patent system in india · paithani weaving geographical indications •an indication which...
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Patent system in India
O.PRASAD RAO
Deputy controller of Patents and Designs
PATENT OFFICE, CHENNAI.
Industrial IPR Laws administered by DIPP/ CGPDTM
The Trade Marks Act, 1999
The Patents Act, 1970
The Designs Act, 2000
The Geographical Indications of Goods (Registration & Protection) Act, 1999 (GI)
Controller General of Patents, Designs and
Trademarks
(CGPDTM)
IPR Laws in India
Biological Diversity Act, 2002
Ministry of Environment and Forests
The Copyright Act, 1957 The Semiconductor Integrated Circuits
Layout- Design Act, 2000
The Protection of Plant Varieties and Farmers’ Rights Act, 2001
Department of Agriculture and Cooperation
IPR Laws administered by other Ministries
Intellectual Property Offices, India
Trade Marks Registry
Mumbai(Head Office)
Delhi
Kolkata
Chennai
Ahmedabad
Geographical Indications
Registry
Chennai
Designs Wing
Kolkata
RGNIIPM(Trainingacademy)
Nagpur
Kolkata(Head Office)
Delhi
Chennai
Mumbai
Patent OfficeNational
Biodiversity Authority
Registrar of
CopyrightsSICLDR #PPVFRA*
DelhiDelhi Chennai Delhi
PROPERTY
TANGIBLE INTANGIBLE
MOVABLE IMMOVABLE
e.g. table, scooter. e.g. house, land
INTELLECTUAL
PROPERTY
INTELLECTUAL PROPERTY&
Intellectual Property Rights
Intellectual Property is that which results from the creations of
intellect in industrial, scientific, literary or artistic field.
Intellectual Property Rights are the exclusive rights granted to
the owner of the said property for its commercial exploitation subject
to the provisions of national laws and international agreements, with
a view to reward the intellectual creativity.
IPR can be assigned or licensed for financial benefits.
Substantive conditions for registration
• The design should be aesthetic i.e., should make an eye appealand are judged solely by the eye.
• Only the features of shape, configuration, pattern, ornament,composition of colour or line or a combination thereof appliedto any article whether two dimensional or three dimensional orin both forms by any industrial process.
• The design should be new or original.• The designs must not be dictated by functional or technicalfeatures.
• The design should not be contrary to public order or moralityor does not contain obscene or scandalous matter.
Pharmaceutical Product
8
Textile & Jewellery
9
Documents necessary for making application for design registration
• Application shall be filed on prescribed form(Form1) with prescribed fee of Rs.1000.
• Representation of the article, clearly showing all the features of the design by different views and stating names of the views below each view,in durable paper shall be filed in quadruplicate.The statement of novelty and disclaimer (if required ) in respect of mechanical action,trade mark,word,letter, numerals and similar design in other class shall be endorsed in each copy of the representation sheet, which should be signed and dated
• Power of attorney ( if necessary )• Priority documents (if claimed under paris convention
or WTO ).
Designs Filing fee:
• Applicant type
• Individual -------Rs.1000
• Small Firm-------Rs.2000
• Large Firm--------Rs.4000
Renewal of designs
• Individual -------Rs.2000
• Small Firm-------Rs.4000
• Large Firm-------Rs.8000
Term of registration of a Design
• Duration is ten years from the date of registration, but in case where claim to priority has been allowed, then duration is ten years from the priority date.
• This initial period is extendable by a further period of five years on an application made with the prescribed fee(Rs.2000).
• A trade mark is any sign which can distinguish the goods of one trader from those of another. Sign includes, words, logos, pictures, or a combination of these.
•To register a trade mark , the mark must be:-
•distinctive, and, not deceptive, or contrary to law or
morality, and, not identical or similar to any earlier marks for
the same or similar goods.
•A trade mark is used as a marketing tool so that customers
can recognize the product of a particular trader.
SONY OLYMPUS
Letters
Words
Names
Number
Expression
Logo
A trademark can be a word, expression, logo, letter, number, slogan, combination
of colors, sound, smell or a hologram.
Sound
Government fees for major Trade Mark Activities:
1.Where the applicant is an Individual / Startup/Small Enterprise --
rs.5,000 (physical) Rs.4,500 (online)
In all other cases (Note: Fee is for each class and for each mark )---rs.10,000 (physical) rs.9,000 (online)
Form-TM-A.2.To file a Notice of Opposition to oppose an application published
in the Trade Marks Journal (Form TM-O). Fees:Rs.2,500/-
3. For renewal of registration of a trademark under section 25 for
each class rs.10,000 (physical rs.9,000 (online) and the form is
TM-R.
PROCEDURE• AN APPLICATION WITH FEE• SIGNED BY AGENT OR APPLICANT HIMSELF• REPRESENTATION OF MARK APPLIED EITHER IN USE OR
PROPOSED TO BE USED.• BEFORE APPLYING IT IS ALWAYS BETTER TO CARRYOUT
SEARCH IN TRADEMARK REGISTRY(WEBSITE),• AFTER APPLICATION IS FILED, EXAMINATION OF MARK AND
EXAMINERS REPORT IS FURNISHED.• AFTER COMPLYING WITH OBJECTIONS THE MARK WILL BE
ACCEPTED AND ADVERTISED IN THE TRADEMARK JOURNAL.• IF NO OPPOSITIONS ARE FILED WITHIN four MONTHS, THE
MARK WILL BE REGISTERED.• RENEWAL HAS TO BE DONE ONCE IN TEN YEARS ON
PAYMENT OF REQUISITE FEE.
Copyright
WHAT IS COPYRIGHT ?
A Copyright is a protection offered to the
works created by the authors of literary,
dramatic, artistic, musical works, producers of
cinematographic films and sound recordings.
A Copyright protects the particular manner in which a work’s contents and
ideas are expressed.
It is a bundle of rights including, rights of reproduction,
communication to the public, adaptation and translation of the work.
Ideas , Facts , Titles and Slogans
cannot be Copyrighted
Copyright protection is available to writings, music,
sculptures, paintings, lectures, choreographic
works, maps, cinematographic works, technical
drawings, translations etc. Protection also extends
to multimedia productions.
The main criterion for the protection of a work
under copyright laws is that it should be original.
Procedure for Filling Copyright Application
Filing of Applications
Diary number in 2-3 weeks
Examination of Application in about 6 week’s time
Communication of objection(s)
Non-compliance of objection(s)
Abandoned
Removal of objection(s)
Re-examinationCompliance with objections within 30 days of receiving
the report
Accepted
Issue of certificate of registration
Rejected
ONLINE FILING PROCESS• Any individual who is an author or rightsowner or assignee or legal heir can fileapplication for copyright of a work either by e-filing facility or by speed post.
• With effect from August 01, 2014, the physicalCopyright Counter for filing copyrightapplications has been closed in order topopularize the online filing.
Term of Copyright - 60 years either from the death of the Author or 60 years from the date of publication.
Infringement of Copyright– Civil and Criminal remedies
No copyright in an Idea, themes & plots of historical or legendary facts
No copyright over news
• Remedies for Infringement• •Administrative(copyright board)
• •Civil Proceedings(starts from district court)
• •Criminal remedies
• Penalties and Punishments • •First offence –six months imprisonment and
Rs.50,000/-fine(Section 63)
• •Second offence –one year imprisonment and Rs.1,00,000/-fine(Section 63 A)
• •Maximum –three years imprisonment and Rs.2,00,000/-fine
Related Rights
RELATED AND MORAL RIGHTS
Related rights also termed as neighboringrights are the rights of persons ororganizations who add substantial creative,technical or organizational skill in the processof bringing a work available to public.
Protection is available to performing artists,producers of phonograms and broadcastingorganizations from unauthorized exploitation of theirrights resulted from the financial and organizationalresources and technical skills which they add to thecopyright protected work.
• An indication which identifies goods asagricultural, natural or manufactured.
• Originating or manufactured in the territory of acountry or a region or locality
• Where a given quality, reputation or othercharacteristic of such goods is essentiallyattributable to its Geographical origin.
• - Section 2(i) (e) of G.I. Act 1999.
Definition
• Agricultural
• Natural
• Goods of Handicrafts
• Industry• Manufactured goods
• Food Stuffs- Section (2) (1) (f) of G.I. Act 1999.
• Almost all kinds of goods are covered
• Manufactured goods include handicrafts and handlooms
The Goods includes for Registration
Any association of persons or producers or anyorganization or authority established by or under lawrepresenting the interest of producers of the concernedgoods
Who Can apply for Registration?
How to Apply? Application for registration of a GI should be in the
prescribed form (GI-1A to 1D). Accompanied by theprescribed fee – Rs.5000/- Per Class.
It must be made in triplicate along with three copies of astatement of case accompanied by five copies of AdditionalRepresentations, Three certified copies of Map, documentsin support of origin.
PLANT BREEDER’S RIGHT
This is the exclusive right of the breeder toauthorize sale, multiplication, importing ofthe plant variety which he develops.
The purpose of granting plant breeder’sprotection is to ensure the recovery of cost ofinvestments in terms of skill, labor, materialresources etc. which they put together inbreeding new varieties.
A new plant variety is eligible for protection ifit is new, distinct, uniform, stable andhave a satisfactory denomination.
Integrated Circuit Layout Designs
What is Layout Design?
Layout of transistors and other circuit elements, including lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit (IC).
IP Evolution
INTELLECT – PROPERTY – RIGHT
Idea Expression COPYRIGHT
Idea Innovation Invention PATENT
Idea Quality + Identity TRADEMARK
Idea Appearance DESIGN
Idea Keep Confidential
No Disclosure TRADE SECRETS
35
PATENT
A PROMINENT INTELLECTUAL PROPERTY RIGHT
PATENT IS AN AWARD FOR THE INVENTOR
AND REWARD FOR THE INVESTOR
PATENT
1) A Grant of Exclusive Legal right by
the Government to the applicant
2) For the Disclosed Invention
3) For a limited period
4) Which is enforced only in theCountry where patent is granted
Inventor or
AssigneeSatisfies
•Novelty
•Inventive Step
•Industrial Applicability Techno-Legal
Document
$
What is a Patent?
Patent system
Patent Protection
to the inventor
Disclosure of the
invention to IPO
Patentee’s interest Public interest
Explanation 2
• Limited period of time- 20 years from the date of application.
• After expiry- patent comes into public domain.
• Condition: Full disclosure of the invention by the applicant.
• Must teach others how to make and use the invention
• Must disclose the best way of making and using the invention.
Geographic reach?
• Patent rights are limited territorially.
An Indian patent is limited to territory of India.
An Indian patent cannot be enforced outside India.
Field of Invention
Invention can take place in ANY field,
Electronics
Computer applications
Communications
Chemistry
Biotechnology
Nanotechnology
Ayurveda & Siddha
Invention can occur from “Safety pin to Satellite”
OBJECTIVES OF GRANTING PATENT
• As a monetary reward for revealing technological innovation
• To provide improved technology at affordable cost to public with return of investments made for the development
• To promote the ‘invent around’ concept on an article.
• To facilitate technical advancement and economic growth to a country resulting in cheaper and better products and high life standards.
• To encourage the commercial exploitation of the invention to its fullest extent.
ADVANTAGES OF PATENT
• Avoids Duplication of Research
• Keeps Abreast With Latest Development In Different Fields of Technology
• Helps Industry To Improve Existing Technology To Produce Cheaper & Better Product
• Serves As An Indicator Of Achievements In R&D Institutions And Ability of Individual Researcher.
PRECAUTIONS AND STEPS FOR APPLICANTS BEFORE APPLYING PATENT
• DON’T USE INVENTION IN PUBLIC FOR COMMERCIAL USEBEFORE GRANT OF PATENT
• NO OBJECTION FOR R&D AND EXPERIMENTAL WORKS
• ADVISABLE – TO FILE AS SOON AS IDEA GETS A SHAPE
• ONCE IDEA STRIKES APPLY WITH PROVISIONALSPECIFICATION - WITHIN 12 MONTHS FILE COMPLETESPECIFICATION- MAINTAIN PRIORITY DATE
• CONDUCT NOVELTY SEARCH - CONFIRM – INVENTION
Can I file abroad?
• No person resident in India can first file his applicationoutside India.
• There are two options to file outside India by Indianresidents:
– file the application for patent first in India and waitfor six weeks and thereafter file the applicationoutside India;
or– obtain prior permission for filing an application to
patent first outside India.
Patent Applications
1. Ordinary application
(i) Provisional specification
(ii) Complete specification
2.Convention application
3. PCT International Phase Application
4. PCT National Phase Application
5. Patent of Addition : Improvements / Modifications
6. Divisional Application : Separated from main application
Priority Starts with the date of filing of main application.
Term of Divisional, Addition Application: Expires with the main patent
Scope of Patentability Under The Patents Act
What is an Invention?
Sec.2(1)(J)
“Invention” means a new product orprocess involving an inventive step andcapable of industrial application
Patentable subject matter
Invention must
relate to a Process or Product or both
be new (Novel)
involve an inventive step
be capable of industrial application
not fall under Sections 3 and 4
“NEW”MEANS
Invention must not be
Published in India or elsewhere.
In prior public knowledge or prior public
use within India.
Claimed in claims in any specification in
India
Inventive stepA feature of an invention that
involves technical advance as compared to theexisting knowledge or
has economic significance or both and
makes the invention not obvious to a personskilled in the art“Would a person with ordinary skills have thought ofthe alleged invention?”. If the answer is “No”, then theinvention is non-obvious.
Industrial applicationmeans
Invention is capable of being made or
used in any kind of industry
WHAT ARE NOT PATENTABLE?
NON PATENTABLE INVENTIONS
Section 3(a)• Frivolous inventions
• Inventions contrary to well established natural laws
• Examples Merely making in one piece, articles
previously made in two or more pieces is frivolous.
A machine alleged to give output without any input.
NON PATENTABLE INVENTIONS
Section 3(b)
Commercial exploitation or primary use of inventions, which could be
Contrary to public order or Morality
Examples– Device or method for committing theft /
burglary.
– Human cloning
NON PATENTABLE INVENTIONS
Section 3(b) contd…
Or which
Causes serious Prejudice to health human, animal, plant life or to the environment
Examples Method or device for adulteration of food.
Method or device for mass destruction of plants or animals.
NON PATENTABLE INVENTIONS
Section 3 ( c )• Mere Discovery of a Scientific Principle or
• formulation of an Abstract Theory or
• discovery of any living thing or
• discovery of non–living substance occurring innature
ExamplesNewton’s law.
Darwin’s theory.
Discovery of an animal.
Discovery of natural gas or a mineral.
NON PATENTABLE INVENTIONS
Section 3 ( d )The mere discovery of a new form of a known
substance which does not result in the enhancement of the known efficacy of that substance
or the mere discovery of any new property or new use for a known substance
or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
NON PATENTABLE INVENTIONS
II. New use for a known substance is also not patentable; it means 2nd or 3rd use for a known substance cannot be allowed.
III. Mere use of a known process, machine or apparatus is not patentable unless such known process results in a new product or employs at least one new reactant.
e.g: Use of a food-packing machine for packing talcum powder.
NON PATENTABLE INVENTIONS
Section 3(e)Substance obtained by mere admixture resulting only inthe aggregation of the properties of the components thereof or aprocess for producing such substance
Examples Combiflam [Paracetamol (Antipyretic) + Brufen (analgesic)]
Solution of sugar and color additives in water to form a softdrink
However,A mixture resulting into synergistic properties ofmixture of ingredients however, may be patentable -Soap, Detergents, lubricants etc
NON PATENTABLE INVENTIONS
Section 3 ( f )Mere arrangement or re-arrangement orduplication of known devices, eachfunctioning independently of oneanother in a known way
ExamplesA Bucket fitted with torch,
An Umbrella with fan
Section 3(h)Method of Agriculture or Horticulture
ExamplesCultivation of algae , mushrooms
Preparation of an improved soil
However,Agricultural Equipments are patentable
NON PATENTABLE INVENTIONS
Section 3(i)Any process for medicinal, surgical, curative, prophylactic,
diagnostic, therapeutic or other treatment of human beings ora similar treatment of animals to render them free of diseaseor to increase their economic value or that of their products
Examples Removal of cancer tumor Surgical processes Processes relating to therapy Method of vaccination, Blood transfusion
NON PATENTABLE INVENTIONS
NON PATENTABLE INVENTIONS
Section 3(j)Plants & animals in whole or any partthereof other than micro- organisms, butincluding seeds, varieties and species andessentially biological process forproduction or propagation of plants &animals
Section 3(k)* mathematical method or * business method or * algorithms or * computer programme per se
Examples– Computer program by itself or as a record on a
carrier
However – New calculating machine
– combination of hardware and software
is patentable
NON PATENTABLE INVENTIONS
Section 3(l)A literary, dramatic, musical or artistic work or any other aesthetic creation including cinematographic work and television productions
These fall under copyright protection
NON PATENTABLE INVENTIONS
Section 3(m)A mere scheme or rule or method of performing mental act or method of playing game
Examples•Scheme for learning a language •Method for solving a crossword puzzle, •Method of learning a language •Method of teaching /learning
However,•Novel apparatus for playing game is patentable.
NON PATENTABLE INVENTIONS
Section 3 (n)Presentation of information
ExamplesAny manner or method of expressing
information whether by
spoken words
Visual display
symbols
diagrams
Information recorded on a medium.
NON PATENTABLE INVENTIONS
Section 3 (o)
Topography(layout) of
integrated circuits.Examples
3D configuration of electronic circuits.
NON PATENTABLE INVENTIONS
Section 3 (p)
Traditional Knowledge or an aggregation or duplication of known properties of traditionally known component or components
Examples-Wound healing property of Turmeric.
-Insecticidal properties of neem.
NON PATENTABLE INVENTIONS
Section 4Inventions falling within Section 20(1) of theAtomic Energy Act, 1962 are not patentable
EffectInventions relating to compounds of Uranium, Beryllium,Thorium, Plutonium, Radium, Graphite, Lithium and more asnotified by Central Govt. from time to time.
Non Patentable inventions
INVENTIONS RELATED TO DEFENCE
• To be referred to Central Government (Sec. 35).
• Secrecy directions to be periodically reviewed (Sec 36).
US4490935• Spring action
• Actuated by pulling axially
Writing instrument with solar-powered electronic counting and liquid crystal display
• Pen on pressing
• Connects solar cell array with counter
• LCD connected to counter displays counts
Aqueous ballpoint pen refill
• Refill with plurality of colors
• Aqueous inks Ia and Ib with different colors
• Tip is spiral or horizontal
Writing apparatus with incorporated light 2002-04-04
• Light connected to battery – inside pen
• Same Push button for pen and light
Pen with a scented housing2004-02-12
• has a grip incorporated into the pen barrel
• Barrel with scent coating
• is useful as a promotional device
• Aroma of coffee
INTELLECTUAL PROPERTY
Constructional
features
Catalogue/Booklet Name/Logos
Working
Mechanism – PATENT
Shape - DESIGN
Name - TRADE MARK
Manual - COPY RIGHT
CELL PHONE
CAREER IN IPR
1) IPR Managers
2) Technology Transfer Experts
3) Patents Examiner/Trademark Examiner
4) Patent & trademark agents / attorneys
5) Patent search experts
ADDRESS
PATENT OFFICE ,
Intellectual Property Rights
Building,
GST Road, Guindy,
Chennai – 600 032.
Website: http://www.ipindia.nic.in
