THE PATENTS ACT, 1970 is an Act to amend and consolidate the law relating to patents.
INVENTIONS NOT PATENTABLE
What are not inventions.
The following are not inventions within the meaning of this
(a) an invention which is frivolous or which claims anything obviously contrary to well established natural laws;
(b) an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or
plant life or health or to the environment;
(c) the mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substance occurring in nature;
(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs,metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy;
(e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance;
(f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way;
(g) Omitted by the Patents (Amendment) Act, 2002
(h) a method of agriculture or horticulture;
(i) any process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
(j) plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals;
(k) a mathematical or business method or a computer programme per se or algorithms;
(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;
(m) a mere scheme or rule or method of performing mental act or method of playing game;
(n) a presentation of information;
(o) topography of integrated circuits;
(p) an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components.
4. Inventions relating to atomic energy not patentable.—No patent shall be granted in respect of an invention relating to atomic energy falling within sub section (1) of section 20 of the
Atomic Energy Act, 1962 (33 of 1962).
5. Inventions where only methods or processes of manufacture patentable: [Omitted by the Patents (Amendment) Act, 2005]
What is meant by geographical indication? Why is geographical indications and appellations of origin important? What is a protected geographical indication? What is GI registration?
A geographical indication is basically a notice stating that a given product originates in a given geographical area. An appellation of origin is a more precise form of geographical indicator, which specifies that the product has qualities that are derived specifically from the fact that it is made in a particular region. As stated above a geographical indication is a broad term, which includes appellation of origin, indication of source, and geographical indication in strict sense. In the literature, the term geographical indication is generally used in its broader sense to embody all these terms (appellation of origin, indication of source, and geographical indication in strict sense. Geographical indications can be protected nationally either by decree or by a register. Internationally they can be protected by reciprocal arrangements between countries or in the case of appellations of origin by the Lisbon Agreement. Furthermore the TRIPS Agreement requires all members of the World Trade Organization to protect geographical indications.
The use of geographical indications is an important method of indicating the origin of goods and services. One of the aims of their use is to promote commerce by informing the customer of the origin of the products. Often this may imply a certain quality, which the customer may be looking for. They can be used for industrial and agricultural products. Protection of such indications is on a national basis but there are various international treaties that assist the protection in a range of countries.
Geographical indications in a broad sense include indications of source, appellation of origin, and geographical indication (in the strict sense). It should be pointed out that the Paris Convention does not use in its terminology the term geographical indication; it rather utilizes the terms,indications of source and appellations of origin. An indication of source means any expression or sign used to indicate that a product or service originates in a country, a region, and a specific place where the product originated. Example: Made in Japan.
An appellation of origin means the geographical name of a country, region, specific place which serves to designate a product originating therein, the characteristic qualities of which are due exclusively or essentially to the geographical environment, including natural or human factors or both. Example: Champagne.
What is meant by geographical indication? Why is geographical indications and appellations of origin important? What is a protected geographical indication? What is GI registration?
“A trademark is a sign that individualizes the goods or services of a given enterprise and distinguishes them from its competitors.”
This section has covered the basics of trademarks. You have learned that a trademark is a word, a logo, a number, a letter, a slogan, a sound, a color, or sometimes even a smell which identifies the source of goods and/or services with which the trademark is used. Trademarks are one area of intellectual property and their purpose is to protect the name of the product rather than the invention or idea behind the product.
Trademarks can be owned by individuals or companies and should be registered at a governmental agency, which is usually referred to as the Trademarks Office. When a trademark is used in connection with services, it is sometimes referred to as a “service mark”.
Generally speaking, trademarks should be distinctive and should neither be generic nor merely descriptive of the goods or services they represent. For example, the word “vegetable” cannot be registered as a trademark of a supermarket, since it is certainly descriptive of items which a supermarket sells. In addition, it cannot be registered as a trademark for carrots, since it is a generic term for carrots. On the other hand, the word “vegetable” might well serve as a trademark for bicycles since it has little or nothing to do with bicycles. Trademarks should preferably not be geographical or primarily a surname. Thus, “Paris” cannot serve as a trademark for perfume. In many countries, trademarks which comprise mere letters and/or numbers (i.e. the proposed trademark cannot be pronounced as a word or words or just has too few letters) or are surnames are considered to be indistinct.
Trademarks existed in the ancient world. As long as 3000 years ago, Indian craftsmen used to engrave their signatures on their artistic creations before sending them to Iran. Later on, over 100 different Roman pottery marks were in use, including the FORTIS brand that became so famous that it was copied and counterfeited. With the flourishing trade in the Middle Ages the use of trademarks increased. Today trademarks (often abbreviated as TM in English) are in common usage and most people on the planet could distinguish between the trademarks for the two soft drinks Pepsi-Cola and Coca-Cola. The growing importance of trademarks in commercial activities is due to the increased competition among companies undertaking trade in more than one country. Trademarks have been used to simplify the identification by consumers of goods or services, as well as their quality and value. Thus, a trademark may be considered as a tool of communication used by producers to attract consumers. In this module you will learn what sort of signs can be used for trademarks and what characteristics they must have. You will be able to distinguish between a collective mark and a certification mark. This module will also explain how well known or famous marks are given special protection under the Paris Convention and the TRIPS Agreement.
A trademark may consist of words, designs, letters, numerals or packaging, slogans, devices, symbols, etc. The Coca-Cola Company ® PepsiCo, Inc. ®
It is necessary to say that a service mark is similar to a trademark, differing only in that the latter protects goods, while the former protects services. Generally speaking the term trademarks includes both trademark and service marks
The purpose of a patent is to provide a form of protection for technological advances. The theory is that patent protection will provide a reward not only for the creation of an invention, but also for the development of an invention to the point at which it is technologically feasible and marketable, and that this type of an incentive would promote additional creativity and encourage companies to continue their development of new technology to the point at which it is marketable, useful to the public and desirable for the public good.
The Patent system in India is governed by the Patents Act, 1970 (No 39 of 1970) & The Patents Rules 1972, effective from April 20,1972. Subsequently The Patents Act, 1970 is amended effective from January 1, 1995 & The Patents Rules, 1972 is amended effective from June 2, 1999.
DOCUMENTS REQUIRED FOR FILING AN PATENT APPLICATION
Application form in triplicate.
Provisional or complete specification in triplicate. If the provisional specification is filed it must be followed by complete specification within 12 months (15 months with extension).
Drawing in triplicate (if necessary).
Abstract of the invention (in triplicate).
Information and undertaking listing the number, filing date and current status of each foreign patent application in duplicate.
Priority document (if priority date is claimed).
Declaration of inventorship where provisional specification is followed by complete specification or in case of convention application.
Power of attorney (if filed through Patent Agent).
Fee in cash/by local cheque/by demand draft.
Where to apply? OFFICE FOR FILING AN APPLICATION
Application is required to be filed according to the territorial limits where the applicant or the first mentioned applicant in case of joint applicants for a patent normally resides or has domicile or has a place of business or the place from where the invention actually originated .If the applicant for the patent or party in a proceeding having no business, place or domicile in India., the appropriate office will be according to the address of service in India given by the applicant or party in a proceeding.
EXAMINATION & PUBLICATION
All the applications for patent accompanied by complete specification are examined substantively. A first examination report stating the objection(s) is communicated to the applicant or his agents. Application or complete specification may be amended in order to meet the objection(s). Normally all the objections must be met within 15 months from the date of first examination report. Extension of time for three months is available, but application for extension therefore must be made before the expiry of normal period of 15 months. If all the objections are not complied with within the normal period or within the extended period the application will be deemed to have been abandoned. When the application is found to be suitable for acceptance it is published in the gazette of India (Part III, Section2). It is deemed laid open to the public on the date of publication in the gazette of India.
Notice of opposition must be filed within four months of notification in the Gazette. Extension of one month is available, but must be applied for before expiry of initial four month period.
Process of Grant or Sealing of PATENT
If the application is not opposed or the opposition is decided in favour of the applicant or is not refused the patent is granted or sealed on payment of sealing fee within 6 months from the date of advertisement. However, it is extendable by three months.
REGISTER OF PATENTS
The Register of Patents will be kept in the Patent Office and its branch offices. Register of Patents can be inspected or extract from it can be obtained on payment of prescribed fee. Register of Patents contains full details of the Patent which include Patent number, the names and addresses of the patentee; notification of assignment etc.; renewals, particulars in respect of proprietorship of patent etc.
RIGHTS OF PATENTEE
A patent grant gives the patentee the exclusive right to make or use the patented article or use the patented process. He can prevent all others from making or using the patented process. A patentee has also the right to assign the patent, grant licenses under, or otherwise deal with it for any consideration. These rights created by statute are circumscribed by various conditions and limitations.
Renewal fees are payable every year. The first renewal fee is payable for third year of the patent’s life, and must be paid before the patent’s second anniversary. If the patent has not been issued within that period, renewal fees may be accumulated and paid immediately after the patent is sealed, or within three months of its recordal in the Register of the Patents.
Date of payment of Renewal fees is measured from the date of the patent. Six months’ grace is available with Extension fee. No renewal fees are payable on patents of addition, unless the original patent is revoked and the patent of addition is converted into an independent patent; renewal fees then become payable for the remainder of the term of the main patent.
No renewal fees are payable during the pendency of the application for a patent; renewal fees that become overdue during pendency are payable upon sealing within three months of recordal in the Patent Register.
Annual reports as to the extent of working, by every patentee and licensee, are a statutory requirement and must be submitted by March, 31 each year for the previous year ending December, 31.
COMPULSORY LICENSE AND LICENSE OF RIGHT
On failure to work a patent within three years from the date of its sealing, an interested party may file petition for grant of a compulsory license.
Every patent for an invention relating to a method or process for manufacture of substances intended for use, or capable of being used, as food, medicines, or drugs, or relating to substances prepared or produced by chemical process (including alloys, optical glass, semi-conductors and inter-metallic compounds) shall be deemed to be endorsed “Licenses of Right” from the date of expiry of three years from the date of sealing the patent.
Applications must be filed on the prescribed form with the Controller for the registration of assignments and any other documents creating an interest in a patent in order for them to be valid. In order to be valid, an assignment must be recorded within six months from the date of the document. A six-months extension may be obtained.
Applications must be filed on the prescribed form with the Controller for the registration of licenses and any other documents creating an interest in a patent in order for them to be valid. A license must be recorded within six months from the date of the document.
A patent lasts for 14 years from the date of filing the complete specification (if an application is filed with provisional specification on January 1, 1989, and a complete specification is filed on January 1, 1990, the duration is counted from January 1, 1990). However, for food, drug and insecticide patents, the life is seven years from the date of complete specification, or five years from date of sealing, whichever is shorter.
Application for restoration of a patent that lapses due to nonpayment of renewal fees must be made within one year of lapse. If an overdue annuity is not paid within the extension period, the one-year period for seeking restoration commences from the date of recordal.
Infringement can consist of taking away essential features of the patented invention; utilizing claimed features; copying patented substances; mechanical equivalence; taking part of the invention. while the patent is in force. Use by the government or for government purposes is not infringement. Such use must be paid for on terms to be agreed upon before or after use. Accidental or temporary use, use for research, use on foreign vessels, do not constitute infringement.
Appeal lies in the High Court. Appeal must be lodged within three months from the decision of the Controller.
Explain how the protection of geographical indications takes place at the national and international level
A geographical indication (GI) is a name or sign used on certain products which corresponds to a specific geographical location or origin (e.g. a town, region, or country). The use of a GI may act as a certification that the product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation, due to its geographical origin. Examples include Darjeeling tea, Basmati Rice, Bikaneri Bhujia Feni (liquor) from Goa, Paithani and Banaras saree, Kanchipuram silk saree, Nagpur oranges, Alphonso Mangoes (many other varieties), Kolhapuri chappals, Lonavala Chikki, Tirunelveli Halwa,foodstuffs like Mysore rasam and many others At international level Champagne’, ‘Havana’, ‘Tequila’, ‘Scotch Whisky’, ‘Bordeaux’, ‘Burgogne’, ‘Irish Whisky’, ‘Porto’, ‘Cognac’, ‘Sherry’, ‘Camembert’, ‘Gouda’ and many others are some of the popular examples Protection of GI in India In India the Geographical Indications of Goods (Registration and Protection) Act, 1999 came in force with effect from September 2003. The salient features of the Act are defines Geographical Indication, provides a mechanism for registration of GIs, establishes a GI Registry, elaborates the concept of authorised user and registered proprietor, higher level of protection for notified goods and remedies for infringements. • Section 2(e) of the Act defines a GI as : “geographical indication”, in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. • Explanation: – For the purposes of this clause, any name which is not the name of a country, region or locality of that country shall also be considered as the geographical indication if it relates to a specific geographical area and is used upon or in relation to particular goods originating from that country, region or locality, as the case may be;”
• GI Registry at Chennai is having all India jurisdiction. • Registry maintains a Register of GI which is divided in to two parts, Part A and Part B. Part A contains details of distinguishing characteristics of the goods and of the registered proprietor which would be an association of persons or producers or a body representing interest of such producers like for instance the Tea Board, Coffee Board, Spices Board etc. To include all producers a collective reference may be made in the application. • Part B contains particulars of ‘authorised users’ of GI such as those producers (traders and dealers) who have not been included in the original application for registration. (this provision included due to socio economic factors) Prohibitions S. 9 lays down the following prohibitions to registration of certain GI:- a. the use of which would be likely to deceive or cause confusion; or b. the use of which would be contrary to any law for the time being in force;or c. which comprises or contains scandalous or obscene matter; or d. which comprises or contains any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India; or e. which would otherwise be disentitled to protection in a court; or f. which are determined to generic names or indications of goods and are, therefore, not or ceases to be protected in their country of origin, or which have fallen in to disuse in that country; or g. which, although literally true as to the territory, region or locality in which the goods originate, but falsely represent to the persons that the goods originate in another territory, region or locality, as the case may be.
Application • Section 11 of the Act deals with application for registration, its contents, making and filing, acceptance or refusal. • Once filed the Registrar will have the Application examined and may consult a expert group to verify the technical details. Thereafter the Examination report is issued to which the Applicant files a reply and on satisfaction the Registrar accepts the Application which will then be published in the GI journal. Any person then can file a Notice of Opposition within a maximum period of four months of publication in the Journal. Thereafter the matter will for reply, evidence and then hearing. If the Registrar accepts the Application then a certificate of registration issued. • Registration is valid for ten years but can be renewed from time to time on payment of renewal fee. • Similar procedure followed for registration as an ‘authorised user’. Effect The Act provides that once the GI is registered, an infringement action can be initiated both by the registered proprietor and by authorised users whose names have been entered on the Register. A registered GI is infringed by a person who not being an authorised user, uses such GI by any means in the designation or presentation that indicates or suggests that such goods originates in a geographical area other than the true place of origin of such goods in a misleading manner or uses a GI which constitutes an act of Unfair competition (Act explains it as dishonest practices). • The Act provides for both civil and criminal remedies for infringement. • The civil includes imposition of fines, forfeiture to government of all goods and things means of which the offence had been committed, damages, account of profit, together with or without any order for delivery of the infringing label and indications for destruction or erasure. • The criminal remedies includes imposition of fine or imprisonment or both. • In addition the statute vide section 25 prohibits registration of GI as a trade mark. The Registrar of Trade Marks shall suo motu or at the request of interested party refuse or invalidate the registration of a trade mark which consists of a GI with respect to goods not originating in the territory which such GI indicates, if use of such a GI as a trade mark would confuse or mislead the public as to the true origin of the goods. However, the Act protects use of trademarks that consists of a GI where it is registered in good faith under the Trade Marks Act or where the right to such trade mark was acquired prior to coming in to force of the Act. • Higher level of protection for notified goods (TRIPS ). This will enable such higher level of protection not only in respect of wines and spirits but for other goods as may be decided by the Govt. • The Act says that in respect of the such notified goods, infringement shall include, interalia, using of such expression as ‘Kind”, “style”, “imitation”, or like expressions by unauthorised users. Such additional protection requires no proof of likelihood of deception. Such prohibition also applies to translations and the use of such GI for notified goods would be forbidden whenever the goods do not come from the area in question. • Also a trade mark shall not be granted, if it contains a GI for Notified goods and the products do not originate from the region in question. • The Act makes no difference between an Indian GI or a foreign GI. • The Act apart form according statutory protection to this form of Intellectual Property would ensure and orderly marketing of premium products. The civil and criminal legal remedies available under the statute would facilitate business confidence among the producers and manufacturers. Agreement on Trade-Related Aspects of Intellectual Property Rights The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) defines “geographical indications” as indications that identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographic origin. Examples of geographical indications from the United States include: “FLORIDA” for oranges; “IDAHO” for potatoes; “VIDALIA” for onions; and “WASHINGTON STATE” for apples. Geographical indications are valuable to producers for the same reason that trademarks are valuable. Geographical indications serve the same functions as trademarks, because like trademarks they are: source-identifiers; guarantees of quality; and valuable business interests. Although, as mentioned above “geographical indications” are often associated with Europe, the U.S. system for protection of geographical indications can be dated to at least the Trademark Act of 1946. In 1994, when negotiations on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) were concluded, governments of all WTO member countries (151 countries As of August 2007) had agreed to set certain basic standards for the protection of GIs in all member countries. There are, in effect, two basic obligations on WTO member governments relating to GIs in the TRIPS agreement: 1. Article 22 of the TRIPS Agreement says that all governments must provide legal opportunities in their own laws for the owner of a GI registered in that country to prevent the use of marks that mislead the public as to the geographical origin of the good. This includes prevention of use of a geographical name which although literally true “falsely represents” that the product comes from somewhere else. 2. Article 23 of the TRIPS Agreement says that all governments must provide the owners of GI the right, under their laws, to prevent the use of a geographical indication identifying wines not originating in the place indicated by the geographical indication. This applies even where the public is not being misled, where there is no unfair competition and where the true origin of the good is indicated or the geographical indication is accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like. Similar protection must be given to geographical indications identifying spirits. Article 22 of TRIPS also says that governments may refuse to register a trademark or may invalidate an existing trademark (if their legislation permits or at the request of another government) if it misleads the public as to the true origin of a good. Article 23 says governments may refuse to register or may invalidate a trademark that conflicts with a wine or spirits GI whether the trademark misleads or not. Article 24 of TRIPS provides a number of exceptions to the protection of geographical indications that are particularly relevant for geographical indications for wines and spirits (Article 23). For example, Members are not obliged to bring a geographical indication under protection where it has become a generic term for describing the product in question. Measures to implement these provisions should not prejudice prior trademark rights that have been acquired in good faith; and, under certain circumstances — including long-established use — continued use of a geographical indication for wines or spirits may be allowed on a scale and nature as before.
Discuss copyright protection. Explain the ownership and limitations on copyright protection. How do you take care of piracy and infringement?
Copyright protection is a tangible material that is protected by a copyright. Anything can be copyrighted that you can view, hear, if it can be saved on your computer, or anything else that is a way of saving. Copyright Protection begins when something is created in tangible form. Once you have your material written down or saved somewhere, it is copyrighted, but you can’t sue them unless you register your copyright with the U.S. Copyright Office. Even if your copyright isn’t registered, you can still assert a copyright claim as the author.
Taking anyone’s work from the internet is illegal! If you see a background that you like, or part of someone’s source that you’d like to use, that’s illegal! That material is copyrighted. There are three things that aren’t illegal when taking things: if it has been created by the federal government, if the copyright has been abondoned by the holder, and if the copyright has expired.
If you have downloaded a free item from a website, you still have to comply with the owner’s terms and or conditions. If it says that you must give them credit, you must give them credit, or else you’re commiting copyright infringment. If the owner says you cannot edit it, you can’t edit it legally.
You cannot take someone’s work and translate it into a different language and then call it your own either.The Bern Convention says:
Quote Authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorizing the translation of their works throughout the term of protection of their rights in the original works. You have to have the author’s permission to translate it into a different language.
Define trademarks. How are trademarks protected? Discuss trademark licensing.
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities. A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound. Protection of trademarks The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the trademarks office (or “trademarks registry”) of a particular jurisdiction. In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising through use. If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited. In cases of dispute, this disparity of rights is often referred to as “first to file” as opposed to “first to use.” Other countries such as Germany offer a limited amount of common law rights for unregistered marks where to gain protection, the goods or services must occupy a highly significant position in the marketplace — where this could be 40% or more market share for sales in the particular class of goods or services.
Most jurisdictions provide for the use of trademarks to be licensed to third parties. The licensor (usually the trademark owner) must monitor the quality of the goods being produced by the licensee to avoid the risk of trademark being deemed abandoned by the courts. A trademark license should therefore include appropriate provisions dealing with quality control, whereby the licensee provides warranties as to quality and the licensor has rights to inspection and monitoring
5. Layout designs of integrated circuits is another field in the protection of intellectual property . Discuss ‘Integrated circuit’ means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the inter-connections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function, ‘Layout-design (topography)’ means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture … Integrated Circuit layout designs are creations of the human mind Like most of the other forms of intellectual propertiy,. They are usually the result of an enormous investment, both in terms of the time of highly qualified experts, and financially. There is a continuing need for the creation of new layout-designs which reduce the dimensions of existing integrated circuits and simultaneously increase their functions. The smaller an integrated circuit, the less the material needed for its manufacture, and the smaller the space needed to accommodate it. Integrated circuits are utilized in a large range of products, including articles of everyday use, such as watches, television sets, washing machines, automobiles, etc., as well as sophisticated data processing equipment. The possibility of copying by photographing each layer of an integrated circuit and preparing masks for its production on the basis of the photographs obtained is the main reason for the introduction of legislation for the protection of layout-designs. In United States intellectual property law, a mask work is a two or three-dimensional layout or topography of an integrated circuit (IC or “chip”), i.e. the arrangement on a chip of semiconductor devices such as transistors and passive electronic components such as resistors and interconnections. By extension, it also refers to the copyright-like intellectual property right conferring time-limited exclusivity to reproduction of a particular layout. The layout is called a mask work because, in photolithographic processes, the multiple etched layers within actual ICs are each created using a mask, called the photomask, to permit or block the light at specific locations, sometimes for hundreds of chips on a wafer simultaneously. Because of the functional nature of the mask geometry, the designs cannot be effectively protected under copyright law (except perhaps as decorative art). Similarly, because individual lithographic mask works are not clearly protectable subject matter, they also cannot be effectively protected under patent law, although their combined functions and structure certainly may be protected
Explain the need and the legal basis for protection .
Highlight some examples of unfair competition.
You will get these three answers from this article.
Unfair competition in a sense means that the competitors compete on unequal terms, because favourable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively harm the position of others with respect to their ability to compete on equal and fair terms. It contrasts with fair competition, in which the same rules and conditions are applied to all participants, and the competitive action of some does not harm the ability of others to compete. Often, unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust.
What is unfair competition? Explain the Need & Legal basis for Protection Examples
To an important extent, the principles of fair competition in the business world are defined by law, and therefore unfair competition may well be unlawful or criminal. But because the forms of competition can change continually and new forms of competition may arise, competition may be unfair, but not illegal, at least not until a legal rule is explicitly made to prohibit it. The exact meaning of unfair advantage or harm caused in business competition may be vague or in dispute, in particular if different competitors promote different interpretations which suit their own interests. It may be difficult to define what it would mean to compete on equal terms, and the operative terms of competition that exist in reality may be challenged only when a participant is seriously disadvantaged by them. Often “equal terms” is defined as an “equal opportunity” or “equal chance” to compete. Sometimes unfair competition is also interpreted to mean that the existence of competition as such is unfair or unjust. The argument is then that there should not be any competition. In this case, the alternative to unfair competition is not fair competition, but no competition or cooperation.
Need for protection
Unfair competition in commercial law refers to a number of areas of law involving acts by one competitor or group of competitors which harm another in the field, and which may give rise to criminal offenses and civil causes of action. The most common actions falling under the banner of unfair competition include: • Matters pertaining to antitrust law, known in the European Union as competition law. Antitrust violations constituting unfair competition occur when one competitor attempts to force others out of the market (or prevent others from entering the market) through tactics such as predatory pricing or obtaining exclusive purchase rights to raw materials needed to make a competing product. • Trademark infringement and passing off, which occur when the maker of a product uses a name, logo, or other identifying characteristics to deceive consumers into thinking that they are buying the product of a competitor. In the United States, this form of unfair competition is prohibited under the common law and by state statutes, and governed at the federal level by the Lanham Act. • Misappropriation of trade secrets, which occurs when one competitor uses espionage, bribery, or outright theft to obtain economically advantageous information in the possession of another. In the United States, this type of activity is forbidden by the Uniform Trade Secrets Act and the Economic Espionage Act of 1996. • Trade libel, the spreading of false information about the quality or characteristics of a competitor’s products, is prohibited at common law. • Tortious interference, which occurs when one competitor convinces a party having a relationship with another competitor to breach a contract with, or duty to, the other competitor is also prohibited at common law. Various unfair business practices such as fraud, misrepresentation, and unconscionable contracts may be considered unfair competition, if they give one competitor an advantage over others. In the European Union, each member state must regulate unfair business practices in accordance with the principles laid down in the Unfair Commercial Practices Directive, subject to transitional periods
• Trademark infringement – such as using the Coca-Cola® trademark on a soda container manufactured by a competing beverage maker. • False advertising – such as making false claims about a drug’s abilities to promote weight loss. • Unauthorized substitution of one brand of goods for another – such as substituting a low-cost handbag for a designer handbag. • Misappropriation of trade secrets – such as stealing a competitor’s soft drink formula. • False representation of products or services – such as exaggerating a software program’s spellcheck capabilities.
In this article we are going to discuss World Intellectual Property Organisation (WIPO) What is WIPO?, Functions of WIPO, History of WIPO, How WIPO functions, Simple explanation with PDF of WIPO and its functions, World Intellectual Property Organization, Indian and WIPO relations, WIPO treaties objectives and functions of WIPO,importance of WIPO, salient features of WIPO, powers and functions of WIPO, organs of WIPO, objectives of WIPO and mainly role of WIPO in protection of ipr.
The World Intellectual Property Organization (WIPO) is one of the 16 specialized agencies of the United Nations. WIPO was created in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world.”
History of WIPO
WIPO currently has 184 member states, administers 24 international treaties, and is headquartered in Geneva, Switzerland. The current Director-General of WIPO is Francis Gurry, who took office on October 1, 2008.
183 of the UN Members as well as the Holy See are Members of WIPO. Non-members are the states of Cook Islands, Kiribati, Marshall Islands, Federated States of Micronesia, Nauru, Niue, Palau, Solomon Islands, Timor-Leste, Tuvalu, Vanuatu and the states with limited recognition. Palestine has observer status.
Amongst the many roles that WIPO carries out to support the worldwide promotion of intellectual property rights, is its role in the administration of specific treaties and conventions. The international protection for trademarks,industrial designs and appellations of origin is carried out through three registration systems: The Madrid System for trademarks, the Hague System for industrial designs, and the Lisbon Agreement for the protection of appellations of origin
a) The Hague System covers the deposit of industrial designs, the Madrid System the registration of trademarks and the Lisbon Agreement concerns the registration of appellations of origin.
b) The two treaties in the Madrid System are the Madrid Agreement concerning the International Registration of Marks (1891) and the Madrid Protocol relating to the Madrid Agreement (1989).
Role of World Intellectual Property Organisation (WIPO)
Strategic partnership through carefully formulated national IP strategy commensurate with the country’s existing development policies and objectives Providing technical expertise and advice Support and assistance in the implementation of national IP strategy.
Functions of WIPO -World Intellectual Property Organisation (WIPO)
Enable a country to use its IP system in an effective and optimal manner while ensuring that it contributes to overall national development policies and goals Provides a clear picture of where a country wants to go and how it will get there by using the IP system Helps ensure the development of a balanced national IP system that fits with the specific needs and expectations of a country Provides an effective framework of cooperation between the country concerned and WIPO (and other agencies providing technical assistance in the areas related IP) Other advantages
More tangible/concrete results Better coordination and cohesion among all parties concerned (increasing synergies) Optimal use of available resources
What does WIPO do?
The activities of WIPO are basically of three kinds:
assistance to developing countries,
setting international norms and standards for the protection of intellectual property
All these activities serve the overall aim of WIPO, namely, to maintain and increase respect for intellectual property throughout the world, in order to promote industrial and cultural development by stimulating creative activities and facilitating the transfer of technology as well as the dissemination of literary and artistic works.
1. Assistance to developing countries constitutes the first pillar of WIPO’s activities, and takes the form of training (groups and individuals, in general or specialized courses, seminars to provide for an exchange of information and experience), promotion of creative activities and of technology transfer, the provision of technological information contained in patent documents, the provision of advice on laws and regulations as well as the management of industrial property offices and copyright collective administration societies, as well as the provision of equipment.
2, The second pillar relates to activities in the setting of international standards and norms for the protection and administration of intellectual property. They are concerned with revision of existing treaties or creation of new ones, simplifying procedures at the national, regional or international levels for the granting of intellectual property rights, the effective enforcement and protection of such rights, the efficient management of collections of industrial property documents used for search and reference, and devising means for making access to the information they contain easier; the maintenance and updating of international classification systems, the compilation of statistics; collection of laws on industrial property and copyright law administration.
Under this heading could be included the work of the WIPO Arbitration and Mediation Center. Promotion of the acceptance–or wider acceptance–of treaties, by countries is also an important activity of WIPO.
3.The registration activities are the third pillar of WIPO and involve direct services to applicants for, or owners of, industrial property rights. These activities concern the receiving and processing of international applications for the protection of inventions, or for the international registration of marks or deposit of industrial designs.
Such activities are financed normally from the fees paid by the applicants, which account for about 85% of the annual total income of WIPO for the 1996/97 budget. The rest of the budget is covered mainly by contributions from member States under various treaties administered by the Organization, as well as by the sale of publications and miscellaneous income.
WIPO’s revised and expanded strategic goals are part of a comprehensive process of strategic realignment taking place within the Organization. These new goals will enable WIPO to fulfill its mandate more effectively in response to a rapidly evolving external environment, and to the urgent challenges for intellectual property in the 21st Century.
The nine strategic goals were adopted by Member States in the Revised Program and Budget for the 2008/09 Biennium [PDF]. They are:
Balanced Evolution of the International Normative Framework for IP
Provision of Premier Global IP Services
Facilitating the Use of IP for Development
Coordination and Development of Global IP Infrastructure
World Reference Source for IP Information and Analysis
International Cooperation on Building Respect for IP
Addressing IP in Relation to Global Policy Issues
A Responsive Communications Interface between WIPO, its Member States and All Stakeholders
An Efficient Administrative and Financial Support Structure to Enable WIPO to Deliver its Programs
Objectives of WIPO World Intellectual Property Organization (WIPO)
The objectives of WIPO are, firstly, to promote the protection of and the respect for intellectual property throughout the world through cooperation among States; and, where appropriate, in collaboration with other international organizations; secondly, to ensure administrative cooperation among the intellectual property Unions established by the treaties that are administered by WIPO
To make IP speaks the language of the economic circumstances and social context that it serves.
To create better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned.
Treaties and Unions of World Intellectual Property Organization (WIPO)
The constitution, the “basic instrument,” of WIPO is the Convention, mentioned above, signed at Stockholm in 1967.
The treaties administered by WIPO fall into three groups.
The first group consists of treaties which establish international protection, that is to say, they are treaties which are the source of legal protection agreed between countries at the international level. Four treaties on industrial property fall into this group.
They are the Paris Convention for the Protection of Industrial Property, the Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, and the Nairobi Treaty on the Protection of the Olympic Symbol.
Two treaties in the field of copyright and neighboring rights fall into this group, namely the Berne Convention for the Protection of Literary and Artistic Works and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.
The second group consists of treaties which facilitate international protection. Seven treaties on industrial property fall into this group. They are the Patent Cooperation Treaty which provides for the filing of international applications for patents, the Madrid Agreement Concerning the International Registration of Marks, the Protocol Relating to the Madrid Agreement just mentioned (both of them provide for the filing of international applications for marks), the Lisbon Agreement which has already been mentioned because it belongs to both the first and the second groups, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, the Hague Agreement Concerning the International Deposit of Industrial Designs and the Trademark Law Treaty which entered into force on August 1, 1996.
Two treaties in the field of neighboring rights may also be considered as falling into this group, namely the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms and the Brussels Convention relating to the Distribution of Programme- Carrying Signals Transmitted by Satellite.
The third group consists of treaties which establish classification systems and procedures for improving them and keeping them up to date.
The following four treaties, all dealing with industrial property, fall into this group: the Strasbourg Agreement concerning International Patent Classification (IPC), the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks and the Locarno Agreement Establishing an International Classification for Industrial Designs.
Revising these treaties and establishing new ones are tasks which require a constant effort of intergovernmental cooperation and negotiation, supported by a specialized secretariat. WIPO provides the framework and the services for this work. Recent examples of such work include the above-mentioned Madrid Protocol and Trademark Law Treaty, which entered into force on December 1, 1995, and August 1, 1996, respectively. Currently, at least four possible treaties are being negotiated under the aegis of WIPO: The proposed Patent Law Treaty, a possible Protocol to the Berne Convention, a possible Treaty on Neighboring Rights and a proposed Treaty on the Settlement of Disputes between States in the Field of Intellectual Property.
Why is an intergovernmental intellectual property organization needed?
Intellectual property rights are limited territorially; they exist and can be exercised only within the jurisdiction of the country or countries under whose laws they are granted. But works of the mind, including inventive ideas, cross frontiers with ease and, in a world of interdependent nations, should be encouraged to do so. Therefore, governments have negotiated and adopted multilateral treaties in the various fields of intellectual property, each of which establishes a “Union” of countries which agree to grant to nationals of other countries of the Union the same protection as they grant to their own nationals.
Functions of WIPO, History of WIPO, Simple Explanation of WIPO
objectives and functions of WIPO,importance of WIPO, salient features of WIPO,powers and functions of WIPO, organs of WIPO, objectives of WIPO, what is WIPO and its function, role of WIPO in protection of ipr
What are the Unions?
The Unions administered by WIPO are founded on the treaties. A Union consists of all the States that are party to a particular treaty. The name of the Union is, in most cases, taken from the place where the text of the treaty was first adopted (thus the Paris Union, the Berne Union, etc.).
WIPO’s Unions are
the Paris Union, the Berne Union, the Madrid Union, the Hague Union, the Nice Union, the Lisbon Union, the Locarno Union, the PCT Union, the IPC Union, the Vienna Union and the Budapest Union.
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Define trips? highlight the relationship between trips and ipr?
Trips TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.  It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
Specifically, TRIPS contains requirements that nations’ laws must meet for: copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures.
Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations. The
TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal “to promote access to medicines for all.”
TRIPS has been criticized by the alter-globalization movement. Members of the movement object, for example, to its consequences with regards to the AIDS pandemic in Africa.
TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations.
Campaigns of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an important role in defeating competing policy positions that were favored by developing countries, most notably Korea and Brazil, but also including Thailand, India and Caribbean Basin states.
In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made maximizing intellectual property privileges the number one priority of trade policy in the United States.
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws.
States like Russia and China that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement. Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO’s dispute settlement mechanism.
Objectives of TRIPS
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
Discuss the provisions of TRIPS
Nature and Scope of Obligations TRIPS:
1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.
2. For the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II.
3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members.
(1) In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those conventions.
(2) Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the “Council for TRIPS”).
Define TRIPS? Relationship b/w TRIPS & IPR #Regulatory Affairs M Pharmacy Notes PDF PPT
Provision requirements of TRIPS:
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
• Copyright terms must extend to 50 years after the death of the author, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art. 7(2),(4))
• Copyright must be granted automatically, and not based upon any “formality”, such as registrations or systems of renewal.
• Computer programs must be regarded as “literary works” under copyright law and receive the same terms of protection.
• National exceptions to copyright (such as “fair use” in the United States) are constrained by the Berne three-step test
• Patents must be granted in all “fields of technology,” although exceptions for certain public interests are allowed (Art. 27.2 and 27.3) and must be enforceable for at least 20 years (Art 33).
• Exceptions to the exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict. • No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
• Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
• In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5). TRIPS also has a most favored nation clause. Many of the TRIPS provisions on copyright were imported from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property.
Access to essential medicines:
The most visible conflict has been over AIDS drugs in Africa. Despite the role which patents have played in maintaining higher drug costs for public health programs across Africa, this controversy has not led to a revision of TRIPs. Instead, an interpretive statement, the Doha Declaration, was issued in November 2001, which indicated that trips should not prevent states from dealing with public health crises.
A 2003 agreement loosened the domestic market requirement, and allows developing countries to export to other countries where there is a national health problem as long as drugs exported are not part of a commercial or industrial policy. Drugs exported under such a regime may be packaged or colored differently to prevent them from prejudicing markets in the developed world. In 2003, the Bush administration also changed its position, concluding that generic treatments might in fact be a component of an effective strategy to combat HIV. Bush created the PEPFAR program, which received $15 billion from 2003-2007, and was reauthorized in 2007 for $30 billion over the next five years. Despite wavering on the issue of compulsory licensing, PEPFAR began to distribute generic drugs in 2004-5.
Implementation in developing countries:
The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable changes to their national laws, in two tiers of transition according to their level of development. The transition period for developing countries expired in 2005. The transition period for least developed countries was extended to 2016, and could be extended beyond that.
Developed countries are massive net-exporters of copyright-, patent- and trademark-related royalties. It has therefore been argued that the TRIPS standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries’ development. Many argue[who?] that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to write the weakest IP laws possible. This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their legislation to the extent authorized under Doha.
This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibility, which has often led to developing countries directly copying developed country IP legislation, or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.
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