Introduction to intellectual property law

4711 (Cologne)

Intellectual Property Law
Dr. Tabrez Ahmad
www.technolexindia.com
http://iplexindia.blogspot.com

Dr. Tabrez Ahmad, http://iplexindia.blogspot.com 1

 All rights and IPRs in the e-contents of various power
point presentation slides/syllabus/pages are reserved
in favour of Dr. Tabrez Ahmad and any violation will
result in prosecution."Prior Written Affirmative
Permission" is required before dealing with or using of
any part of the e-contents in any manner whatsoever.©


Must do before starting the course
 Collect IPR syllabus from KLS Library
 Purchase an IPL Bare Act
 Get membership
http://groups.google.co.in/group/iprkls
 Become follower of the Blog:
http://iplexindia.blogspot.com


Agenda

1. CONCEPT OF PROPERTY & INTELLECTUAL PROPERTY
2. IP UBIQUITOUS IN LIFE
3. RATIONALE BEHIND IP
4. PROTECTION OF IP BY PRIVATE AND PUBLIC DEBATE
5. NATURE OF IPRs
6. MAIN IP INSTRUMENTS
7. STRATEGIC ELEMENTS
8. INTERNATIONAL FRAMEWORK
9. NATIONAL REGIME
10. RECENT WIPO CASE of Mahindra & Mahindra v. Zach Segal.


Dr. Tabrez Ahmad,
http://iplexindia.blogspot.com 5

CONCEPT OF PROPERTY INTELLECTUAL
PROPERTY

Natural object becomes a resource when it
satisfies a human want
A resource possessed and owned becomes a
property
Traditional property have bundle of legal rights
linked to ownership and possession of an item
 (Tangible: related to physical objects)
Intellectual Property is intangible property


CONCEPT OF INTELLECTUAL PROPERTY Cont…

Concept of Private Property and Freedom
of contract

 Private property and contract
 Right to property and Indian constitution
 Freedom of Contract


CONCEPT OF INTELLECTUAL PROPERTY

It is the PROPERTY CREATED BY APPLICATION OF
HUMAN MIND and Investment of money, labour and
judgment.
Intangible (non-physical) in nature- derives
value from ideas
There is no uniform definition of IP
 In knowledge age, IP is a key to techno-
economic growth


2. IP UBIQUITOUS IN LIFE
Articles of food, furniture, clothing, textiles,
cosmetics, pharmaceuticals, entertainment
gadgets, machinery, books, etc. are all IP
protected.
Domain of IP is ever expanding with advent
of Technology and Globalization : GI, IC
topography are new additions, Traditional
Knowledge/Biodiversity are likely additions


3. RATIONALE BEHIND IP
 The creative activity culminating in IP is necessary
for socio-economic progress
 Material incentives and rewards encourage greater
creative activity
 IP rights grant monopoly through contract with the
Govt. to ensure rewards
 The interests of owner and society are balanced by
limiting periods of monopoly with obligation to
disclose and remedies against abuse of rights
 Disclosure brings knowledge in public domain

4. PROTECTION OF IP BY
PRIVATE AND PUBLIC DEBATE

 Why govt. is required to protect IP
 Whether govt. is really able to protect IPRs
 Whether we require IPR govt. offices.
 Why not only Private Protection


5. Nature of IPRs

a. Key issues
b. Balancing of Interests


5. NATURE OF IPRs
 Essentially negative rights to stop others from
copying or counterfeiting
 In patents, being first with an invention pre-empts any
right of another making same invention independently.
 In copyrights, the right is diluted as right is over the form
of expression and not over idea.
 IPRs being statutory rights are legally enforceable.
 They are territorial in nature.


5.a. Key issue :
Ownership of Knowledge

versus

Knowledge Piracy

IPR plays a decisive role

5.b Balancing of Interests

Private Public
Producer Consumer
Industrialized Economies Developing Economies

Monopoly Competition
“Private Interest Must Yield Public Good”

5.b. Balancing of Interests cont….


cont….
Controlling Counterfeiting

…….A never ending challenge


.6 MAIN IP INSTRUMENTS

1. Trademarks, Trade Names & Services Marks
2. Geographical Indications
3. Trade Secrets and Confidential Information
4. Patents
5. Industrial Designs
6. Layout-designs of Integrated Circuits
7. Plant Varieties
8. Copyrights And Related Rights

First seven are also called as Industrial Property Rights



 Protection Offered By Each One Of The
Tools
 Period Of Validity

 Geographical Limits

 Enforcement Features

 Licensing Issues, Benefit Sharing

 Other Legal Implications

A clear appreciation of these…. Imperative for all IPR players


Options available to the IPR Holder
 Exploit the IPR himself
 License the IPR to another party (s) with mutually
negotiated benefit sharing arrangements
 Cross License for mutually independent working and / or
collaborative working
 Assign the IPR to another party (s) for an appropriate
return
 Barter rights
 Establish a franchise system involving other parties
 Take action against those who infringe his rights
 Let the rights selectively lapse in certain countries


7. STRATEGIC ELEMENTS Cont..

 Realising Value

 Valuation of Knowledge and IPR
 Licensing of IPR
 IPR Insurance
 IPR as a collateral


7. STRATEGIC ELEMENTS Cont..

How does one realise the value of
one’s intellectual assets

A structured audit is necessary

7. STRATEGIC ELEMENTS Cont…

 IPR Strategies
 Effective use of International Conventions
 Strategic options in the statutory provisions
e.g. divisional applications, continuation, and
continuation in part
 Extending life of an invention
 Joint IPR
 IPR Leveraging
 IPR Litigation as a strategy


Beware !!!!

Seek usage clearance


7. STRATEGIC ELEMENTS Cont...
Institutional Imperatives
 Institutional IPR Policy
 Integrating IPR into business strategy & project
management
 Effective Use of IPR information
 Identifying areas of possible infringements
 Licensing strategy
 Policing of institutional IP assets
 Litigation strategy
 IPR audit
 Effective utilisation of International Conventions.

8. INTERNATIONAL FRAMEWORK
 Paris Convention 1883- Industrial Property
 Berne Convention 1886- Copyright
 BIRPI was based on Berne , Switzerland with a staff of
seven
 Madrid Agreement is one of the special arrangement
created to standardize the provisions related to
Trademarks, approximately thirty nations , the USA not
being one of them are party to Madrid Agreement
 The agreement was completed at the Madrid revision
conference of the Paris convention in 1890, and later
revised at Stockholm in 1967.
 (Paris Convention + Berne Convention) Merged in 1893 =
United International Bureau for the Protection of
Intellectual Property ( BIRPI)= WIPO in 1970


 1974 WIPO became a specialized agency of the
United Nations system of organisations, with a
mandate to administer Intellectual Property matters
recognised by the member states of the UN.
 Today all international applications go to the WIPO
which forwards the applications to the designated
countries for examination persuant to national law.


 The agreements of the WTO system encompasses
trade in goods and services.
 other areas include Agreements relating to protection
of IP and dispute settlement
 The Trade Related Intellectual Property subjects (
TRIPS Agreements) sets out inter alia, the legal regime
governing Patents, Trade marks, Industrial Designs,
Copyright, Computer Programmes, Micro Organisms,
and Micro Biological Processes.


The IPR regime is managed by many conventions
and agreements, in the world and the TRIPS
agreements is the last one in the series of
agreement. They are
1. Paris Convention for the protection of Industrial Property, 1983
( revised in 1967 and 1979
2. Berne Convention for the protection of Literary and Artistic
works, 1886 ( last revised in 1971)
3. Madrid Agreement, 1891
4. Universal Copyright convention 1952
5. Lisbon Agreement, 1891
6. Rome convention 1961
7. Convention establishing the WIPO, 1967
8. Geneva Convention
9. Treaty on Intellectual Property in respect of Integrated circuits,
1989 and
10. The TRIPs Agreement 1995.

9. National Regime
1. Patent Amendment Act 2005
2. Trademarks Act, 1999
3. Design Act 2000
4. Copyright ( Amendment) Act, 1999
5. Protection of Plant Varieties and Farmers Rights Act,
2001
6. Geographical Indications of Goods ( Registration and
Protection) Act, 1999
7. Biological Diversity Act 2002
8. Semiconductor Integrated Circuits Layout Design Act
2000


10. Recent WIPO Case
 Mahindra & Mahindra v. Zach Segal, www.wipo.int,
August, 12 , 2009.


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