Patents & Trademark Final

8/8/2019 Patents & Trademark Final

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Intellectual Property (IP)An intellectual (involving imagination and reason) is one who tries to use

his or her intelligence and analytical thinking in either his profession orpersonal pursuits. Product of the mind creativity is the Intellectual Property and Right to protect this property is the Intellectual Property Right .Refers to creations of the mind: inventions, literary and artistic works, andsymbols, names, images, and designs used in commerce.

Intellectual Property

Industrial Property Copyrights

Geographical Indications

of source

Trademarks DesignsPatents


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Importance of Intellectual Property(IP)

sets your business apart from competitorsbe sold or licensed, providing an importantrevenue streamoffer customers something new anddifferentform an essential part of your marketingor brandingbe used as security for loansEnsures the availability of the genuine andoriginal products


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- protection to an invention for the exclusive use of it byits inventor- legal recognition to the invention- enables its enforcement in the court of law- incentive for further development- public use

- huge source of information- source for further developmental work by third party- encourage fair trading- contribute to social and economic development

Importance of protecting Intellectual Property


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IPR Instruments

I Have an innovation how do I Protect it in the market ?


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Patents

It is a limited right gr anted by the stateto an invento r in respect of an invention toexclude any othe r pe rson f rom p racticin g the inventioni.e. manufactu r ing, usin g or selling thepatented p roduct o r f rom usin g the

patented p rocess , without due pe rmission.


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The need for Patent

Allows the inventor to exclude others frommaking, using or selling his or her inventionduring the life of the patent.

It encourages RESEARCHInduces an inventor to disclose his inventionsinstead of keeping them as secret.It encourages establishment of new industries

and thereby rising new companies. For e.g.,instant photography and the PolaroidCorporation.


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Types Of Patents

U tility Patents - new, useful, or improved processes, machines,apparatuses, articles of manufacture, or compositions of matter Design Patents - new, original, and ornamental designs for an

article of manufacturePlant Patents - inventions, discoveries, or asexuallyreproduced distinct and new varieties of plants; includingcultivated sports, mutants, hybrids, newly found seedlings, andliving organisms


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W hat cannot be patented?

A n idea: inventions must be reducible to practice

Laws of nature/naturally occurring articles

Business forms and other printed matter (notassociated with some hardware)Scientific principles in abstract (withouthardware)


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Beginning1832 with the letter from Lord William Bentinck, Governor General (GG)to the Advocate General of India (AG) to have separate legislation for eachinvention.The Act VI of 1856 on Protection of Inventions in India enacted on 28 February 1856 was based on the British Patent Law of 1852 to encourageinventions and secure the knowledge of the invention from being lost.

Based on the Ayyangar Committee recommendations (appointed in 1957 ), aPatents Bill introduced on 21 September 1965 lapsed in Rajya Sabha. But arevised introduced in 1967 was finally passed in 1970 .

F eatures of the 1970 ACT:N o product patent for chemicals, food and medicineN o patents for agriculture and horticulture productsCompulsory licencesPre-grant opposition procedurePatents to be worked in India.


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Patents in India

The Patent system in India is governed by thePatents A ct, 1970 (No 39 of 1970) & ThePatents Rules 1972, effective from A pril20,1972. Subsequently The Patents A ct, 1970is amended effective from January 1, 1995 &The Patents Rules, 1972 is amended effective

from June 2, 1999.


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Legal aspect of IPR in India

1. The Patents A ct 1970 A ccording to the Indian Patents A ct, 1970, invention means anything new and

useful patent grants the exclusive right to the inventor to create his invention for

commercial gain for a given period of time Salient features

a. patent law is to encourage scientific research, new technology andindustrial progress.

b. a patent is granted only for an invention which must have novelty andutility.

c. must produce a new result, or a new article or a better or cheaper articlethan before.


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Safeguards in the Patent Law

C ompulsory licences to ensure availability of drugs atreasonable pricesBolar Provision for early manufacture of genericsParallel, import to check prices.Provision to deal with public health emergency.Revocation of patent in public interest and also on securityconsiderations.Provisions to prevent grant of patents based on frivolous or

trivial inventions.Provisions to prevent misappropriation of Genetic Resourcesand Traditional Knowledge.


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Patent Grant ProcedurePatent Grant Procedure

F iling of patent application

Publication after 18 months

Pre Grant Opposition /Representation by any person.

Request for examination

Examination: Grant or Refusal

Publication of Grant of patent

Post Grant Opposition to grant of patent(Constitution of Opposition Board)

Early Publication

Decision By Controller


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India's membership of International Treatiesgoverning Patents

India is member of the following treaties governing patents:Convention establishing World Intellectual Property Organization (WIPO)Trips A greement under the World Trade Organization.Paris Convention for the protection of Industrial Property with effect fromDec. 7, 1998.Patent Cooperation Treaty (P CT ) with effective from Dec. 7, 1998.


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Patent Duration In IndiaThe term for patents is 20 years from the date of filing of the applicationfor the patent. It is the responsibility of the patentee to maintain an issuedpatent by paying the annuities until the patent expires. A fter 20 yearsterm the invention claimed in the patent falls into the public domain.

RestorationRestoration of a patent that lapses due to non-payment of renewal feescan be made within one year of lapse. However, certain limitations will beimposed on the rights of the patentee when the patent is restored.


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Trade Marks

A trade mark is a distinctive sign or indicator used by an individual, business organization,or other legal entity to identify that the

products or services to consumers with whichthe trademark appears originate from a uniquesource, and to distinguish its products or

services from those of other entities.


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INDIA TRADEM ARK LAW

The Indian law of trademarks is enshrined thenew Trade Marks A ct, 1999 came into forcewith effect from September 15, 2003. The oldTrade and Merchandise Marks A ct, 1958 wasrepealed at the same time. The newTrademarks A ct of 1999 is in line with the

WTO recommendations and is in conformitywith the TRIPS A greement to which India is asignatory.


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Features of New Trademarks A ct 1999

Under the new Trademarks A ct of 1999:

Registration of Service M arks allowed in addition to Trademarks for goods.

No separate application necessary for each category/class of goods or services; asingle application would do, however filing fee will be charged separately for eachclass of goods/services.The term of registration of trademark is ten years, subject to renewal thereafter.The system of maintaining registration of trademark in Part A and Part B withdifferent legal rights, dispensed away.Registration of trademarks which are imitations of well known trademarks notpermitted.

Registration of Collective M arks owned by associations allowed .Offences relating to trademark made cognizable.F iling Fees enhanced by more than 8 times.Extension of application of convention countries.


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THE TYPES OF TRADEM ARKS THATCAN BE REG ISTERED

Product trademarks : are those that are affixed to identify goodsService trademarks : are used to identify the services of an entity, such as thetrademark for a broadcasting service, retails outlet, etc. They are used inadvertising for services

Certification trademarks : are those that are capable of distinguishing the goods orservices in connection with which it is used in the course of trade and which arecertified by the proprietor with regard to their origin, material, the method of manufacture, the quality or other specific features

Collective trademarks : are registered in the name of groups, associations or otherorganizations for the use of members of the group in their commercial activities toindicate their membership of the group.


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LEGAL REQU IREME NTS FOR REG ISTRATION OFTRADEM ARK IN INDIA

The selected mark should be capable of being representedgraphically (that is in the paper form).It should be capable of distinguishing the goods or services of

one undertaking from those of others.It should be used or proposed to be used mark in relation togoods or services for the purpose of indicating or so as toindicate a connection in the course of trade between thegoods or services and some person have the right to use themark with or without identity of that person.


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DURATION OF A TRADEM ARK IN INDIA?

Term of registration of a trademark is tenyears, which may be renewed for a furtherperiod of ten years on payment of prescribedrenewal fees.Non-user of a registered trademark for acontinuous period of five years is a ground forcancellation of registration of such trademarkat the behest of any aggrieved party.


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TVSwins against Bajaj

Bajaj Auto Limited dragged rival TVS Motor Company to

court for infringing upon intellectual property rights of its

patented digital twin spark ignition (DTSi) technology.

Bajaj : There is a strong case of infringement of intellectual property rights. T he

purpose (use of twin spark ignition for enhanced performance and better mileage)with which they are using the technology, making use of the same size of engine withthe identical construction, overlaps with our design and that is why we are taking alegal actionTVS : T he combustion process of TV S Motor C ompany was not exclusively based

on the twin plug operation but was based on the three valve configuration patentedby AV L GMBH of A ustria licensed to TV S Motor Company to use its technology.M adras high court (20 M ay 2009): Merely because prima facie Bajaj A uto Limited washaving a valid patent that by itself would not mean that Bajaj A uto had made out astrong prima facie case of infringement against the TV S Motor Company

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Patents & Trademark Final