Intellectual
property plays an important role in an increasingly broad range of
areas, ranging from the Internet to health
care to nearly all aspects of science and technology and literature
and the arts. Understanding the role of intellectual property in
these areas many of them still emerging often requires significant
new research and study. To promote informed discussion of the
intellectual property, education and awareness in this field is
important.
Today,
possession of land, labour and capital are just not enough for a
country to succeed. Creativity and innovation are the new drivers
of the world economy. The policies adopted by a country shall
determine the nations well being and further as to how it is
developing the trapped intellectual capital. An effective
intellectual property system is the foundation of such a strategy.
Within knowledge-based, innovation-driven economies, the
intellectual property system is a dynamic tool for wealth creation
providing an incentive for enterprises and individuals to create
and innovate; a fertile setting for the development of, and trade
in, intellectual assets; and a stable environment for domestic and
foreign investment.
Regarding the laws governing the IPR for Indian
companies:
Agreement of Trade Related Intellectual Property Rights -
better known as TRIP's- to which India is a signatory, is an
integral
part of WTO and it has an enormous impact on Indian business and
trade partnerships. Accordingly, India has complied its obligations
by amending the Indian Patents Act 1970(based on the Ayyangar
Report of 1959) twice, once in 1999 and later again last year and
now the third and the final amendment is expected to be done by
2005. In the last few years, India has enacted fully TRIPs
compliant Trademarks Act, Copyright Act, Designs Registration Act
and such other Acts related to fields of IPR.
However, though
most acts have been TRIPs compliant, in the Patents Acts there are
areas where substantive or procedural amendments could be
considered for complying with the TRIPs. While doing so changes
maybe required, specially keeping view the Indian Companies, by
giving protection under the Patents Acts to business methods
qualifying as technology, which at present is not patentable.
Business methods/models or computer programme comprising only of
mathematical or scientific
principles are not patentable under the present Act.
Computer
programmes qualify as expressions and can be protected under the
copyright law, however in certain sectors the need is being felt
for getting a patent protection for certain software in addition to
copyright. Copyright protects the coded expressions of software,
while patent protection can protect the qualifying features of the
software such as its sequence, structure and organization or its
functional elements. On the other, a trademark is a brand name, it
identifies the product and its origin, guarantees the quality,
advertises the product and creates an image for the
product.
How Indian
companies can avoid falling into trap over misuse of Trademarks and
Patents ie Protection of IPR: One has to be extremely cautious
while selecting a good brand name, which is to the extent possible
free from potential litigation in future. Good brand names must be
easy to remember, easy to pronounce, easy to spell and must be
legible, short and appealing to the naked eye and ear and most
importantly must be distinctive.
While using a
brand name it is not necessary to register with the appropriate
Trademarks Office, but it is definitely advantageous to do so as in
the event of any dispute over the brand name all that is required
to establish is the right to the monopoly of the brand, which is
the certificate of registration. Once the brand name is registered,
it is as valuable as your fixed assets. It can be assigned to any
other party for a consideration and you may even grant a license to
the use of the brand by others.
Patents on the
other hand are IP created by employees in the course of their
employment, but when it comes to the owing of the right to the IP
created is on the facts and circumstances of a particular
employer-employee relationship. Many Indian Companies have framed
an IPR Policy to this effect, but in absence of any such policy the
clarity of ownership is again a question mark. To avoid disputes
with employees the Companies need to follow a few golden rules:
Seek legal advice- It is essential to get skilled advice before
entering into any agreement with the employees. Documentation and
maintenance of secrecy is considered as prime issues.
Adopt internal
policies and regulations or guidelines on employee inventions- Such
policies and regulations should contain
provisions on the categories of inventions which fall within the
field of the employers business, the employee inventors obligation
to notify the employer of inventions, the employers procedures for
handling such notifications, confidentiality requirements and
patent prosecution, remuneration/royalty for the inventor,
etc.
IP Licensing-
Another way by which Indian Companies can benefit monetarily to a
large extent is by IP licensing. Licensing is
the sharing or the renting of IP through a legally binding contract
that specifies certain conditions with another company in exchange
for the payment of royalties or may involve a sharing of IP by
cross licensing in which both parties have IP and exchange it, here
there is no financial exchange between the parties.
The strategy of
licensing IP is also perhaps the best way for all Indian companies
to walk the middle road between services and products specially
software. IP can also act as a competitive barrier to stop other
companies from targeting your niche domain. Further, the same IP
can also be used to provide services in a faster manner, though
commercialization and marketing remains the key issue for an
IP.
Importance of Intellectual Property
Intellectual property protection is the key factor for economic
growth and advancement in the high technology sector. They are good
for business, benefit the public at large and act as catalysts for
technical progress. Whether IPRs are a good or bad
thing, the developed world has come to an accommodation with them
over a long period. Even if their disadvantages sometimes outweigh
their advantages, by and large the developed world has the national
economic strength and established legal mechanisms to overcome the
problems so caused. Insofar as their benefits outweigh their
disadvantages, the developed world has the wealth and
infrastructure to take advantage of the opportunities provided. It
is likely that neither of these holds true for developing and least
developed countries. (Extracts from Report on Commission on IPR
London September 2002).
Why
care about IPR?
Patents benefit none other than the owner of the IP and add value
to all industrial as well as business concerns and laboratory
discoveries and in doing so provide incentives for private sector
investment into their development. Anyone in the above business
should have an independent Research and development (R&D)
center. Offering free R&D and processes in over enthusiasm must
be avoided.
Globalization
and the rapid proliferation of technology have elevated the
importance of intellectual property protection for small and medium
sized enterprises (SMEs). The intangible nature of intellectual
property and the worldwide inconsistency of standard practices
create challenges for those businesses wishing to protect their
inventions, brands, and business methods in foreign markets. The
three most common vehicles for protecting intellectual property are
patents, trademarks, and copyrights.
The
Biotechnology Industry Organization advocates a strong and
effective intellectual property system. Strong intellectual
property protection is essential to the success, and in some
instances to the survival, of the biotechnology companies in this
country. For these companies, the patent system serves to encourage
development of new medicines and diagnostics for treatment and
monitoring intractable diseases, and agricultural products to meet
global needs. While giving holistic interpretation to TRIPS
agreement public health should be the prime consideration rather
than merely protecting the interest of the companies.
In the era of
knowledge age or information age, the fundamental unit of most
products and services is information-- in one
or another form. Have you seen that n-number of websites, virtual
enterprises and virtual products? All these rest upon the
cornerstone of 'information': in digital or non-digital form.
These have become the top IPR issues, this Internet shall bring
several new IPR issues to the fore. In several cases such
information is of proprietary nature, hence, the investment in that
information product, knowledge product or the virtual product must
be protected to encourage other similar initiatives. With
increasing worldwide access to electronic distribution, the damage
caused by piracy to content producers may completely destroy the
value built in their intellectual property.
The same
context is valid in the case of companies who have earned consumer
recognition for their brand names and trade marks. A recognized
brand name or trade mark represents the goodwill that has been
built into the product or service. Consumers tend to associate the
recognized brand name or trade mark with certain characteristics
that are specific to that name or mark. Therefore, companies should
manage, protect and safeguard the investment in the related
intellectual
property rights. Not only this, they should be vigilant if anyone
else is misusing or causing infringement of this Intellectual
property.
That is the
crux of the intellectual property rights: to give credit where, and
when, it is due. With the emergence of the knowledge society and
virtual products, the issue of safeguarding the investment in the
information-based products has certainly gained high importance.
We, as consumers or producers in the information chain, cannot
afford to be ignorant about the intellectual property rights!! Thus
protection of IPR has definite (tangible) benefits, such as to
propagate innovative culture, profitability, market leadership and
helps creation of wealth for the individual and the nation. India
falling one among the developing countries have miles to go, as she
has a vulnerable collection of traditional, oral, folklore,
customary, agricultural, traditional medicinal like Ayurveda etc.
and besides not having much wealth and infrastructure, lack of
awareness of
IPRs among all stratas of people, is a major set back to a
developing country like India
Last update : 08-05-2007 05:40
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