Intellectual Property Rights (IPR) & Patenting 

Patents  Introduction

Define: 

IPR is a product of Mind like inventions, artistic works; symbols, names, images and designs used incommerce. Intellectual properties can also protected and  these are called Intellectual property Rights. 

IPRs are created to ensure protection against unfair trade policies.

Owners of IP are granted protection by state and /or country under varying conditions and periods of time and this protection includes the right to :

  • Defend their rights or property they have created
  • Prevent others taking advantage of their ingenuity.
  • Encourage their continuing innovativeness & creativity.
  • Assure the world a flow of useful, informative and intellectual works.
Protection of Intellectual Property:
Intellectual property is protected and governed by appropriate national
legislations .The national legislation specifically describes the inventions that
are the subject matter of protection & those which are excluded from
protection. 
With the growing recognition of IPR, the importance of worldwide forums on
IPs is realized. Companies, Universities, and Industries want to protect their
IPR internationally. In order to reach this goal, countries have signed numerous
agreements and treaties and developed organizations.

 World organizations,
GATT : General  Agreement on Tariffs and Trade.
TRIPS : Trade Related Aspects of Intellectual Property Rights.
WIPO  : International Union for Protection of New Plant Varieties.
WTO  : World Trade Organizations.

 GATT (General Agreement on Trade and Tariffs): 
was framed in 1948 & was meant to be a temporary arrangement to settle
amicably countries disputes GATT serves as a code of rules for International
trade & forum to discuss & find solutions to trade problems of member
countries. 8th round of GATT negotiation was held in l986 at Uruguay. The
discussions were started in 1986 at Uruguay, but successfully concluded on
December 15, 1993.

 The Negotiations were signed in the form of an accord on April 15, 1994 at
Marakesh, Morocco. By about 124 countries lead to formation of World Trade
Organization   (WT0) on January 1995.

 WTO is the rule-based body for all trade & trade related issues; it seeks to
reduce barriers to trade through mutually advantageous agreements.

It differs from GATT & other bodies that in,

 It covers all aspects associated with trade with binding rules for all members.
It has a dispute settlement board.
It has a built in agenda for review.

 WTO envisages a comprehensive scheme for protection of IPRs & establishment
of a legimate reward system for creative inputs of Inventors of Intellectual
property under broad category of Trade Related Intel.  Prop. Rights (TRIP). 


Types of IPS 

1) Patents.
2) Copyrights.
3) Trade secrets
4) Trademarks
5) Geographical Indications.
6) Designs.
7) Know hows.

1) Patent : Definition
Grant by sovereign or state to an inventor or to his Assignee, giving exclusive rights to make use, exercise & vend the inventions for a limited period in Exchange for disclosure in patent specification.
purpose of patent:
1 Giving legal monopoly y to the patentee (Claimer of patent) to reap economic benefits of his invention.
e.g.  patent claimed on Sildenatil by Glaxo.
Facilitating the improvements or alternative approaches to develop new ideas or land products as the scientific or technical knowledge is not kept secret. Every country has its own patent laws. E.g, US patent laws, Belgian law, French patent.

Patents are of Three types

A.Utility patents: Which relate to a new or improved machine, article of manufacture, a  composition of matter, or a process.
B.Design patents: Which relate to manufacturing of new, useful, and ornamental or aesthetic article.
Plant patents: Which relate to a new asexually reproducible variety of plant.

2) Copyright:
 These are legal rights granted to a work of authorship or creator e.g.,  Music, writing, dance, broadcasting etc.
 Industrial Design: These are eye appealing designs of useful articles (ornamental or aesthetic) despite of distinctive or functional necessity.
 e.g. shapes of teapot or chairs .
3) Trade Secret: A trade secret is information that: is not generally known to the public. It confers some sort of economic benefit on its holder Trade secrets are not protected by law in the same manner as trademarks or patents. Instead, trade secrets are protected under state laws.

4) Trademark: It is distinctive and deceptive sign to distinguish goods and services e. g., Star of Mercedes, logo of university, brand names. Following are symbols related to trademarks:
TM  (for an unregistered trade mark to promote or brand goods)
SM (for an unregistered service mark to promote or brand services)
 ® (for a registered trademark).
5)  Geographical Indication: It is indication and appellation of origin of goods and service e.g., made in India, Champagne. Now we will see more details on patents.

Patent

A patent is an intellectual property relating to inventions and is the grant of exclusive right, for limited period, provided by the government to the patentee (A claimer of the patent), in exchange of full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process producing that product. An invention must meet the following three criteria to be eligible for grant of patent:
(i)Novelty   (ii) Inventiveness (Non-obviousness)
(iii) Usefulness 

(i) Novelty: An invention will be considered novel, a) if it does not form the state of the art or has not been described orally and b) if it has not been published or not used before the date of filing the patent application
(ii) Inventiveness (Non-obviousness): The invention is not obvious to a person skilled in the art in the light of the prior publication/ knowledge / document.
(iii) Usefulness: An invention must possess industrial applicability for the grant of patent.

What can be patented?
Process
Machine
Article of manufacture
Composition of matter
Improvement of any of the above 

What cannot be patented?
Laws of nature
Physical phenomena
Just a abstract ideas
Literary, dramatic, musical, and artistic Works (these can be Copyright protected).
Inventions which are not useful (such as perpetual motion machines); or Inventions which are offensive to public morality.  Who may apply for patent?
* A patent may be applied by the name (s) of the actual inventor (s).
* For ordinary patent, any person residential to country, claiming to be first inventor.
* For patent of addition, applicant of original patent.
* For convention application, patent applicant.
* For PCT application same as of ordinary patent applicant. 


The Patent ACT 1970
The most significant act in the legislature of Protection of Intellectual Property Rights in India is The Patent act 1970 this came into force on 20th April 1972.
The major pre-requisites for patenting in India according to this act are:
1.Inventions must be new .
2.It should be new & non obvious with respect to prior art‘s.
3.It must be useful.
4.Not previously in use in Indian.

What is an Invention?

Sec.2(1)(J)
“Invention” means a new product or process involving an
inventive step and capable of industrial application and
Should not fall under Section Section 33 and 44.
NEW” MEANS – it should not …..
Published in India or elsewhere Neem as antibacterial.
In prior public knowledge or prior public use with in
India: Curcuma heals the wound
Claimed before in any specification in India 



Types of patent

1.Ordinary application
2.Convention application
3.Patent of addition
4.Divisional application
5.Patent Cooperation Treaty (PCT)
6.International application
7.PCT -National Phase application 


1. Ordinary application
The first application for patent filed in the patent office without claiming priority from any application or without any reference to any other application under process in the patent office is called an ordinary application.
2. Convention application
When an applicant files a patent application, claiming a priority date based on the same or substantially similar application filed in one or more of the convention countries, it is called a convention application. 


3. Patent of addition :
Patent of addition is an application made it a patent in respect of any improvement c modification of an invention described i disclosed in the complete specification already applied for or has a patent.
4. Divisional application :
A divisional application is one which has been "' divided” from an existing application. The applicant, at any time before the grant of a patent can file a further application, if he so desires or if an objection is raised by the examiner on the ground that the claims disclosed in the complete specification relates to more than one invention. 


5. PCT International application : The Patent Cooperation Treaty or PCT is an international agreement that allows unified patent filing applications in all of its contracting states. This application should be filed within 12 months of priority date in form PCT/RO/101. WIPO of Geneva forwards this application to respective countries patent offices. ISR (International Search Report), IPER (International Preliminary Examination Report which is optional) are conducted before entering national phase. 

7.PCT National application :
After 30 months from the filing date of the PCT-international application or from the earliest priority date of the application if a priority is claimed, the international phase ends and the international application enters in national and regional phase. However, there is nothing called as a ’world patent. 


Preparation of patent proposal
Following things must be included at the time of drafting patent application:
qTitle of the invention
q Field of the invention
q Background of the invention
q Objectives of the invention
q Summary of the invention
q Detailed description of the invention
q Brief description of the drawings if applicable
•Examples, Claims AND Abstract 

Following are the documents required for filing an application under  Patents Act,1970: (Patent Procedure divided following 4 Steps) 

Step 1. Application for the patent:  Under Indian Patents Act 1970, an applicant who claims to be the true and first inventor of an Invention, ‘the assignee or his legal assignee or the legal representative of the same can file an application, for the patent. If an assignee files an application, he has to furnish evidence of assignment of right to' apply for a patent in his favour before making such application. Here, application must be made in the name of true and first inventor. 

Filing of form under Section 7: 
Section 7 ensures that every application for a patent shall be for one invention only and shall be made in the prescribed form and filed in the patent office .It also says that the applications shall be accompanied by a provisional or a complete Specification.
Filing of specifications under section 9:
The Specification is a legal document, which contains detailed proceedings about the invention and rights of the patentee.’ There are two kinds of specifications.
 1) Provisional 2) Complete  specification 

1) Provisional Specification: The Provisional specification involves the nature of invention and the process involved in the proposed invention. This basically helps to establish the identity of the invention and registers the earliest authorship of an invention in the patent office.
2) Complete  specification:  The Complete specification is filed after the provisional specification,  the former is a more detailed document. To be more precise, a complete specification must be furnished with greater details and more accuracy. A complete specification may consist of identical description, which has been already furnished in provisional specification, thus two are permanent independent documents. 

Priority of Claims:
There will be a priority for each claim of complete specification.
Priority  date: 
There will be a priority date for each claim of complete specification. Where a complete specification is filed in pursuance of a single application accompanied by a provisional specification (or a specification which is treated as a provisional specification) and the claim 13 based on the matter disclosed m such Specification, the priority date of filing the relevant specification. 

Publication of the application:
The application of patent shall not be put forth in front of public for 18 months. The time period of 18 months shall be examined from the date of filing the patent application or the prior date, whichever is earlier. This publication shall always be notified in Official Gazette. The publication of application includes particulars of:
Date of application.
Number of application.
Name and address applicant identifying the application. 

Step 2.Examination of the application:
The patent application shall be examined on the request of the applicant in prescribed manner under law within 48 months from the date of filing the application. When the request for examination has been made in respect of the application, it shall be referred to an examiner by the Controlled  Patents.
Step 3. Opposition to the grant of patent:
Any person interested in opposition for grant of the patent may give a notice to the Controller within 4 months from the date of advertisement of acceptance of a complete specification under patent act. The Opponent can case his Opposition within the limit of Section 25 (he can not raise any other ground for Opposition except section 25). 

The grounds available for Opposition are stated briefly as:
Obtaining wrongfully
 Prior publication
 Prior claim in a concurrent application,
Prior public use or public knowledge in India,
 Obviousness and lack of inventive step,
Non-patentable invention,
 Insufficient description of the invention,
Failure to disclose information relating foreign applications,
If a convention application is not made within the prescribed time. 


Step.4: Grant and sealing of patent:
A request for sealing of a patent is to be made not later than the expiration of a period of 6 months from date of advertisement of the acceptance of complete specification. However, there are circumstances when after expiration of said period an extension is granted on request. Then lastly the Patent is granted. 

Indian Patent law categorized following as Non Patentable inventions;
 1. Method of agriculture & Horticulture
2. Plants & animals (others than micro organisms)
3. Analytical methods
4. Products made by chemical synthesis e.g.  foods & medicines
5. Genes, DNA sequences, Natural products derived products, Pharma  products  identical  to human proteins.
6. Inventions, which cause disruption of public order or morality and environmental damage.
 The act strictly states than No patent should be granted for Food, Medicines, & Drugs, as a product instead of which only process of manufacture are  patentable. The sections clearly excludes product patent Period of validity of patent is 5yrs,from date granting patent or 7 yrs from date of filling application for drugs & food substances. 


Existing IPR Loop Holes for Traditional Medicines
The innovations and creative expressions of indigenous and local communities are also intellectual properties like patents (of new plants, isolated drugs, their formulations), distinctive signs (trade-marks, collective marks, certification marks, and geographical indications) like traditional signs, symbols and terms associated can be trademarks or copyrights. Example: Sound recordings of aboriginal artists, carpets of Kazakhstan, pagadi of Pune, liquors of Vietnam etc. But following are the few loopholes which have raised IP question about this traditional knowledge yet again because they are ”traditional” they may not be fully protected by existing IP systems.      
Biopiracy:
 Patents for innovations in the field of traditional medicine are increasing but ”biopiracy” is a major problem. Following are few landmark examples of biopiracy.
1. Turmeric: The US Patent (No. 5,401,504) has been given to the healing properties of turmeric, known for centuries to Indians. In response to a challenge filed by an Indian research organization, the patent was over turned in 1997. This event is frequently billed as the first case of successfully reversing a biopiracy patent. 

2. Neem:
 In 1993, PJ. Margo Private Ltd. obtained a patent of neem biopesticides. But Indians had been using neem products in the same fashion for centuries, the European Patent Office revoked the patent in Europe,  but the US. patent remains valid. [Because in US, use of invention outside the U.S.  does not destroy novelty].
The fact is that most of the traditional knowledge is restricted to herbal healers in village areas or tribal families and handed down from generation to generation. Traditional knowledge is mostly not available in written form or if written then it is in local script which is difficult to interpret. 


Unauthorized or Inappropriate Use by Third Parties
Patents are often granted to parties who are traditionally not the owners of this knowledge, thereby, leading to conflict in trade interests of the parties involved. Profit made by the patent holders also does not flow back to the holders of traditional knowledge.
Biodiversity
Bio-resources are the sole property of sovereign States and that they have the freedom to use them as tradable commodities. Responsibility for conservation of these medicinal plants also remains undefined between patent holders and holders of traditional knowledge. Large-scale exploitation of these resources occurs due to profit maximization by patentee, thereby leading to the extinction of many species with medicinal value and many more becoming endangered.

New IPR Solutions for Traditional Medicines
The World Health Organization (WHO) estimates that 25 % of modern medicines are descended from plants first used traditionally. In 1978, WHO first recognized the relevance of traditional medicine as a source of primary health care. WIPO started to work on TK in 1998. The first step was to listen directly to TK holders, learning of the needs and expectations of some 3,000 representatives of TK-holding communities in sixty locations around the world. In late 2000, the WIPO Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established. Normative and capacity-building programs are underway at WIPO to develop balanced and appropriate legal and practical responses to these issues.