Intellectual Property Rights in India - An Overview

IPR in India an Overview

1. Associate Professor of Law & Associate Professor of Law &
EDC Coordinator of PILawEDC Coordinator of PILaw
www.klgupta.inwww.klgupta.in
Dr. KALPESHKUMAR L. GUPTADr. KALPESHKUMAR L. GUPTA
AtAt
Parul Institute of TechnologyParul Institute of Technology
July 30, 2019July 30, 2019

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Outline of the presentation :-
1.Introduction
2.Branches of IPR
3.Recent Issues in IPR
4.Video on IPR
5.Q & A

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What is Intellectual Property ?
IPR are the legally recognized exclusive
rights to creation of the mind.
Intellectual property (IP) refers to
creations of the mind, such as
inventions; literary and artistic works;
designs; and symbols, names and
images used in commerce.
It’s an intangible asset

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1.Company Value
2.Entry Barriers
3.Legal Monopoly
4.Avoid freeriding
5.Avoid Infringement
6.Financial leveraging
7.Advance of man kind
8.Goodwill
9.Counterfeiting
10.Works or Art
Why do you need to protect your
intellectual property*
*Source :- http://www.jarryip.com/blog/bid/273971/Why-do-you-need-to-protect-your-
Intellectual-Property

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Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS) :-
-TRIPS is an international agreement
administered by World Trade Organization
(WTO)
-Negotiated at the end of the Uruguay Round
of the General Agreement of Tariffs and Trade
(GATT) in 1994
-158 Countries member

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Branches of Intellectual Property :-

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Copyrights works
under Ministry of
Human Resource
Development, Govt.
of India
Protection of Plant
Varieties & Farmer’s
Rights Authority
works under Ministry
of Agriculture, Govt.
of India

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Patents (The Patents Act, 1970) :-
For granting patent following conditions are essential :-
-Novelty
-Non-obviousness
-Utility
-Enablement
Prior Art, Public Domain, Public Use :-
……...Prior art something which is already known to
mankind. Anything which is already known in general
or to specific group of person, whether in the same
country of abroad, cannot be patented

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Patents Application :-
-First inventor/Assignee/Legal Representative can file
application
-Provisional Specification to be attached with
application, a complete specification shall be filed
within 12 months from the date of filing of the
application.
-Controller may ask for further details
-Patent will be granted after complying all requirement
-Term is 20 years from filing of patent application
-Addition can be done in existing patent
-Compulsory licences (Section 84) after 3 years of
granting patent (See Section 92A also)
- Govt. power to use innovation for purpose of govt.
(Sec. 100)

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Patents Co-operation Treaty :-
-The Patent Cooperation Treaty (PCT) is an
international patent law treaty, concluded in June
1970. It provides a unified procedure for filing patent
applications to protect inventions in each of its
contracting states. A patent application filed under the
PCT is called an international application, or PCT
application.
-Total 148 parties of PCT

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Patents (The Patents Act, 1970) :-
Top 50 countries for patent applications 2018
http://icmab.es/european-companies-and-inventors-file-more-patent-applications-in-2018

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Patents (The Patents Act, 1970) :-
Leading 2018 patent recipients:
https://fortune.com/2019/01/07/ibm-tops-2018-patent-list-as-ai-and-quantum-computing-gain-
prominence/

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Patents (The Patents Act, 1970) :-
http://www.mondaq.com/india/x/716804/Patent/Trends+In+Patent+Regime+Of+India+From+20
1217+An+Efficient+Era

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Patents (The Patents Act, 1970) :-
http://www.mondaq.com/india/x/716804/Patent/Trends+In+Patent+Regime+Of+India+From+20
1217+An+Efficient+Era

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Patents (The Patents Act, 1970) :-
https://www.bananaip.com/ip-news-center/patent-and-design-statistics-in-india-recap-2018/

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Patents (The Patents Act, 1970) :-
https://www.bananaip.com/ip-news-center/patent-and-design-statistics-in-india-recap-2018/

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Patents (The Patents Act, 1970) :-
https://www.bananaip.com/ip-news-center/patent-and-design-statistics-in-india-recap-2018/

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Apple Inc. v/s. Samsung Electronics Co. Ltd.
-Dispute regarding design of smart phone
and tablet computers (Year 2011)
-By October 2011, Litigations in 10
countries
-Apple won in US and lost in South Korea,
Japan, UK, Germany, Australia

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Novartis AG v/s. Union of India & Others
(Supreme Court, Decided in April 2013)
The judgment allows suppliers to continue making
generic copies of Swiss firm Novartis’ Glivec or Gleevec
(brand name of Imatinib), which has been shown to
fight chronic blood cancer effectively.
While the Novartis drug costs more than Rs 1 lakh per
month, with doctors often advising patients to take it
lifelong, the generic equivalents cost less than one-
tenth.
For incremental change patent can not be given. A
patent can not be granted for substantial improvement
The ruling would be a relief to some 300,000 patients in
India currently taking the drug.

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Natco v/s. Bayer (Compulsory Licensing)
India's first ever compulsory license was granted by the Patent
Office on March 9, 2012, to Natco Pharma (Hyderabad, India)
for the generic production of Bayer Corporation's (Germany)
Nexavar, a life saving medicine used for treating Liver and
Kidney Cancer.
Bayers sold this drug at exorbitant rates, with one month's
worth of dosage costing around Rs 2.8 Lakh. Natco Pharma
offered to sell it around for Rs 9000, making it affordable for
people belonging to every stratum.
All the 3 conditions of section 84 were fulfilled and the
decision was taken for the benefit of general public.
1. the reasonable requirements of the public with respect to
the patented invention have not been satisfied
2. the patented invention is not available to the public at a
reasonably affordable price
3. the patented invention is not worked in the territory of
India.

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1987
Michael Jackson on the set of the "Smooth Criminal" video.

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https://www.artfido.com/the-secret-behind-michael-jacksons-anti-gravity-lean-was-actually-a-pair-of-
shoes/
Patent was awarded in 1993

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https://patentyogi.com/funny/funday-this-sunday-patented-flatulence-deodorizer-to-make-
your-farts-smell-like-lavenders/
Patent Information
Patent Number: US 6313371
B1
Patent Title: Flatulence
deodorizer
Publication type: Grant
Publication date: 6 Nov 2001
Filing date: 12 Apr 2000
Priority date: 12 Apr 2000
Fee status: Paid
Inventors: Brian J Conant, Myra
M Conant

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Copyrights (Copyright Act, 1957) :-
Copyright can be given for followings
………… Copyright is not given to idea but to expression
of idea
1.Original literary, dramatic, musical or artistic work;
2.A cinematograph film
3.A sound recording
Application to be made to Registrar of Copyrights at
New Delhi
Term of copyright is 60 years from the beginning of the
calendar year next following the year in which the
author dies. In co-author death of last author. For other
it is also 60 years.
Compulsory License can be given under Section 31

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Some leading cases :-
-Harry Potter (Delhi High Court, 2010)
Various rights on Harry Potter theme
-Adobe & Microsoft (Delhi High Court, 2009)
Pirated software case
-Indian Music Industry cases
Music copied from foreign and Indian sources.

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Some leading cases :-
The Chancellor, Masters & Scholars of the University of
Oxford & Ors. v. Rameshwari Photocopy Services & Ors.
[DU Photocopying Case]
No violation of Copyright – Delhi HC (Dec. 2016)

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Some leading cases :-
Subhashchandra Shavjibhai Padasunbiya v. State of
Gujarat,2018 SCC OnLine Guj 1371, decided on 03-08-2018]
The Court concluded by directing to hand over the possession of
the machine to the applicant by affixing the seals at the earliest
and disposed of the criminal case.
Owner of Industrial Drawings under Copyright Act
held entitled to the machine reproduced by copying
thereof
https://blog.scconline.com/post/2018/08/28/copyright-registration-over-industrial-drawings-
entitles-the-applicant-to-the-machine-reproduced-by-copying-thereof/
If a creative person steals your idea, he’s killing his creative
ability, if he steals your art, he’s killing his art, if he makes it
available to the world, it won’t create the impact you could
have created, because it wasn’t from the right source.”
-Michael Bassey Johnson

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Trademarks (Trade Mark Act, 1999) :-
“Trade mark” means a mark capable of being represented
graphically and which is capable of distinguishing the goods
or services of one person from those of others and may
include shape of goods, their packaging and
combination of colours.
…This may include shape, packaging and colour combinations.
This mark may be a logo, symbol, brand, heading, label,
name, signature, word, letter.
“Well-known mark” is not registered but being used for long
time and established itself as a strong brand. Protection is also
available in Trade Mark law.
Valid for 10 years can be renewed.

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Some landmark cases :-
-Benz v/s. VIP Undergarments (Delhi High Court, 1993)
VIP undergarments began selling an underwear with the
name ‘VIP-Benz’
-Havmour Ice Cream Case, Ahmedabad..
In Hyderabad infringement done
-Cadila v/s. Amul (Delhi High Court, 2007 )..
Sugar Free case..
-Satyam Infoway v/s. Siffyney Solutions (SCI, 2004)
Domain Name Case… Passing of Case

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Storm in trademark cup: HC relief for Wagh Bakri (August 2015)
Read more at:
http://timesofindia.indiatimes.com/articleshow/48535691.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
One more case Rajwadi Tea, Owner Bhagwandas Modi (2017)

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Designs (Design Act, 2000) :-
A Design appeals solely to the eye. The eye must be
the eye of the customer on a visual test.. There
should not be any functional consideration.
10 years validity registration. Can be renewed for
second period of 5 years.
Tetrapack
(Founded in 1951 in Sweden)

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Some Leading cases :-
Veet’s S – Shaped Spatula..
..…Reckitt Benckiser launched Veet
hair removal system in India 2004.
Veet came up with a large S-Shaped
spatula which was known as ‘perfect
touch’ spatula. It obtained Design
Regi. in December 2003.
…Wyeth, which sells ‘Anne French’,
another hair removal product
offered a similar spatula according
to Reckitt Benckiser..
Wyeth spatula was already
registered in several foreign
countries.
Wyeth succeeded

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Crocs Inc. USA V Liberty Shoes Ltd. & Ors ., on February 8, 2018,
cancelled the registered design of Crocs Inc. USA and dismissed the
claim of piracy of design made by the Company.
The Court held that, 'it is necessary for protection of a registered
design that the registered design must be an Intellectual Property
Right created after application of sufficient time, labor, effort, etc. and
that there must be sufficient newness or originality i.e. existence of
requisite innovation and that trade variations of known designs
cannot result in newness and originality.'

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A total of 8174 designs were registered between 1
st
January
2018 and 31
st
December 2018 as opposed to 9694
registrations in 2017 indicating a decrease of about
15.68%.

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Geographical Indication (Geographical Indication
of Goods (Registration & Protection) Act, 1999)
“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
Validity for 10 years and can be renewed also

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Darjeeling Tea
(First Regi GI in India)
(Himachal Pradesh)

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Registered GIs :-
-Darjeeling Tea (First Regi GI in India)(Himachal
Pradesh)
-Mysore Silk (Karnataka)
-Kutchh Embroidery (Gujarat)
-Feni (Goa)
-Bikaneri Bhujia (Rajasthan)
-Tirupati Laddu (Andhra Pradesh)
-Nagpur Orange (Maharashtra)
-Scotch Whisky (United Kingdom)
-Porto, Douro (Portugal) etc..
As on April 2019 , Total 344 GIs have been registered
http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Registered_GI_01_04_19.pdf

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Registered GIs :-
http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Registered_GI_01_04_19.pdf
Kesar Mango
Tirupati Laddu
Kolhapuri Chappal
Patan Patola

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Registered GIs :-
Odisha Rasagola gets GI Tag:-
Battle between West Bengal v/s. Odisha
Odisha Small Industries Corporation Limited will be the
registered holder of Odisha Rasagola’s GI tag
https://timesofindia.indiatimes.com/india/odisha-rasagola-gets-gi-
tag/articleshow/70431428.cms Dt. July 29, 2019

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Traditional Knowledge :-
Traditional Knowledge is passed on from one
generation to the next, mostly in oral form and
sometimes in writing. The knowledge comprises
innovations, information, practices, customs,
traditions etc. The knowledge may be with regard to
the use of natural resources, environment, plants and
animals, curing diseases or nature in general. Most of
knowledge is undocumented.
Some leading cases :-
-Basmati Rice
-Neem.. Controlling fungi in plants by using neem oil
-Turmeric for healthy wounds.
….. In USA patent granted. India succeed
stating it was prior knowledge in India

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Trade Secret/Confidential information :-
Three essential elements
-The subject matter must be a secret capable of
adding economic value
-The owner must take reasonable precautions to keep
it a secret. The purpose is to ensure that no one
claims protections for something which was flowing
freely to competitors.
-In cases of breach, the owner must prove that the
competitor got the information in a wrongful manner
Some leading cases :-
Diljeet Titus case.. Delhi based lawyer and his
associates case.

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The Protection of Plant Varieties and Farmer’s
Rights Act, 2001
Importance of Plant Variety
The breeding activities and exploitation of new
varieties are the decisive factors for improving rural
income and their overall economic development. Since
the process of plant breeding is long and expensive, it
is important to provide an effective system of plant
variety protection with an aim to encourage the
development of new varieties of plants for the benefit
of society.
What are Farmers’ rights?
Farmer who has bred or developed a new variety shall
be entitled for registration and other protection under
PPV&FR Act, 2001 in the same manner as a breeder of
a variety.
Cont..

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Cont..
Duration of protection of a registered plant variety.
The duration of protection of registered varieties is
different for different crops which are as below:
1.For trees and vines - 18 years.
2. For other crops - 15 years.
3. For extant varieties - 15 years from the date of
notification of that variety by the Central Government
under section 5 of the Seeds Act, 1966.

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PepsiCo India Holdings (PIH) announced it is withdrawing lawsuits
against nine farmers in north Gujarat, after having sued 11
farmers for “illegally” growing and selling” a potato variety
registered in the company’s name. (July 2019)
The company had sued nine farmers in Gujarat for alleged
intellectual property “rights infringement” on grounds that they
“illegally” grew its registered potato variety used to make Lay’s
chips. (May 2019)

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Some Latest Issues in IPR :-
Cyber Squatting (Domain Squatting) :-
……using a domain name with bad faith intent to profit from
the goodwill of a trademark belonging to someone else. The
cybersquatter then offers to sell the domain to the person or
company who owns a trademark contained within the name
at an inflated price.
1. Yahoo! Inc. v. Akash Arora and Anothers (1999)
2. www.arunjaitley.com (2009)

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The Internet Corporation of Assigned Names and Numbers (ICANN)

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IPR has shelf life of a banana
– Bill Gates

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Some important websites :-
http://www.ipindia.nic.in/
http://copyright.gov.in/
http://www.plantauthority.gov.in/
https://www.icann.org/
http://www.wipo.int/portal/en/index.html

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Dr. Kalpeshkumar L Gupta
www.klgupta.in