Intellectual Property Rights & Higher Learning Technical Institutions

Dr.Milind Dandekar Associate Professor, Dept. of IPE, SGSITS, Indore

Intellectual Property Rights

Introduction The Concept of Intellectual Property Different Types of IP Rationale behind Intellectual Property Balancing the Rights of Owner & Society Enforcement of IPR Issues before us regarding IPR

What is Intellectual Property ?

Design ? Piece of Art ? Book ? Film ? Invention or Formula ? Or just an idea? Any thing created by mans Ingenuity, Knowledge & Skill besides labor and capital

Concept of Property
Lay mind : Some material object belonging to a particular person. Concept of Ownership is critical to Concept of Property Ownership: Right to Possess, Use & Dispose at the desire of the owner & to exclude others Society recognition is must Legal Definition : Bundle of rights that the law confers on a person(s) by virtue of ownership and possession of an object.

Types of Property
Two types : Tangible & Intangible Tangible: Land ,Building etc referred to as Corporeal Property Intangible : Copyright, Idea, Innovation etc referred to as Incorporeal Property Intellectual Property is Incorporeal Property and it derives its value from ideas. IP is a dynamic area while corporeal property is a

Classification of IP
Industrial Property : Rights relating to Inventions, Industrial Designs , Trade Marks, Geographical Indication & Appellation of Origin

Copyright : Rights relating to creation of human mind in the fields of Literature, Music, Art and Audio-Visual works (Related Rights & Neighbouring Rights)

Seven types of IP
TRIPS Agreement of the WTO recognizes seven types of Intellectual
Property Rights

1. Copyright & Related/Neighbouring Rights 2. Trade Marks,Trade Names, Service Marks 3. Geographical Indications 4. Industrial Designs 5. Patents 6. Layout Designs of Integrated Circuits 7. Undisclosed Information TRIPS : Trade Related Aspects Of Intellectual Property Rights WTO : World Trade Organisation

Copyright
Copyright is granted for original,literary musical,artistic or audio-visual works The creations of authors, playwrites, composers, artists and filmmakers It includes rights of reproduction, communication to the public, adaptation and translation of work

Trade Marks
Trade Marks & Service Marks : Distinctive Symbols of the company
Trade Names :Name of the enterprise that individualizes the name of the company Geographical Indications(GI)

Specific geographical origin and quality/reputation

Industrial Design
The ornamental or aesthetic aspect of an article Serves as a tool for product differentiation Attracts customers by enhanced visual appeal and become IP to be protected Applied to wide range of products from industry or handicraft

Patent
A Patent is a statutory right granted for a limited period to an inventor in respect of an invention to exclude any other person from manufacturing, using or selling the patented product or from using the patented process, without due permission.
Novelty, Inventive step, Industrial

Layout Designs-Integrated Circuits

Layout Designs (topography) of integrated circuits is relatively new area in IP

Protected as IP against copying but improved design by reverse engineering is regarded as fair.

Undisclosed Information
Undisclosed Information gets recognition as a kind of IP to be protected under TRIPS It virtually restricts honest practices to protection of trade secrets.

Rationale behind IPR

1. Creative activity culminating in IP can be increased by encouragement but not in adequate quantity without economic incentives. 2. Adequate Economic Benefits as just rewards for creation of IP through grant of Monopoly Rights even if for limited period. 3. The provision of the Global IP regime to ensure economic returns and safeguarding interests of all concerned.

Balancing the Rights

There can be no absolute rights in IP because all individual rights are subject to the recognition of the rights of other individuals and the rights of the society.

Role of State & purpose of Law : Harmonize conflicting claims and achieve balance.

IP & Constitution of India

The Constitution of India under entry 49 of Union list of matters mentions about Patents, Inventions, Designs, Copyright, Trade Marks & Merchandise;but it makes no specific reference to IP However IP as a form of property can be put under Article 300A dealing with property and be entitled to a legal right.

Enforcement of IPR
India and the TRIPS Agreement : India has to a large extent complied with its obligations under TRIPS through a series of amendments to its existing laws and through new legislations. However the TRIPS agreement leaves some room to deal with various issues at national level such as definition of an invention, exception to exclusive rights, compulsory licenses and others

New Legislations/Amendments to Existing Legislations

1. 2. 3. The Trade Marks Act,1999 The Designs Act, 2000 The Protection of Plant Varieties and Farmers Rights Act, 2001 The Geographical Indication of Goods (Registration & Protection) Act, 1999 The Semiconductor Integrated Circuits Layout Designs Bill, 1999 The Patents Act 1970,as amended by Patents(Amendment) Act, 2002 The Copyright Act, 1957 togather with International Copyright Order, 1999

4.
1. 2. 3.

All issues regarding IPR in India are governed by these legislations

Issues before Us
What is a patentable Invention ? A new product or process involving an inventive step and capable of industrial application What is not patentable ?

Procedure for Obtaining Patent

Who can apply ? A person claiming to be the true and first inventor of an invention Filing a Patent Application: Only one application is filed for one invention along with provisional or complete specification

The Specification must contain :

Title, sufficiently indicating the subject matter Relevant drawings/graphics Full & particular description of invention Details of its operation or use and the method by which it is to be performed Disclosure of the best method of performing the invention Claims defining the scope of the invention substantiated by the disclosure Abstract providing technical information Declaration as to the inventiorship of the invention

Search for anticipation by previous publication and by prior claim

1. 2. 3. 4. The search requires investigation for Prior Applications Patents Already Granted Already Published or Claimed Impugned one Any objection raised by the examiner are to be removed by applicant within 12 months.

Acceptance & Advertisement

Controller of Patents notifies it to the applicant and also advertises it in the Official Gazette for public inspection From date of advertisement to the date of sealing the patent, the applicant enjoys the privileges and rights as if a patent had been sealed on the date of advertisement except the right of infringement.

Opposition to the grant of Patent

1. 2. 3. 4. 5. 6. 7. Notice to Controller within 4 months from the date of advertisement on following grounds : Wrongfully obtained by the inventor Anticipated in a specification filed for another patent earlier Publicly known in India before priority date of claim Not an invention within the meaning of the Act The information furnished is false Geographical origin is not disclosed or falsely disclosed Convention application not filed in India in prescribed time for the same invention in a convention country

Grant of Patent
Where the application for a patent has been accepted w/o opposition or after disposing the opposition, a patent shall be granted if the applicant makes a request within 6 months of advertisement. The patent so granted shall be sealed with the seal of the patent office and the date shall be entered in the register.

Rights of Patent
Right to exploit the patent Right to grant licence etc Right to surrender Right to sue for infringement LIMITATIONS : Purposes of Government For imparting instructions to pupils Medicine or Drug imported by the Government for its use in hospital, medical institute, Lab, maintained by or on behalf of the Government.

Difficulties Primarily Faced in Creation of IPR in Academic & Research Institute: 1. Lack of knowledge regarding the novelty/innovation of a research work persuade by a scholar with respect to its suitability for creation of IPR. - Patent Search

2. Absence of systematic planning and organizing of a research programme in reference to filing of patent.

To conceive the part or phases of any developmental work justifying its novelty/innovation.

3. Absence of knowledge regarding the timely disclosure of invention to register the right of inventor- ship/creatorship 4. Lack of idea regarding the type of information, level of technicality and extent of experience /data that can be disclosed or made public by lecturing, publication etc. without harming the interest of the work with respect to its right for IP.

5. Poor knowledge of preparation of technical and legal write-up of a work to justifying its suitability to register as IPR prior to the legal consideration. 6. Non availability of legal staff / cell in most of the academic institutes to prepare and plead the case of IPR.

Immediate measures to be taken :

Activation of the system for

Development of Awareness, Attitude and Culture for creation of IP

Critical Issues in IP Creation & IP Management in Higher Learning Technical Institutions

IITs/IISc NITs/RECs BITS Engg. Colleges University Science Dept.

Critical Issues

Which IPs should be created? Which IPs can be created? Why IP should be created? How much IP should be created? How much IP can be created? How to create IP? Challenges in IP Education

Growth of World Patent Filing

Year Applicatio Growth ns Filed Rate (%)
1977 1984 1985 1990 1994 1995 1996 1997 1999 771,700 859,670 1,202,607 1,668,245 2,405,221 2,885,962 3,569,839 4,577,192 7,276,337 12.89 4.76 39.89 9.01 17.10 19.99 23.70 28.22 58.96

2000

9,975,173

37.09

Linkage between HLTIs/ Universities and the Industry

Producing manpower for the industry Designing useful curriculum Teaching concepts required by the industry Create IP for the industry

How to create IP in HLTIs

Creation of IP culture Change of mind set Commercially worthy (patentable) research Conversion of IP to IPRs Transfer of Technology Development of skills (Negotiation, drafting agreements, patent valuation etc)

How to create IP in HLTIs

Faculty Motivation (Linkage with Higher Position) Financial reward & Financial stake

Faculty should do what they should instead of what they can

Development of appropriate Faculty Performance Appraisal Systems Development of IP faculty Research in IP Area Importance of analysis of IP teaching requirements

Emerging Need of IPR Education

Students (B.Tech./M.Tech./MBA/Ph.D..) want more lucrative jobs Industry wants managers IP-educated engineers and

Industry is willing to pay more to good IP-literates More number of students for registration in IPR courses

 Certain issues related Management are critical

to

IPR

Creation

&

IPR

There is need for serious brain storming on what, when, where and how much of IP Education, Training and Research

Why has ceased to be debatable MHRD initiatives in this direction reflect governments vision

THANK YOU