Dr.

Alka Chawla
Faculty of Law
University of Delhi
alka.chawla@rediffmail.com
26.03.2019
 Quasi federal country with 29 States and 7 Union Territories

 Constitution of India is the fundamental law

 Population is 1.3 billion

 India’s economy is the fastest growing economy in the world

 Centre has power to enact IP Laws

 States have the power to enforce IP Laws

 Single integrated Judicial System with one Supreme Court

and 25 High Courts

 Commercial Courts have jurisdiction over IP matters

 Berne Convention (Copyright) since 1928
 Marrakesh Treaty for Access to Copyright Works for Visually
Impaired Persons 2013
 Madrid Protocol (Trademarks)
 Paris Convention (Industrial Property)
 Patent Cooperation Treaty (Patents)
 WTO/TRIPs
 Nairobi Treaty (Protection of Olympic Symbol)
 Budapest Treaty (Deposit of Microorganisms for the Purposes of
Patent Procedure) since 2001
 Washington Treaty in respect of Integrated Circuits
 Encourage and promote creativity and innovation.
 Comply with International Obligations.
 Make IP Laws TRIPs compliant
 Create balance between private rights and public interest. Protection of
interests and welfare of the citizens as mandated by the Constitution of
India
 Government announced 2010 – 2020 to be decade for innovation.
 National IPR Policy announced in May 2016.
 IP shall be viewed in a manner that :

 IP creativity and innovation is for the benefit of all

 IP results in promotion of science and technology , art and culture,

biodiversity and traditional knowledge.

 Knowledge becomes the main driver of development.

 Knowledge earned should be knowledge shared

Develop dynamic , vibrant, balanced IP System to :

 foster creativity and innovation and thereby promote

entrepreneurship and enhance socio economic and cultural
development and

 Focus on enhancing access to healthcare, food security and

environmental protection
1. To create IP Awareness
2. To stimulate generation of IPRs
3. Strong and Effective Legal and Legislative Framework
4. Modernize and Strengthen IP Administration
5. Get value for IPRs through Commercialization
6. To strengthen enforcement and adjudication
7. To strengthen and expand Human Resources
 IPR Policy holistic slogan( Creative India Innovative India) is
linked to other national initiatives as:

 Make in India
 Skill India
 Start up India
 Start Up : Entity incorporated or registered in India not prior to
seven years (in the case of Startups in the Biotechnology sector,
the period shall be up to ten years)

 Annual turnover not exceeding INR 25,00,000,oo(25cr) in any

preceding financial year

 Working towards innovation, development, deployment or

commercialization of new products, processes or services driven
by technology or intellectual property.
 Vision of SIPP to encourage innovation and creativity

 Objective to provide Start ups with high quality IP services

and resources

 Facilitators empaneled. Paid by Central government. Help in

filing and disposal of applications in Patents, Trademarks and
Designs

 Advise Start ups domestic or foreign on IPR on pro bono basis

 SMEs to pay only 50% of the fee payable by other legal entities This facility
can be availed equally by foreign applicants.

 80 % Fee concession, as compared to the fee for legal entities, is available

for filing and other procedures in respect of patent applications filed by
Startups.
 Expedited Examination of Patent Applications
 Applicants for international PCT applications who have selected Indian
Patent Office as ISA/IPEA or Start-ups can request for Expedited
Examination of their patent applications.
 The Copyright Act, 1957
 The Trade marks Act, 1999
 The Patents Act,1970
 Designs Act,2000
 The Geographical Indications of Goods
(Registration and Protection) Act, 1999
 The Semiconductor Integrated Circuits Layout Designs Act, 2000
 The protection of Plant Varieties and Farmers’ Rights Act, 2001
 Biological Diversity Act, 2002
 Amended in 1982,1992,1999 and 2012
 Subject matter : original literary, dramatic, musical, artistic works; cinematograph films ;
sound recordings.
 Registration not mandatory
 Compulsory license provision for works withheld from public; for the benefit of persons
with disability
 Moral rights for performers
 Rights to audio visual performers
 TRIPS compliant , WCT and WPPT provisions added in 2012
 TRIPS compliant

 Protection for registered and unregistered trademarks

 Elaborate provisions for protection of Well Known trademarks

 Protection against dilution of well known TM

 Registration mandatory

 The term of a design registration is initially for a period of ten years.

 The renewal is possible for further period of 5 years

 The registration of a design confers the proprietor copyright in the design for the
period of registration.

 Copyright means the exclusive right to apply the design in respect of the article for
which it is registered
 TRIPS compliant product patent regime
 Registration mandatory
 Provision against Evergreening (Novartis case : Therapeutic
Efficacy for drugs)
 Provisions for compulsory licensing (Bayer case : generic drug
produced in INR 8000 whereas Bayer in INR 8,00,000)
 Term : 20 years from date of application
 “DESIGNS”

Purely Designs with

Functional / eye-appeal & capable of
artistic works
utilitarian Industrial application

Patents Copyright Designs

Act, 1970 Act, 1957 Act, 2000
 For Agricultural , natural , manufactured goods , handicrafts , goods of
industry , food stuff

 Any association of persons or producers or any organization representing

the interest of the producers of the concerned goodsmay apply

 Authorized user registration also required

 Registration for 10 years. Can be renewed

 320 products have been given GI status

 IPO website redesigned to improve contents and ease of access
 At each IPO location : IPR help desks and online guidance systems
through email
 Cell for IP Promotion and Management (CIPAM)set up with a mandate to
effectively implement National IPR Policy
 Examiners of Patents recruited in large numbers
 Comprehensive e filing with payment gateway facility
 Provision for video conferencing of hearings in patent offices
 In TM pendency reduced from 14 months to 1 month

 In Design pendency reduced from 8 months to 1 month

 If e filing then reduction in fee

 IP cells created in police departments

 Digital crime units created in different states

 Administrative enforcement agencies

 Judiciary

 Alternate Dispute Resolution Mechanism

 Custom officials for Border measures

 Police and IPR cells of Crime Branch

• Anton Piller Order -Ex parte inspection

• Mareva Injunction-Freezing of assets

• John Doe Order against unnamed persons

• Interlocutory Injunction -relief before full trial

• Permanent Injunction -perpetual till term expires

 Compensatory Damages -to make up for loss
suffered by Plaintiff

 Punitive Damages -to deter wrong doers.

Increased use in IPR cases

 Account of profits -Investigation of actual

accounts of defendants
 Rationale- IPR violations affect the social ,cultural and economic
development of the nation

 Almost all IPR legislations provide for criminal law provisions.

 Imprisonment- minimum is mandatory. Increases with subsequent

conviction

 Fine- minimum is mandatory .Increases with subsequent conviction

 Earlier raids conducted only on complaints

 Now proactive role of police. Suo motu raids by police.

 Example: CR Act allows search and seizure without warrant

 India fastest growing Economy
 English speaking population
 IPR laws similar to UK
 Proactive initiatives of Government : National IPR Policy, SIPP, Make in India
 IP Offices modernized
 Rules amended to quicken IP registration
 Enforcement Officers like Police, Customs, Judiciary sensitized to IP issues