WHAT IS INTELLECTUAL PROPERTY ?

Intellectual property (IP) refers to creations of the mind, such as

inventions, literary and artistic works, designs, and symbols,
names and images used in commerce. IP is protected in law by,
for example, patents, copyright and trademarks, which enable
people to earn recognition or financial benefit from what they
invent or create.IP is a broad categorical description of a set of
intangible assets that are owned by a company or individual and
legally protected from outside use or implementation without
consent. It can consist of many types of assets, including
trademarks, patents, copyrights, and trade secrets.

WHAT ARE INTELLECTUAL PROPERTY RIGHTS ?

Intellectual property rights (IPR) are legal privileges granted to

creators and inventors to protect their intangible assets. These
rights enable individuals or organizations to control the use of their
creations, ensuring they can benefit economically from their work.
IPR encompasses various forms of protection, including patents,
copyrights, trademarks, and trade secrets.

PATENTS:
 It provide exclusive rights to inventors for their inventions,
preventing others from making, using, or selling the invention
without permission.
 There are three main types of patents:
 Utility patents for new and useful processes, machines, or
compositions of matter.
 Design patents for the ornamental design of a functional item.
 Plant patents for new varieties of plants.

COPYRIGHTS:
 It protect original works of authorship, such as literature, music,
and art.
 The creator automatically holds the copyright upon creation,
but registration can enhance protection and legal recourse.

TRADEMARKS:
 Trademarks protect symbols, names, and slogans used to
identify goods or services.
 They help consumers distinguish between different products
and prevent confusion in the marketplace.
INDUSTRIAL DESIGN
It refers to the visual aspects of a product that cannot be protected
by a patent. It can be a surface or a three-dimensional design. It
should be non-functional in nature.

GEOGRAPHICAL INDICATION
Geographical Indications indicates the place from where a product
originates from. Such products have certain traits that can be
found in the products that originate from that particular
geographical location.

WHY PROTECT INTELLECTUAL PROPERTY ?

It is important in the face of the fact that it promotes competition

and development.IP rights provide a legal framework to prevent
others from exploiting your proprietary assets, maintaining your
market exclusivity, and protecting your competitive edge.Securing
patents, trademarks, and copyrights builds a strong IP portfolio
that enhances a company's valuation. This can attract investors,
open up new opportunities, and be a key factor in securing funding,
negotiating partnerships, and planning for a successful exit
strategy.By licensing your patents, trademarks, or copyrights to
others, you can generate a steady stream of royalties without
having to manufacture or sell products yourself. This is a smart
way to monetize your IP assets and expand your reach into new
markets.IP protection fosters an environment where ingenuity can
thrive, and visionaries can reap the rewards of their hard work.
Without the promise of exclusive rights to monetize and control
their creations, innovation would grind to a halt.If a competitor
violates your IP rights, you can exercise your right to file a court
case against the party attempting to benefit from your invention. If
found guilty, the court may award you financial compensation.
THE BERNE CONVENTION - It was first adopted in 1886 and has
been revised several times since then.The main purpose of the
convention is to provide a uniform system for protecting the rights
of authors of literary and artistic works across national borders.

National Treatment: Works originating in one of the member

countries must be given the same protection in each of the other
member countries as the works of its own nationals.
Automatic Protection: Copyright protection is granted
automatically upon creation of a work, without any formalities like
registration.
Independence of Protection: The enjoyment and exercise of
copyright is independent of the existence of protection in the
country of origin of the work.
Minimum Standards of Protection: The convention sets out the
minimum standards of protection that each member country must
provide.

Scope of Protection
 Literary works (novels, short stories, poems, plays)
 Musical works
 Artistic works (paintings, sculptures, photographs, architecture)
 Cinematographic works
 Maps and technical drawings
It grants authors exclusive rights, including the right to reproduce,
translate, adapt, publicly perform and communicate their works to
the public

The convention recognizes several exclusive rights for

authors, including:
 The right to reproduce the work
 The right to perform the work publicly
 The right to translate the work
 The right to adapt and arrange the work
Moral rights, which include the right to claim authorship and to
object to derogatory treatment of the work.

Duration of Protection
 For most works, the life of the author plus at least 50 years
after their death.
 For cinematographic works, 50 years after the work has been
made available to the public with the consent of the author, or,
 failing such an event within 50 years from the making of such a
work, 50 years after the making.
 For anonymous or pseudonymous works, 50 years after the
work has been lawfully made available to the public.

As of November 2022, the Berne Convention has been ratified by

181 out of 195 countries in the world. It has had a significant
impact on harmonizing copyright laws globally and enabling cross-
border protection of creative works.
THE PARIS CONVENTION - The Paris Convention for the
Protection of Industrial Property, adopted on March 20, 1883, is a
foundational international treaty that establishes a framework for
protecting various forms of industrial property.

Scope of Protection
 Patents: For inventions and utility models.
 Trademarks: Including service marks and trade names.
 Industrial Designs: Protecting the aesthetic aspects of
products.
 Geographical Indications: Indicating the source of goods.
 Repression of Unfair Competition: Protecting against
deceptive practices.

National Treatment: Each member country must provide the

same level of protection to nationals of other member countries as
it provides to its own nationals. This principle ensures that foreign
creators receive equal treatment under the law.

Right of Priority: The convention allows applicants who file for

protection in one member country to claim a right of priority when
applying in other member countries. This means they can file
subsequent applications within a specified timeframe (12 months
for patents and utility models, 6 months for trademarks and
industrial designs) and have those applications treated as if filed
on the same date as the first.

 Patents and trademarks operate independently in each country.

 Protection for industrial designs cannot be forfeited based on
non-manufacture in the country of protection.
 Trade names must be protected without the necessity of
registration.

The convention requires member countries to grant temporary

protection to patentable inventions, utility models, industrial
designs, and trademarks exhibited at official international
exhibitions. As of 2024, the convention has 180 contracting
member countries, making it one of the most widely adopted
treaties in the field of intellectual property. The convention is
administered by the World Intellectual Property Organization
(WIPO), which facilitates cooperation among member states.
The Paris Convention was a pioneering step in the international
protection of industrial property rights, setting the stage for
subsequent treaties and agreements. It has played a crucial role in
harmonizing IP laws globally, enabling creators and businesses to
safeguard their innovations and compete fairly in the international
marketplace.

UNIVERSAL COPYRIGHT CONVENTION

Adopted in 1952 under the auspices of UNESCO, the UCC was
designed to complement existing copyright agreements,
particularly the Berne Convention, and to provide a framework that
would be accessible to a broader range of countries, including
those with varying legal systems and levels of economic
development.

The UCC mandates that works from authors of member countries

must receive the same protection in other member countries as the
protection granted to domestic authors. This principle ensures non-
discriminatory treatment of foreign authors.

Copyright protection is granted automatically upon the creation of

a work without requiring formal registration or compliance with
additional formalities. However, a copyright notice must appear on
copies of the work. The UCC allows authors to claim a right of
priority when applying for copyright in other member states, similar
to the provisions in the Berne Convention. The convention
stipulates a minimum copyright term of the life of the author plus
25 years. For certain works, such as photographic works and
applied arts, the term is set at 10 years.

The UCC grants authors exclusive rights to translate their works

for a period of seven years, with provisions for compulsory
licensing under specific circumstances. The UCC was designed to
accommodate countries with different legal traditions and levels of
copyright protection, allowing for a more inclusive approach to
international copyright.

The Universal Copyright Convention serves as an important

international instrument for copyright protection, promoting fairness
and accessibility while recognizing the diverse legal landscapes of
its member countries. Its establishment has helped enhance the
protection of authors' rights globally, fostering the exchange of
cultural and artistic works across borders.
TRIPS - The Trade-Related Aspects of Intellectual Property Rights
(TRIPS) is a comprehensive international agreement that sets
minimum standards for the protection and enforcement of
intellectual property rights. It is administered by the World Trade
Organization (WTO) and is binding on all WTO member countries.

Scope of Protection:
 Copyrights and related rights
 Trademarks
 Geographical indications
 Industrial designs
 Patents
 Layout designs of integrated circuits
 Protection of undisclosed information (trade secrets)

TRIPS establishes minimum standards of IP protection that each

member country must provide. However, countries are free to
implement higher standards in their domestic laws. Member
countries must provide the same protection to nationals of other
member countries as they provide to their own nationals. Any
advantage, favor, privilege or immunity granted by a member
country to the nationals of any other country must be accorded
immediately and unconditionally to the nationals of all other
member countries.

TRIPS sets out detailed provisions on civil and administrative

procedures and remedies, provisional measures, border measures,
and criminal procedures. TRIPS is subject to the WTO's dispute
settlement procedures, which can lead to trade sanctions if a
country fails to comply with a ruling.

 Compulsory licensing: Allowing governments to license the

use of a patent-protected invention to a third party or
government agency without the consent of the patent owner.
 Parallel importation: Allowing the importation and resale of a
patented product from a country where it has been put on the
market at a lower price.
 Transition periods: Providing developing and least-developed
countries with additional time to implement TRIPS obligations.

TRIPS in a manner supportive of WTO members' right to protect

public health and promote access to medicines for all.
WIPO'S RELATIONSHIP WITH UNESCO - WIPO (World
Intellectual Property Organization) and UNESCO (United Nations
Educational, Scientific and Cultural Organization) are two separate
specialized agencies of the United Nations, but they have
collaborated on various initiatives related to intellectual property
and cultural heritage.

The Universal Copyright Convention: In 1952, UNESCO

adopted the Universal Copyright Convention (UCC), which aimed
to provide a more flexible framework for copyright protection
compared to the Berne Convention. WIPO has worked with
UNESCO to administer the UCC.

Protection of Cultural Heritage: WIPO and UNESCO have

collaborated on issues related to the protection of traditional
knowledge, traditional cultural expressions, and genetic resources.
They have organized joint workshops and conferences to address
these topics.

Intangible Cultural Heritage: UNESCO's 2003 Convention for the

Safeguarding of the Intangible Cultural Heritage recognizes the
importance of intellectual property rights in protecting traditional
cultural expressions. WIPO has provided technical assistance and
advice to UNESCO in this area.

Cooperation Agreement: In 1978, WIPO and UNESCO signed a

cooperation agreement to coordinate their activities and avoid
duplication of efforts. The agreement covers areas such as
copyright, neighboring rights, and the protection of folklore.

Joint Initiatives: WIPO and UNESCO have launched joint

initiatives, such as the World Book and Copyright Day, to raise
awareness about the importance of intellectual property rights in
the cultural and creative industries.

While WIPO focuses primarily on the protection of industrial

property rights (patents, trademarks, industrial designs) and
copyright, it has collaborated with UNESCO to address the
intersection between intellectual property and cultural heritage,
particularly in the areas of traditional knowledge and traditional
cultural expressions.
ASSIGNMENT AND LICENSING OF INTELLECTUAL
PROPERTY

Assignment of intellectual property (IP) refers to the process by

which the ownership of intellectual property rights is transferred
from one party (the assignor) to another (the assignee). This
transfer can involve various forms of IP, including patents,
copyrights, trademarks, and trade secrets.

Transfer of Ownership: An assignment agreement results in the

complete transfer of ownership rights, meaning the assignee gains
all rights to use, modify, and enforce the IP.

Types of Assignment Agreements:

 Copyright Assignment: Transfers ownership of creative
works, such as literature, music, and art.
 Patent Assignment: Transfers rights to inventions or
processes.
 Trademark Assignment: Transfers rights to use and enforce a
trademark.
 Trade Secret Assignment: Transfers ownership of
confidential business information.

Assignment agreements must be in writing and may need to be

registered with relevant authorities to be enforceable. This ensures
clarity of ownership and helps avoid disputes. Assignments can
provide financial returns through the sale of IP rights, enhance
business value, and facilitate the commercialization of innovations.
It is essential for the assignment agreement to clearly define the
scope of rights being transferred and any conditions or limitations
associated with the transfer.

Licensing is a legal agreement that allows one party (the licensee)

to use the intellectual property owned by another party (the
licensor) under specified conditions, without transferring ownership.

Permission to Use: Licensing grants the licensee the right to use

the IP while the licensor retains ownership. This can include rights
to manufacture, sell, or distribute products based on the licensed
IP.
Types of Licenses
 Exclusive License: The licensee has exclusive rights to use
the IP, and the licensor cannot grant similar rights to others.
 Non-Exclusive License: The licensor can grant similar rights
to multiple licensees.
 Sole License: Only one licensee has rights to the IP, but the
licensor retains the right to use it as well.

Licensing agreements often involve royalty payments, where the

licensee pays the licensor a fee based on sales or usage of the
licensed IP. Licensing agreements can be tailored to fit the needs
of both parties, allowing for various terms regarding duration,
territory, and scope of use. Licensing can help mitigate risks
associated with IP infringement, as the licensee is granted
permission to use the IP legally.

Feature Assignment Licensing

Ownership Yes No
Transfer

Rights All rights transferred to Specific rights granted

Granted assignee to licensee

Duration Permanent (unless Temporary (based on

specified otherwise) agreement terms)

Payment Usually a lump sum or Ongoing royalties or

one-time payment fees

Flexibility Less flexible after More flexible, can be

transfer tailored to needs

Assignment and licensing are two distinct methods of managing

intellectual property rights. Assignment involves the complete
transfer of ownership, while licensing allows for the use of IP while
retaining ownership. Both mechanisms are essential for
maximizing the value of intellectual property and facilitating its
commercialization.
WHAT IS A PATENT ?

A patent is a legal right granted by a government to an inventor,

providing the inventor with exclusive rights to make, use, sell, and
distribute an invention for a specified period, typically 20 years
from the filing date. In exchange for this exclusivity, the inventor
must publicly disclose the details of the invention, allowing others
to learn from it once the patent expires. Patents are a form of
intellectual property designed to encourage innovation by
protecting inventors' rights.

A patent grants the holder the exclusive right to exploit the

invention, preventing others from making, using, or selling the
patented invention without permission. Patents typically last for 20
years from the filing date, after which the invention enters the
public domain, allowing anyone to use it. Patents are territorial
rights, meaning they are only enforceable in the countries where
they are granted. Inventors must apply for patents in each
jurisdiction where they seek protection. The inventor must provide
a detailed description of the invention in the patent application,
enabling others skilled in the field to replicate the invention once
the patent expires.

Types of Patents
 Utility Patents: For new and useful processes, machines,
articles of manufacture, or compositions of matter.
 Design Patents: For new, original, and ornamental designs for
an article of manufacture.
 Plant Patents: For new varieties of plants that have been
asexually reproduced.

PATENTABILITY IN INDIA

In India, the criteria for patentability are governed by the Patents

Act, 1970, and its subsequent amendments.

 The invention must be new and not previously disclosed to the

public before the filing date.
 The invention must involve an inventive step, meaning it should
not be obvious to a person skilled in the relevant field.
 The invention must be capable of being used in some kind of
industry, demonstrating practical utility.
Certain categories are explicitly excluded from patentability,
including:
 Abstract ideas and theories
 Scientific principles
 Mathematical methods
 Aesthetic creations
 Schemes, rules, or methods for performing mental acts
 Computer programs per se
 Inventions that are contrary to public order or morality

In India, the patentability of an invention is determined by its

novelty, inventive step, and industrial applicability, while certain
categories are excluded from patent protection. Understanding the
features and requirements of patents is essential for inventors
seeking to safeguard their inventions and capitalize on their
innovations.

Importance of Limitations and Exceptions

 By allowing researchers to experiment with patented inventions,

these exceptions foster innovation and scientific progress.
 Compulsory licensing and regulatory exemptions ensure that
essential medicines are available to the public, particularly
during health crises.
 These provisions help balance the rights of patent holders with
the public's need for access to knowledge and products,
preventing monopolistic practices.
 Limitations like exhaustion of rights and compulsory licensing
promote competition in the market, benefiting consumers
through lower prices and increased availability of products.
 Once a patented product is sold by the patent holder or with
their consent, the patent rights are exhausted. This means the
patent holder cannot control the resale or further use of that
specific product.
 If a person was using a patented invention before the patent
was granted, they may continue to use it within their business,
provided that their use was in good faith.
COMPULSORY LICENSING AND PROTECTION OF NATIONAL
INTEREST

Compulsory licensing is a legal mechanism that allows a

government to permit a third party to produce a patented product
or use a patented process without the consent of the patent holder,
typically for the benefit of the public. It serves as an exception to
the general rule that intellectual property owners enjoy exclusive
rights over their inventions.

In India, compulsory licenses can be issued by the Controller

General of Patents, Designs and Trade Marks under Section 84(1)
of the Patents Act, 1970.

 The reasonable requirements of the public with respect to the

patented invention have not been satisfied.
 The patented invention is not available to the public at a
reasonably affordable price.
 The patented invention is not being worked in the territory of
India.

PROTECTION OF NATIONAL INTEREST

Compulsory licensing plays a crucial role in protecting national

interests, particularly in the context of public health and access to
essential medicines.

By allowing generic manufacturers to produce patented drugs,

compulsory licensing helps make medicines available at affordable
prices, especially for developing countries with limited resources.
Issuing compulsory licenses to local manufacturers can help
develop domestic pharmaceutical industries and reduce
dependence on imports, contributing to economic self-sufficiency.

Governments can invoke compulsory licensing during health crises,

such as the COVID-19 pandemic, to ensure access to life-saving
treatments and vaccines. Compulsory licensing seeks to balance
the rights of patent holders with the need to protect public welfare
and promote competition. It serves as a check against the misuse
of exclusive patent rights.