Intellectual Property Right. Violations when such causes come before the courts the role of the court is to adjudicate these causes and provide for necessary relief as provided in law once the cause is established if that is the position in law what else is to be discussed insofar as the role of judiciary is concerned. Copyright law, it is frequently stated, does not protect ideas but the form in which they are expressed. Such distinction is easy to state, but difficult to apply, and copyright cases abound with, on the one hand, examples where the courts appear to have come close to protecting mere ideas and, equally, where they appear to have failed to protect the creator‘s expression. the Judge declares by his legal reasoning in a judgment it is a matter of common knowledge that law of torts was developed, over a period of time, by judges and therefore, most of this law is judge made law, although over a period of time certain principles evolved by the judges got recognition from the parliament in the form of statutory provisions by evolving the law of torts courts protected fundamental human interests by recognizing these fundamental interests and laying down the principles that whosever causes or threatens to cause harm to these human interests would be liable for such damage caused. Even when there were no written constitutions (and there is none in U.K. even today) the courts have recognized certain human rights and protected those rights even when a particular field is covered by a statute. Mahendra and Mahendra Paper Mills Ltd. v/s Mahindra and Mahendra Ltd. [8] This case is also reaffirmation of this principle that ward Mahindra and Mahindra though generic had acquired distinctive and a secondary meaning in the business or trade circles. Likewise in case of Laxmikant Patel v/s Chetanbhai Shah and another. Reported the Supreme Court held that principles applicable for passing of action in case of trade mark apply to trade or business name. Cadila Health Care Ltd. v/s Cadila Pharmaceutical Ltd.[9] In this case it has been observed which can termed as treatise on this branch of law, the Apex court took into consideration the ground realities prevailing in this country in the sale and manufacturing of medicinal products one can deduce the following principles laid down by the court in dealing with such cases. Pfizer Products Inc. v/s B.L. Company‘s Ors.[10] There can be innumerable examples and it is not necessary to enlist those citations here. I may only say that it is these bordge lines/hard cases where such choices are to be made, the judge is to determine the path or direction along with which the existing principles is to move and develop. I conclude by taking the support of cordoio‘s analysis in the following wards. ―My analysis of the judicial process comes then to this, and little more logic, and history, and custom, and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance

The term ‗Patent‘ has its origin in the term ―Letter Patent‖. The expression ―Letter Patent‖ meant open letters as distinguished from closed letters. These were instruments under the Great Seal of the King of England addressed by the Crown to all the subjects at large, in which the Crown conferred certain rights and privileges on one or more individuals in the kingdom. A patent is a negative right which grants exclusive rights to a patentee to prevent or exclude others from making, using, selling, offering to sell or importing the invention. The patent law recognizes the exclusive right of a patentee to gain commercial advantage out of his invention. Any other manufacturer cannot produce a product by the patented process, although the manufacturer can produce it by another process. ... However, since 1970, India has granted "process patents," which allow another inventor to patent the same product as long as it was created by a "novel process". In the later part of the nineteenth century new inventions in the field of art, process, method or manner of manufacture, machinery, apparatus and other substances, produced by manufacturers, machinery, apparatus were on the increase. The inventors became very much interested in the fact that the inventions done by them should not be infringed by anyone else by copying them or by adopting the methods used by them. To save the interest of the inventors, the British rule enacted the Indian Patents and Designs Act, 1911 (2 of 1911).[12] OECD Glossary of Statistical terms (2005) defines Intellectual Property Rights (IPRs) as the general term for the assignment of property rights through patents, copyright and trademarks. These property rights allow the holder to exercise a monopoly on the use of the item for a specific period. The reasoning for the intellectual property is to encourage innovation without the fear that a competitor will steal the idea and/or take the credit for it. IPRs are divided into two categories. First category is the Industrial Property that includes patents for inventions, trademarks, industrial designs and geographical indications, and the second category is the Copyright that covers literary work (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs. These rights are outlines in the Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests Patent is defined as a statuary privilege granted by the Government to inventors, and to other persons deriving their rights from the inventor, for a fixed period of years, to exclude other persons from manufacturing, using or selling a patented product, or from utilizing a patented method or process. At the expiration of the time for which the privilege is granted, the patented invention is available to the general public or, as it is sometimes put, falls into the public domain. A patent is a legal monopoly granted to the owner of a new invention which is capable of industrial use, for a limited period of time (Wadahra, 2012)[13].Any invention which places major emphasis upon the theories, understanding and principles of a wide body of the subject matter is not patentable. Since they add to the understanding of the subject matter, they lack utility.A patent is situate in the country where it is registered (IRC, 1932).[14] Patent Law has two aspects – first it provides a statutory right to the owner of the patent for a certain length of time; second, this right is conditional. The patentee has to disclose his invention in sufficient detail so as to enable a person, who is conversant with the field of technology, to practice that invention and make to work. The Indian Patent Act, 1970 as amended by the 1999 Act, deals with the first facet. The second aspect is the object of the patent system.[15] Despite of the various arguments for and against the patent, Patent Law has been established on a worldwide basis with almost all the countries. Some industries, such as pharmaceuticals and electronics would become stagnant without patent protection through a lack of investment.[16] Justification of patent can be found in its social aim which the patent institution had, and their obligation to carry forward the invention. The desire of an inventive individual is always to challenge them to solve a particular problem and to benefit the mankind rather than the aim of taking out patents. Technology can be cited as an example for this.[17] For centuries university research has yielded major results without the incentive of patents and it continues to do so.[18] There have been improvements in the patent regime in India which have resulted in a significant enforcement of patents in India. In 2017, India's patent office granted 12,387 Patents—up substantially from 8,248 in 2016 and 6,022 in 2015. Worldwide, the WIPO estimates, there were 1.4 million patents granted in 2017However, a lot remains to be still done. The patent regime is plagued with certain impediments, which continue to hinder the effective enforcement of patents in the country. Most significant case to argue can be found in the fact that although, India has a long history in Vedic herbs and medicines but, it still has lost the patent rights on many of its natural

The subject of Patent Law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for limited period, stimulates new inventions of commercial utility. The price of the grant of monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the fixed period of the monopoly passes into the public domain. Initially, the Act provided for a shorter term pf protection for medicine or drug substances. However, vide the Amendment Act of 2005 uniform period of 20 years was provided for all the Patents. Thus, once the prescribed period of 20 years is over, then any person can exploit the patented invention. Here it would be relevant to mention that similar to a trademark even the term of a patent begins from the date of application of patent. The requirements for Granting Patent are as follows: 1. The application for Patent shall be made at the Indian Patent Office. 2. Any person i.e. Indian or a Foreigner, individual, company or the Government can file a Patent Application. 3. The person applying for Patent shall be the true and first inventor of the invention proposed to be patented. 4. The patent application can also be made jointly. 5. The patent application shall primarily disclose the best method of performing the invention known to the applicant for which he is entitled to claim protection. 6. The applicant shall also define the scope of invention. 7. The invention desired to be patented shall be- new, should involve an inventive step and must be capable of industrial application. 9. An international application made under the PCT (Patent Co-operation Treaty) designating India shall be deemed as an application made under the Patents Act with the priority date accruing from the date of the international filing date accorded under the PCT. The Act under Section 2(1)(j) defines ―invention‖ as a new product or process involving an inventive step capable of industrial application. The term ―industrial application‖ refers to capable of industrial application in relation to an invention means that the invention is capable of being made or used in an industry. One of the pre-requisite of invention is that it should be new i.e. the invention proposed to be patented has not been in the public domain or that it does not form part of the state of the art. Under the Patent Act, both processes and products are entitled to qualify as inventions if they are new, involve an inventive step and are capable of industrial application. The main elements for invention as per law are as follows: 1. The Invention must be new; 2. Invention must involve an inventive step; 3. The invention must be capable of industrial application or utility; 4. The invention shouldn‘t come under the inventions which are not patentable under Section 3 and 4 of the Patent Act, 1970; Non-patentable inventions are enumerated under Section 3 and 4 of the Patent Act. Such inventions are delineated below: 1. Any Invention which is frivolous or which claims anything obviously contrary to well established natural laws is not patentable. 2. Inventions which are contrary to public order or morality is not patentable. 3. An idea or discovery cannot be a subject matter of a patent application. 4. Inventions pertaining to known substances and known processes are not patentable i.e. mere discovery of a new form of a known substance which does not enhance the known efficacy of that substance is not patentable.

6. A method of agriculture or horticulture cannot be subject matter of patent. 7. A process involving medical treatment of human and animals or to increase their economic value cannot be subject matter of a patent. 8. Plants and animals in whole or in part are not patentable. 9. A mathematical or business method or a computer program per se or algorithms is excluded from patent protection. 10. Matters that are subject matter of copyright protection like literary, dramatic, musical or artistic work is not patentable. 11. Any scheme or rule. 12. Presentation of information 13. Topography of integrated circuits. 14. Traditional knowledge. 15. Inventions relating to atomic energy.

Infringement of Patent primarily refers to intrusion or violation of the rights of a Patentee against which the Patentee has statutory rights under the Act. The factors that are essential in determining infringement of a Patent are as under: 1. While determining infringement it has to be assessed whether the infringing activity fell within the scope of the invention. Thus, the infringement has to be determined with regard to what has been claimed as invention under the Patent Act by applying the principles or standards of construction. 2. To determine whether the infringing activity violated any statutory rights conferred to the Patentee under the Act. In this respect reference can be made to Section 48 of the Act which enumerates the rights of the Patentee with respect to a product patent and process patent. 3. To determine the infringer i.e. the person liable for the infringement. 4. To determine whether the infringing act fell within the acts which do not amount to or research, import of medicine or drug by Government and patents in foreign vessels and aircrafts.

Neem tree (scientific name, Azadirachta Indica) originates from India and has been extensively mentioned in Indian texts over 2000 years ago. It has been used for centuries by local communities in agriculture as an insecticide and pest repellent, in human and veterinary medicines, toiletries and cosmetics. Despite such extensive use of neem and its product in India, its first patent was obtained by Terumo Corporation of US in 1983 for its therapeutic preparation from neem bark. In 1985, Robert Larson (USDA) obtained a patent for his preparation of neem seed extract and the Environmental Protection Agency approved these produces to be used in U.S. markets. From there still present time largest number of patents for neem is in USA (51) followed by Japan (35), Australia (23) and then India (14) (Neem Foundation). In India additionally more than 53 patent applications are pending since 1995,[19] thus emphasizinng the great demand of investigating critically the IPRs and Patent Laws in the country. Sandalwood refers to fragrant oil derived from the heartwood of sandal trees. India is a major producer of sandalwood with estimated production of 15,000 tons of true sandalwood annually. The essential oil obtained from it is used primarily in the fragrance industry, medicines and aromatherapy. The wood is used for craving, especially religious objects and sawdust is used in incense. The documented uses date back from millennia. The patents of skin treatment method by sandalwood is given to Dow Corning Corporation of US, in 1990 (US4908355), for antiviral compositions to Lezdey, John in 1996 and many other to US, China, Denmark and Japan. India lags behind in patenting the products from its own produce. Same stands true for products like rose oil for pigment reduction products patented to China (2014), cultivated agar wood is patented to Regents of the University of Mimmesota (2001), turmeric for wound healing is granted to US (1993).[20] These data clearly indicates the need for a research to understand the Intellectual Property Rights and critically analyze the Patent Law both nationally and internationally to identify the areas that can be improved and also Patent laws are extremely important for the economic and scientific development. Other than giving exclusive rights they also help in revenue generation and increase the negotiating power of the patentee (WIPO). Strong Indian patent legislations contribute to the growth of a country‘s knowledge book by answering the progress in supported by an equally strong enforcement mechanism as well. Fair, strong and non-discriminatory patent enforcement create economic incentives. A strong patent require helps, attract new investment and allow innovators to develop new technologies. A weak Patent Law enforcement is a major barrier to increase trade. This is unfortunately the case with the Patent enforcement in most of the developing countries, including India. In India the patent legislation is governed by the Patent Act, 1970. The 1970 Patent Act was an outcome of various previously existing patent legislations including the Patents and Design Protection Act, 1872, the Protection of Inventions Act, 1883. The Patent Act, 1970 provides for the enforcement of patents by ways of suits for infringement. In dealing with these suits the Indian courts follow the traditional principles and procedures of civil litigation. However, after enforcement of the TRIPs Agreement from 1995 various methods have been adopted by the legislators to improve the enforcement measures with regard to patents. To implement the Patent Regime, India has effected amendments in 1999, 2002 and 2005 to the Indian Patent Act, 1970 in response to TRIPS Agreement. The implementation was really a challenging task. The crucial question before India was how to balance its national interests with its obligations under TRIPS. Whether after all the three amendments India will be able to maintain the identity of its Patent Act, 1970 which was treated as the Keble on Patents and Patenting practices by Indian scientists, technologists, industrials and also by all other developing countries. This study justifies its objectives in the trends towards patenting in past few decades. Analysis of the patents filled suggest that majority of them are for crop protection applications (63%), followed by health care (13%), industrial (5%), veterinary care (5%), cosmetics (6%) and others (8%) (Neem Organization Report, 2014). The same stands true for the in country wise granted patents. For example in U.S. in year 2013 out of 54 patents 31 were for crop protection, and the rest are for health care, cosmetics, industrial and veterinary applications. Organization wise patents ownership of neem products indicates largest number owned by Cetris-W.R Grace (49), Rohm and Hass (36), CSIP-India (14), Trifolio (9), Bayer (8) and EID Parry (6).Many other small countries like Korea has successfully globalised its natural treasure GINSENG-with an integrated approach, active research and development and positive promotion. India must draw lessons from this example of hallmarking success of Korean Farmers and Government efforts. The objective of this work is to analyze some of the salient features of the Indian Patent Law i.e., the Patents Act, 1970. The existence of Indian Patent regime is very old. The basic aim of conferring an Indian Patent regime upon the person owning the same is to give a social recognition to its holder. The social recognition can further bring economic benefits to its holders. It is just and reasonable to award a person an Indian Patent regime in the form of ―Limited monopolistic rights‖ for his/her labour and efforts. At the same time, exceptions in the form of various licences are also made so that public interest cannot be compromised. The public interest and personal abuses can be reconciled in the form of limited period duration of their rights and their abuses can be tackled stringently, especially when public interest demand so. With the advent of the technology and ―conflicts of law‖ in various countries the problem of Indian Patent Regime‘s violation has been increasing. This adds to the significance of this study that aims to objectively study and analyze the salient feature of the Indian Patent Law in 21st century. Another objective of this work is to examine the impact of new patent regime on the nascent Indian Industries like computer software, pharmaceuticals and bio-technology, agriculture etc. The Patent Act, 1970 fully amended by 2005 and some of the released legislations such as Geographical Indications Act, 1999, Plant variety Protection and Farmer‘s right Act, 2001 as well as provisions under new Biological Diversity Act, 2002 has profound impact upon pharmaceuticals and biotechnology industry of India. The latest Patent amendments and other relevant legislation has endeavored to address India‘s core interest despite the problem encountered on the road to develop efficient patent protection regime by the time pressure and also forced upon by TRIPs implementation deadlines. This absence of the product patenting impacts adversely the forging investment, research and development and India‘s emergence as knowledge superpower. We can make people more aware of their rights through educating them the power of new ideas and its recognition for their esteem for growing in the sector or field they are putting their best to gain something fruitful and productive socially as well as economically.

1. T.T.I. Edu. Plus August 28, 2006, p.2 2. Dr. S.R. Mynenie : law of Intellectual Property ALH 4th Edu. 2007, p. 2-3

4. See Intellectual Property Rights jurisprudence. Vol. xiv P. 448-452 5. See The Times of India October, 1008, Pg. 9 6. See current science Vol. 78, November 10 June 2000, Pg. 1277 7. See Nyaya Deep, Vol. V, October 2004, pg. 57 8. See Nyaya Deep, Vol. V. October 2004, pg. 58 9. See Nyaya Deep, Vol. V, October 2004, (2002) 2 sec 147 10. See Nyaya Deep, Vol. V, October 2004, (2002) 3 sec 65 11. See Nyaya Deep, Vol. V, October 2004, (2002) 5 sec 73 12. R.L. Wadahra, op.cit., p. 3. 13. B. L. Wadahra (2012), Law Relating to Intellectual Property, Universal Law Publishing Co. Fifth Edition. 14. English, Scoffish & Australian Bank Ltd., v. IRC(1932) AC 238. 15. D.P. Mittal, Taxmann's Indian Patents Law, Para 1.5, (1999). 16. Maniofa I.E., The Profit of new soperct Law" 12 European intellectual Property Review 21, (1990). 17. Abrol Dinesh and Menon Usha, The New Intellectual Property Regime and Scientific and Technology Development in third world Patent Convention (National Working Group on Patent Laws), New Delhi, 1990 18. Goldman Alan H., "Ethical issues is Propretency restrictions research Result, "12, Science Technology, Human Values, 28 (1987). 19. http://www.neemfoundation.org/about-neem/patent-on-neem/ 20. http://www.synbiowatch.org/wp-content/uploads/2016/04/Sandalwood_CS_ETC.pdf

Research Scholar, Maharishi Arvind University, Jaipur