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 INNOVATION AND INTELLECTUAL PROPERTY RIGHTS : AN OVERVIEW OF THE INDIAN LAW

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                                  “The value of an idea lies in the using of it”

                            -Thomas Edison (Inventor)

Abstract

Intellectual Property Rights is usually considered as innovative ideas, creations which can be protected by an individual, by the overarching virtue of right to property provided under the constitution. The Parliament has come up with many rules and regulations in order to protect their innovation from usage by others and also, in order to reap them the commercial benefits that could be enriched from the particular innovation or idea. There are different types of intellectual property rights like trademark, patents, copyright, etc. This paper basically deals with an overview of the innovation and intellectual property rights in India. Intellectual Property Rights have become extremely important considering today’s business-oriented times. Also, it is one of the basic rights of an individual to make use of the property or idea totally created by him/her. This paper would also give judicial references to make understanding better.

Keywords – Intellectual Property Rights, IPR, Trademark law, Patent law, TRIPS, Copyright

                        Laws

Introduction

Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refer to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time. [1]

The Indian Constitution guarantees a number of fundamental rights, including the right to life (which is broadly interpreted to include dignity, privacy, livelihood, right to shelter, access to emergency healthcare, and a clean environment), the right to equality and non-discrimination (on specific grounds such as gender, descent, race, caste, religion, and so on), the right to primary education, freedom of speech, association, and movement, and the right to business, trade, and commerce. Property rights (subject to eminent domain expropriation based on a decision of fair compensation) were removed from the Constitution’s Chapter on Fundamental Rights in 1978 and are now assigned to another area.

The Supreme Court in the K.T. Plantation[2] (2011) ruling8 holds that intellectual property enjoys a high degree of protection (“The expression ‘Property’ in Art.300A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognized by law”).

Any society’s progress is inextricably linked to intellectual property rights and the policies that govern them. Inventions These legal rights allow the inventor/creator or his assignee the exclusive right to fully employ his invention/creation for a set length of time. It is widely acknowledged that intellectual property (IP) plays a critical role in today’s economy. It has also been proven decisively that the intellectual labour associated with innovation should be prioritised so that public benefit can be realised. There has been a significant increase in the costs of research and development (R&D), as well as the investments required to bring a new technology to market.[3]

The stakes for technology developers have risen dramatically, and protecting information from unauthorised use has become necessary, at least for the time being, to secure the recovery of R&D and other associated costs, as well as appropriate earnings for continued R&D investments.

IPR is a powerful weapon for protecting the inventor/creator of an IP’s investments, time, money, and effort, because it offers the inventor/creator an exclusive right to use his invention/creation for a certain length of time. As a result, IPR contributes to a country’s economic development by encouraging healthy competition, industrial progress, and economic prosperity.

IPR legislation and administrative procedures have their origins in Europe. The practise of issuing patents dates back to the thirteenth century. In several areas, England was technologically sophisticated in comparison to other European countries, and it was utilised to lure artisans from other countries on favourable conditions. It was in Italy that the first copyrights were discovered. Venice can be considered the cradle of the IP system because it was here that most legal thought in this area took place; laws and processes were created for the first time in the world here, and other countries followed suit.

The Indian Patent Act is more than 150 years old. The first was the 1856 Act, which was based on the British patent system and established a 14-year patent period, which was followed by other acts and changes.

There was a high risk of infringement, economic loss, and the end of an intellectual era in the country due to a lack of IPR understanding. As a result, there is an urgent need for IPR information to be disseminated in order to promote indigenous innovations and breakthroughs in the sphere of research and technology. In the preceding section of this paper, an attempt has been made to emphasise numerous intellectual property rights in relation to India, as well as their respective norms, regulations, and importance and role in society.

Both industry and authorities are focusing on ways for developing innovation capability as they consider India’s next stage of growth. At a national level, innovation and competitiveness are related, as seen by the significant association between country ratings on the Global Innovation Index and the Global Competitiveness Index.

At the subnational level, there is an increasing need to comprehend the dynamics of innovation and take the necessary steps. This concept begins with the recognition that India’s innovation is a multifaceted reality rather than a single entity, with Indian states rising at different speeds.

Objectives of research

  1. To research about the Intellectual Property rights in India
  2. To understand an overview of the laws
  3. To address issues if there are any

Literature Review

Due to high innovation risks, short product cycles, investments in R&D, production, and marketing, and the need for highly skilled workers, intellectual property rights (IPRs) have become increasingly vital in the face of a changing trade environment characterised by global competition and human resources with expertise.

  1.  Tiwari, S; 1999: The author in this paper conveys that India signing the TRIPS Agreement relates directly to enforcement of intellectual property rights. There is a set of enforcement standards which all members of the World Trade Organization are obliged to follow set by the agreement: this includes: 1} general guidelines to be followed by the Members 2} the provisions describe civil 3} administrative and criminal procedures 4} border measures for enforcing their intellectual property right 5} For developing countries some possible areas are identified where changes would be needed. Thus this emerged as a compliant procedure to be followed and implement the IP law in India.
  2. Barbiroli, Giancarlo 2001; The author explains the aspects of global performance in this article: “internal” and “external” impacts, indicators that can measure materials, energy, environmental, operational, volume, inputs effectiveness/efficiency of a process, product quality and environmental performance, both at the technical and economic levels. They can measure the effects of a partially or completely new technology on total and intellectual employment, as well as the environment, in the socioeconomic domain. They may assess local and worldwide importance, indispensability, and knowledge growth within the strategic sector. Furthermore, data can be gathered from the corporate sphere 6 to 12 months after the innovation has been deployed, however the macro-sphere need wait 1 to 2 years.
  3. Lall, Amar Raj; Khurana, Vinod; 2002: The author analyses and discusses the outline of some of the challenges appearing in connection with brand valuation in the changing economic landscape in this article. Types of brands, their valuation, intangible and concrete benefits of brand valuation are all discussed.
  4. King, Kelvin 2002, in this paper the author discusses intellectual capital valuation concepts, methods and procedures applied value to intellectual property. Three broad categories of valuation methods, 1} market based 2} cost based 3} estimates of future economic benefits. The author explains the phenomena of valuation process of IP and creating intellectual capital with its implications.
  5. Bernard Marr & Jay Chatzkel 2004 in this article, the author discusses the rationale behind the notions of managing, measuring, and reporting intellectual capital. The author goes on to say that existing evaluation theories, taxonomies, and research methodologies all require a standardised methodology for calculating and considering intellectual capital.

Findings:-

Intellectual property rights are critical for progressive societal development in a knowledge-based economy. IPR is a basic requirement for participating in local and worldwide competitive trade, as it is impossible to create an inventive environment without disseminating and implementing IPR information. It is critical for policymakers to incorporate intellectual property rights into the fundamental educational system and to encourage innovators and creators to register their inventions. In terms of abundant raw materials, low-cost labour, and imaginative and creative dedicated workforce, India has it all. Without a doubt, India and other developing countries will explore Intellectual Property Rights in order to increase their fair share of global trade.

In the form of a national IP policy, the basic contours of IP policy are clearly visible. India currently needs to improve its intellectual property (IP) framework, both in terms of regulation and enforcement. This enhancement will aid in the establishment of a better atmosphere for the country’s overall creativity. There is also a need to begin looking at and comprehending IPR regimes in other countries, and, more crucially, to implement the necessary improvements, such as better digitisation, in the current system. In order to achieve this, Indian states and industry would have to take a proactive role in lobbying the central government for a better IP protection framework, which will encourage more innovation at the state level and contribute to India’s future competitiveness. The performance of specific industries, such as the pharmaceutical business, will be influenced by the IPR regime in place in India. However, before drafting and executing IP policy, it is critical to consider the possible consequences of applying various policies.

  • WIPO

The World Intellectual Property Organization (WIPO) was founded in Stockholm in 1967 to protect intellectual property rights around the world. In 1974, it was designated as a United Nations agency. WIPO creates frameworks and regulates numerous IPR policies around the world. WIPO’s fundamental goal is to promote economic, social, and cultural development while preserving biodiversity and traditional knowledge through a balanced and effective international IP system. In addition, it is responsible for harmonising inequalities across countries, particularly between developed and developing countries, by changing international regulations so that each of them has an equal chance in the rising globe.

  • Patent

A patent is an intellectual property right given by a government office to an inventor for a novel technological invention. 16 The term “innovation” refers to any challenge that can be solved in the development of a product or a method. Patents are the most precious sort of intellectual property, and rightfully so.

The patentability of any invention needs to fulfil the following criteria:

1.  Usefulness: invention must have industrial applicability or applied for practical purpose.

2. Novelty: invention must be new technology which has not been published or available in prior art of the country or elsewhere in the world before the date of patent filing.

3. Non obviousness: Invention which can be done by any ordinary skilled person is obvious and cannot be patentable. Hence invention must not be obvious for patentability.

As per Section 3 of the Patent Act, 1970 the following are not patentable:

• Frivolous invention

• Invention against the natural laws

• Inventions which are not fair to health of human, animal, plant life, environment as well as contrary to public order or morality

• Discovery of any living thing; discovery of any non living substances occurring in nature; formulation of any abstract theory; discovery of any scientific principle

• Substance or chemical obtained by mere admixture resulting in the aggregation of the properties; mere arrangement or re arrangement of known devices

• Invention relating to atomic energy and related to security of India.

On the one hand, the inventor is awarded exclusive rights that provide recognition and financial benefits, but on the other hand, the inventor is required to reveal all relevant material in a descriptive manner to the patent office when filing a patent application. Anyone can see the material in a patent filing, and it undoubtedly inspires other academics to continue to create in the relevant sector. The patent registration procedure in India is governed by the Controller General of Patents, Designs, and Trademarks. This office is part of the Ministry of Commerce and Industry’s Department of Industrial Policy and Promotion.

Some of the landmark cases related to patents are

  • BAJAJ Auto Limited Vs. TVS Motor Company Limited JT 2009 (12) SC 103
  • Bayer Corporation v. Union of India, 162 (2009) DLT 371
  • Novartis vs. Cipla, 2015
  • Trademarks

In the ancient world, trademarks were already in use. Around 3000 years ago, Indian craftsmen used to engrave their signature on their jewellery or artistic creations. The trademark has become a major feature in the current world of international trade as a result of industrialisation. A trade mark is a distinct symbol or logo that indicates that a specific item is created or delivered by a specific person, industry, or business. Service marks, like trademarks, help to identify service providers from their competitors. A corporation may have several forms of trademarks for its varied products, but trade names are used to identify itself from other companies or enterprises.

Trademarks or trade names assist businesses in gaining customer familiarity, reputation, and trust. In most circumstances, buyers rely on trademarks because inspecting a product or service rapidly to assess its quality is difficult. A certain segment of clients is particularly concerned about the brand and will pay a premium for the brand’s prestige, even if the quality is identical, in order to stand out from the crowd.

Any unique mark capable of distinguishing goods and services of one venture from those of another and capable of being graphically depicted can be trademarks, according to the Indian trademarks legislation.

There is no need to limit the validity of trademarks because they do not give exclusive rights that can be used. However, trademark validity does not have a time restriction.

Published in the Articles section of would result in an excessive quantity of trademark registrations with no practical application. The original period of trademark registration in India is ten years, after which it must be renewed on a regular basis. Trademark registration can be applied for at the Trade Mark Registry Offices in Mumbai (head office), Delhi, Kolkata, Ahmadabad, and Chennai.

  • Copyright and related rights

Copyright is a legal word that refers to the rights that are granted to authors and artists for their literary and artistic works. In exchange for cash, creators frequently sell the rights to their works to persons or companies best suited to promote them. These payments are often made contingent on the work’s actual use, and are referred to as royalties.

The primary social goal of copyright protection is to stimulate and reward innovative work. Copyright revenue may allow authors to devote more time to creative work and may help to justify the significant upfront investment often required in the development of specific types of works, such as films. Authors frequently profit from their work by selling it to publishers and producers. The economic backbone of artistic industries is thus copyright. Another justification for copyright, as with other IPRs, is equity — the belief that it is only fair that an author receives some benefit from others employing his or her creative labour.

Performers are also safeguarded for their artistic endeavours. The investment required to generate sound recordings, as well as the financial and organisational resources required to bring a broadcast to the public, are safeguarded by phonogram producers and broadcasting companies.

The original domain of copyright was literature, art, and other forms of cultural expression. In recent years, it has expanded to include new sectors such as computer programmes and databases, and the economic value of copyright has risen dramatically in knowledge-based economies.

  • IPR status of India

In 2007, the World Bank conducted a study of 140 nations throughout the world to determine their Knowledge Economy Index (KEI) based on their knowledge-based initiative, regulatory framework, economic incentive and institutional regime, and information and communication technologies (ICT) infrastructure. Due to a lack of the aforementioned factors, India was rated 101st.

Similarly, India ranked at 14th, 9th and 13th position in patents, marks and designs respectively based on total (resident and abroad) IP filing activity by origin in 2014.50 Rankings are based on the total numbers of applications filed by origin. It can be analysed that India’s worldwide participation in IPR filing activity is mere 1.6%, 3.14% and 0.82 % for patent, trademarks and industrial designs, respectively.

Unawareness amongst youth, academicians, researchers, industrialists and traders in India about IPR and its benefits is the main reason for lagging behind in IPR participation. Even, Micro, Small and Medium Enterprises (MSME) that constitute around 95% of all units; 40 % of total value addition; nearly 80% of the employment of the total manufacturing sector; and 35 % of total exports are also lacking in IPR edge. Due to aforesaid reason ,there is no Indian multinational company in top 100 patent applicants worldwide during 2003-12. Indian industries can survive if they prepare themselves as per the local as well as global IPR needs as a strong IP portfolio makes a good business sense by securing loans, enhance market image, attract good alliance and relations. Thus, there is a dire need to develop appropriate guidelines to rationalize IP strategy. Definitely, India has the potential and skills to emerge as global leader if appropriate IPR strategy is practiced to improvise its share in global trade.

  • IPR policy of 2016

The IPR Policy, which was adopted in May 2016, is a huge step forward for the Indian government in terms of encouraging creativity and innovation. It provides the groundwork for India’s IPR future. The Policy aims to strengthen the country’s IPR framework by increasing public awareness of the economic, social, and cultural benefits of IPRs, stimulating IPR generation and commercialization, and modernising and strengthening service-oriented IPR administration as well as enforcement and adjudicatory mechanisms for combating IPR infringements.

  • It’s clarion call is “Creative India; Innovative India”.

The Policy recognises the critical role of creativity and innovation in the creation and development of a knowledge economy. It links innovation with the creation of intellectual property (IP). The policy has a twin goal of allowing IP commercialization by raising awareness and alleviating administrative bottlenecks by simplifying procedures. Copyrights, which are now controlled by the Ministry of Human Resources, are being moved to the Department of Business Policy and Promotion (DIPP) to make them more consistent with other IPs.

The policy recommends a research to look into the viability of an IPR exchange in order to enhance commercialization and value for IPs. By bringing together investors and ip owners/users, such a dedicated ip exchange could encourage investment in ip-driven industries. The policy also encourages the government to investigate the possibility of quicker patent application review in order to boost production in Asian countries. In addition, the Policy considers the rural and marginalised economies.

Conclusion:–

Now that we have taken an holistic view of the Intellectual Property Rights in India, lets see what conclusions can be derived.

What is the need of IPR?

The ability of humanity to produce and invent new works in the fields of technology and culture is critical to its progress and well-being.

  • Stimulates innovation: The legal protection of new creations encourages more resources to be committed to further innovation.
  • Economic growth: Promoting and protecting intellectual property stimulates economic growth, helps to create new employment and industries, and improves people’s quality of life.
  • Protect creators’ rights: IPR is essential to protect creators and other producers of intellectual commodities, goods, and services by guaranteeing them time-limited rights to regulate how the manufactured things are used.
  • It encourages creativity and innovation while also making doing business easier.
  • It allows for the transfer of technology through foreign direct investment, joint venture and licensing.

Achievements under the new IPR policy

  • Improvement in GII Ranking: India’s ranking in the World Intellectual Property Organization’s (WIPO) Global Innovation Index (GII) has risen from 81st in 2015 to 52nd in 2019.
  • Institutional mechanisms for IP protection and promotion need to be strengthened.
  • Clearing the Backlog/Reducing the Pendency in IP Applications: The government’s increased technical staff has resulted in a significant reduction in the pendency in IP applications.
  • Electronically created patent and trademark certificates can now be issued automatically.
  • Increase in Patent and Trademark Filings: Patent filings climbed by approximately 7% in the first eight months of 2018-19 compared to the same time in 2017-18. During this time, trademark filings have climbed by roughly 28%.
  • The 2003 IP Process Re-engineering Patent Rules have been updated to streamline processes and make them more user-friendly. In 2017, the revised Trade Marks Rules were published.
  • IPR Awareness Programs: IPR Awareness programmes have been held in academic institutions, including rural schools through satellite transmission, as well as for industry, law enforcement, customs, and the judiciary.
  • TISCs (Technology and Innovation Support Centres): TISCs (Technology and Innovation Support Centres) are TISCs have been developed in various institutions across various states in collaboration with WIPO.

Way Forward:-

  • In schools, encouraging a culture of innovation. Academic courses must be overhauled.
  • For addressing IPR-related disputes, a proper resolution mechanism is required.
  • Unless and until India solves loopholes in its IP laws and regulations, it would be unable to fully benefit from the transformative benefits of a strong IP system.
  • The success of India’s main programmes, Make in India and Start up India, is contingent on the expansion of the innovation ecosystem and improved IPR protections.
  • More education regarding the creation, protection, and enforcement of intellectual property rights is needed to inspire Indian industry to not only innovate, but also to protect and defend its innovations.

Bibliography:

  1. WIPO Manual: What is Intellectual Property? http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf.
  2. IPO Intellectual property handbook, WIPO Publication no. 489(E) ISBN 978-92-805-1291-5, WIPO 2004 Second Edition Reprinted 2008
  3. ET Bureau: India ranked second last in Intellectual Property Index, http://articles.economictimes.indiatimes.com/2015-02-04/news/58795926_1_ip-environment-gipc-intellectualproperty-index (accessed on 4 February 2015).
  4. Sinha B, Joshi H & Ghosh P K, Challenges in creation and management of knowledge capital in technical educational institutions, Journal of Intellectual Property Rights, 14 (2009) 340-345.
  5. Nair M D, TRIPS, WTO and IPR – World Patents, Journal of Intellectual Property Rights, 15 (2010) 151-53.
  6. Mishra N, Registration of non-traditional trademarks, Journal of Intellectual Property Rights, 13 (2008) 43-50
  7. Verma S K, Financing of intellectual property: Developing countries’ context, Journal of Intellectual Property Rights, 11 (2006) 22-32.
  8. Nair M D, GATT, TRIPS, WTO and CBD-relevance to agriculture, Journal of Intellectual Property Rights, 16 (2011)176-182.
  9. Venkataraman K & Latha S S, Intellectual property rights, traditional knowledge and biodiversity of India, Journal of Intellectual Property Rights, 13 (2008) 326-335.
  10. Maheshwari V & Bhatnagar P, Small scale industries and IP management: need to recognize intellectual asset, Journal of Intellectual Property Rights, 13 (2008) 139-144.

NAME – SHRAVASTI YADAV

COLLEGE NAME – GUJARAT NATIONAL LAW UNIVERSITY (BA LLB 2021 – 26)

[1] Singh R., Law relating to intellectual property (A complete comprehensive material on intellectual property covering acts, rules, conventions, treaties, agreements, case-Law and much more), Vol 1., New Delhi: Universal Law Publishing Co. Pvt. Ltd; 2004.

[2] K.T. Plantations v. State of Karnataka 2011 (9) SCC 01.

[3] Department of Science and Technology (DST), Government of India; New Delhi, 2002