Title – IPR laws across various jurisdictions (a

comparative analysis)

By
Riya Singh (7th-semester BA. Llb (Hons.))
Maa Vaishno Devi Law College, Lucknow University

1. Abstract
The United States grants patents for software-related inventions, fostering innovation
in the tech industry and reflecting the country's leadership in technology and
innovation. In contrast, the European Union has stricter criteria for software patents,
requiring a focus on technical contributions and limiting patentability to prevent
overbroad claims. This approach aims to balance promoting innovation while
preventing monopolies on abstract ideas, ensuring a fair and competitive market.
2. Introduction
Intellectual property law (IPR) is the section of law that grants legal rights to the
intellectual creations of human minds. These intellectual creations may include
scientific inventions, literary works, artistic works, designs, symbols, etc.
The rights granted for intellectual property gives the freedom to creator of sharing
his/her findings and inventions with the rest of the world without caring that they
would eventually gain nothing from sharing it as the rest population will copy their
mind creation and his work will lose it’s worth hence promoting research and
development sector of various fields.
There are various categories of IPR. Some of them are as follows: -
 Patent – It provides protection to new inventions. It is a document given by
government, on request application, that give the inventor or the applicator
rights from the date of application to some specific years. The patent holder
is required to pay periodic renewal fee to the government.
  Copyright – It covers the artistic and literary works like poems, plays, novels,
paintings etc. It protects the original works of the artist. This right is usually
granted till the life of the artist and 70 years after it, it may also vary in
different cases.
 Trademark – It protects symbol, names and slogans used to identify different
products and services in the market. It indicates trade origin and the source
of trademark owner.it gives the licence owner of the trademark a right over
his product sold in the name of his trademark. He can grant a permission to
another person to use his trademark which is usually done with monetary
exchange.
 Trade secret – It grants rights over confidential business information. It may
include formulas, recipes, processes, designs, or a compilation of information
which provides the business with a competitive edge.
3. Historical Background of Intellectual Property Law
The concept of intellectual property can be traced back to ancient era where
civilizations granted artesian and craftsmen with certain writs over their creations
but the first evidence for the rights over intellectual property was given can be traced
back to 15th century which was granted after the invention of Gutenberg press. The
invention of press led to early forms of copyright protection, as government sought
to regulate the reproduction of books and manuscripts.
In the early 1800’s the idea of granting intellectual property rights became popular
among legislative bodies of different countries which led to it being discussed in the
Paris convention in 1883 bringing a global support and understanding to the topic.
Three years after the topic’s discussion in the Paris convention, in 1886 Berne
convention took place where intellectual property right came in written expression.
The first intellectual property filing service came in 1891 through an agreement
known as Madrid agreement. Further in 1893, two secretariats were set up to
combine the Paris and Berne convention which was name as United International
Bureaux for the Protection of Intellectual Property (BIRPI). BIRPI was and
organisation with a staff of seven based in Switzerland. Later BIRPI was renamed as
World Intellectual Property Organization (WIPO) in the year 1970, the headquarter of
which was in Geneva, Switzerland. In 1974, WIPO joined the United Nations (UN)
family of organizations and became a specialized agency in the intellectual property
rights.
4. Framework and working of WIPO
The world intellectual property organization (WIPO) is a specialized united nations
agency that promotes and safeguards the rights of intellectual property hance
providing the intellectual property owners a trustworthy environment for sharing
their ideas and innovations. It acts as a global forum for IPR services. It has 192
member countries with the motto “Innovate for better future”. Its main aim is to
promote intellectual property right worldwide and provide itself as a global forum for
the same as the innovation and ideas are not constrained to a nation’s boundary.
Some of the main functions of the World Intellectual Property rights includes –
 Promotion of intellectual property protection through various seminars,
campaigns, outreach programmes, publications, etc and keep different
nationals’ legislations in harmony.
 Administer the international treaties related to IPR.
 Implementation and administration of the matters and decisions taken in the
various international treaties on IPR.
 Providing arbitration and mediation services on the disputes related to IPR.
 Providing global platform for registering IPR through systems like PTC for
patents, the Madrid system for trademarks, the Hague system for industrial
design etc.
 Providing technical assistance in the development of the least developed
countries and strengthen their IP system.

5. Intellectual Property Law in the United States

The intellectual property rights in the United States includes trademarks, copyrights,
trade secrets, patents each governed by separate laws and regulations.
The patents are governed by the Patent Act of 1952, as amended by America Invent
Acts 2011 and administered by united states patent and trademark office (USTPO). It
protects utility patents which lasts for 20 years after filing, design patent which lasts
for 15 years from the date of filing and plant patents as well which usually lasts for 20
years from filing. The criteria of the patentability involve: -
 subject’s novelty which means that the subject should be new and not known
or used by others in the same field.
 It’s non-obviousness so that it’s something non-obvious to the people having
ordinary skills in the field.
 The subject must also be useful and not any useless random stuff
 The patent application must also disclose all the information that is there to
know about the information
The patent’s filing in United States is based on first-to-file rather than first-to-
invent as the process of finding the first to invent may be tedious and time taking.
These patents grant exclusive right to make, use, sell, and import the patent
inventions. In case of breach a patent can be enforced by their owners in US
federal courts.
The trademarks in US are governed by the Lanham Act (Trademark Act of 1946)
and administered by United States Patent and Trademarks Office (USPTO). To
qualify for trademark protection, a mark must meet several criteria. First and
foremost, it must be distinctive, serving as a unique identifier for the source of
goods or services. This distinctiveness ensures that consumers can easily
distinguish the trademarked products from those of other sources. Additionally,
for a trademark to be federally registered, it must be used in interstate
commerce, highlighting its active role in trade across state lines. Finally, a
trademark should not be generic or merely descriptive unless it has acquired
distinctiveness through extensive use. This ensures that the mark is unique
enough to warrant protection and does not simply describe the goods or services
it represents. The rights over trademark are given for a period of 10 years with
the possibility of infinite renewals after each 10-year period provided that the
mark has continued being in use.
Federal registration of a trademark in US offers significant benefits, including
nationwide protection and a legal presumption of the registrant's exclusive right
to use the mark. This broad protection helps prevent unauthorized use of the
trademark across the entire country. On the other hand, common law rights
emerge from the actual use of a trademark in commerce, even if the trademark is
not federally registered. These rights are more limited in scope, generally
extending only to the geographic area where the mark is used and recognized by
consumers.
The copyright in the United States is governed by the Copyright Act of 1976 and
administered by the United States Copyright Office. For a work to be eligible for
copyright protection, it must meet certain criteria. First, the work must be
original, meaning it must be independently created by the author and possess
some minimal degree of creativity. This does not require the work to be novel or
unique, but it must be the result of the author's own intellectual effort. Second,
the work must be fixed in a tangible medium of expression. This means that the
work must be captured in a medium from which it can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine or
device. This fixation ensures that the work is concrete enough to be protected
under copyright law.
Trade secrets in United States are governed by the Defend Trade Secrets Act
(DTSA) of 2016 at the federal level and individual states have adopted the
Uniform Trade Secret Act (UTSA). There is no formal administering body or
registration system for trade secrets, it is mainly protected through secrecy. To
qualify for trade secret protection in the US, certain criteria must be met. The
information in question can encompass formulas, practices, processes, designs,
instruments, patterns, or compilations of information. This information must hold
independent economic value due to its secrecy, meaning it is not generally
known or readily ascertainable by others who could derive economic benefit
from its disclosure or use. Furthermore, the owner of the information must make
reasonable efforts to maintain its secrecy, which can include measures such as
confidentiality agreements and security practices to prevent unauthorized access
or disclosure.
 One of the most important cases in US intellectual property law is Diamond v.
Chakrabarty, 447 U.S. 303 (1980). This landmark Supreme Court decision
significantly impacted patent law and set a precedent for the patentability of
genetically modified organisms.

6. Intellectual Property Law in the European Union

In European union the patents are governed by the European Patent Convention, the
unitary patent system as well as the national laws and administered by the European
Patent office. For an invention to be patentable, it must meet specific criteria. Firstly,
the invention must be novel, meaning it must be new and not part of the prior art,
which includes everything publicly known before the filing date of the patent
application. Secondly, the invention must involve an inventive step, indicating that it
is not obvious to a person skilled in the relevant field of technology. This ensures that
the invention represents a significant advancement over existing knowledge or
products. Lastly, the invention must have industrial applicability, meaning it must be
capable of being used or applied in some form of industry, ensuring practical utility
and functionality. The duration of patent in the European union lasts for a period of
20 years. The European Patent Office (EPO) offers a centralized process for patent
applications, simplifying the procedure for obtaining patent protection across
multiple countries. However, once a patent is granted, enforcement of patent rights
remains at the national level, requiring separate legal actions in each country where
the patent is in force. To address this, the upcoming Unified Patent Court (UPC) aims
to streamline the enforcement process by providing a unified legal framework for
patent disputes across member states, enhancing efficiency and reducing the
complexity of enforcing patent rights throughout Europe.
The copyrights in the European Union are governed by the European Union
Directives as well as the National Laws and administered by national offices. For a
work to be eligible for copyright protection in the European Union, it must meet
specific criteria. Firstly, the work must be original, representing the author's own
intellectual creation. Secondly, the work must be fixed in a tangible medium of
expression, meaning it must be captured in a form that can be perceived,
reproduced, or otherwise communicated. Copyright protection extends to a wide
range of works, including literary, artistic, and scientific creations such as books,
music, films, software, databases, and more. These criteria ensure that the work is
both unique to the creator and preserved in a concrete form, enabling it to be
protected under copyright law. The duration of copyright is the author’s lifetime plus
70 years.
Trade secrets in the European Union are governed by the Trade Secret Directive
which harmonizes the protection of trade secret among member states also the
trade secrets are administered by the national courts. To qualify for trade secret
protection, certain criteria must be met. Firstly, the information must be secret,
meaning it is not generally known or readily accessible to individuals who typically
deal with such information. Secondly, the information must have commercial value
specifically because it is kept secret; its confidentiality must provide a competitive
advantage in the marketplace. Lastly, the information must be subject to reasonable
measures taken by its owner to maintain its secrecy. These measures can include
implementing confidentiality agreements, securing physical and digital access to the
information, and training employees on the importance of maintaining
confidentiality. These criteria ensure that the information remains valuable and
protected under trade secret laws.
One landmark judgment on intellectual property rights (IPR) in the European Union is
the Infopaq International A/S v. Danske Dagblades Forening (C-5/08) case. This
judgment by the Court of Justice of the European Union (CJEU) has significant
implications for copyright law in the EU, particularly concerning the definition of
what constitutes a "reproduction" under EU law.

7. Intellectual Property Law in China

The patents in Chine are governed by the Patent law of The People’s Republic of
China which was enacted in 1984 and is administered by China National Intellectual
Property Administration. The patents in China are mainly categorized in 3 forms
which are Invention patents which lasts for 20 years from the filing date, Utility
model patents which lasts for 10 years from the filing date and design patents which
lasts for 15 years from the filing date. For an invention to be eligible for patentability
in China, it must meet specific criteria. Firstly, the invention must exhibit novelty,
meaning it must be new and not publicly disclosed anywhere in the world before the
filing date. Secondly, the invention must involve an inventive step, indicating that it is
not obvious to someone skilled in the relevant field. This ensures that the invention
represents a significant advancement over existing knowledge or products. Lastly, the
invention must have industrial applicability, meaning it must be capable of being
used in some form of industry, demonstrating practical utility and functionality.
These criteria collectively ensure that the invention is both innovative and useful,
qualifying it for patent protection. China operates on first to file system.
The trademarks in China are governed by the Trademark Law of the People’s Republic
of China and are administered by China national intellectual property administration.
To qualify for trademark protection in China, a mark must meet specific criteria.
Firstly, it must possess distinctiveness, meaning it should be capable of distinguishing
the goods or services of one enterprise from those of other enterprises. This
distinctiveness ensures that consumers can identify the source of the goods or
services. Secondly, the trademark must not be generic, descriptive, or misleading. It
should not merely describe the goods or services, as this would prevent it from
serving its primary function of indicating origin. These criteria ensure that the
trademark is both unique and effective in identifying and differentiating the products
or services it represents. The duration for protection of trademarks in 10 years from
the date of registration and can be renewed after this 10-year period without any
bar.
The copyright in China is governed by the Copyright Law of People’s Republic of
China which was enacted in the year 1990 and is administered by National
Copyright’s administration of China. To qualify for copyright protection, a work must
meet two essential criteria. Firstly, the work must exhibit originality, meaning it must
be independently created and possess a minimal degree of creativity. This ensures
that the work is the result of the creator's own efforts and has some degree of
artistic or intellectual input. Secondly, the work must be fixed in a tangible medium
of expression. This fixation requirement means that the work must be recorded or
otherwise captured in a way that makes it perceptible either directly or with the aid
of a machine or device. In essence, the work should be sufficiently concrete to be
perceived, reproduced, or otherwise communicated. These criteria ensure that only
works that are both original and sufficiently tangible receive copyright protection.
The duration of copyright protection in China is author’s life plus 50 years for a
known individual and for an author with anonymous or pseudonymous works it is 50
years from the date of publication.

8. Intellectual Property Law in India

The patents in India are governed by the Patent’s Act of 1970 and administered by
the Office of the controller general of Patents, Designs and Trademarks. There are
basically three types of patents which are Invention patents, Utility model patents
and design patents and all three of them are protected for a duration of 20 years
from the date of filing. To be eligible for a patent in India, an invention must meet
three key criteria. Firstly, it must demonstrate novelty, meaning it should be new and
not previously disclosed in the prior art. This ensures that the invention introduces
something truly original to the field. Secondly, the invention must involve an
inventive step, which means it must represent a significant advancement that is not
obvious to someone skilled in the relevant art. This criterion ensures that patents are
granted only for innovations that offer a meaningful and non-obvious improvement
over existing knowledge. Lastly, the invention must have industrial applicability,
meaning it should be capable of being used in some form of industry. This
requirement ensures that the invention has practical utility and can be effectively
applied in a real-world context. Together, these criteria help to ensure that patents
are granted for inventions that are truly innovative, non-obvious, and useful.
Trademarks in India are governed by the Trademark’s Act,1999 and administered by
The Office of the Controller General of Patents, Designs and Trademarks. They are
protected for a period of 10 years from the registration and can be renewed after this
time for further 10-year period indefinitely. For trademark protection in India, a mark
must be distinctive, meaning it should uniquely identify the source of goods or
services. Additionally, it must not be merely descriptive or generic, as these types of
marks do not qualify for protection. This ensures that trademarks are both unique
and capable of distinguishing a business's offerings from others.
The copyrights in India are governed by the copyright act,1957 and administered by
the copyright office. The duration for a copyright in the life of the author plus 60
years in case of known owners and for anonymous ones it is 60 tears from the date
of application. For copyright protection, a work must be original, meaning it must be an
independent creation of the author with some degree of creativity. Additionally, it must be
fixed in a tangible medium, meaning it should be recorded or captured in a way that makes it
perceptible.

9. Comparative Analysis
 Similarities among IP laws of different countries

Patent protection generally covers inventions, including both products and

processes, across various jurisdictions. However, utility models, which are a
type of intellectual property protection for incremental innovations, are
recognized in China but not in the US or India. For an invention to be
patentable, it must meet several criteria. It must be novel, meaning it should
be new and not previously disclosed. Additionally, the invention must involve
an inventive step, or non-obviousness, indicating that it offers a significant
advancement over existing knowledge. The invention must also have
industrial applicability, meaning it should be capable of practical use in
industry. Typically, patents are granted for a duration of 20 years from the
filing date in the US, EU, China, and India.
In trademark protection, all jurisdictions require that trademarks be
distinctive, meaning they must effectively identify the source of goods or
services. Each jurisdiction operates a registration system to formally recognize
and protect trademarks, although common law rights, such as those in the
US, may also offer protection. Additionally, special protection is afforded to
well-known trademarks in all jurisdictions, ensuring that these marks receive
enhanced safeguards to prevent unauthorized use and maintain their
reputation.
Copyright protection is automatically granted upon the creation of a work,
without the need for formal registration. To qualify for protection, the work
must be original and the result of the author's own intellectual effort. In the
event of infringement, all jurisdictions provide civil remedies, including
injunctions and damages, to address and rectify unauthorized use of the
work. This ensures that creators have legal recourse to protect their original
creations and seek compensation for any harm caused by infringement.
 Trade secrets are protected in all jurisdictions provided that the information
meets specific criteria: it must be secret, possess economic value, and be
subject to reasonable measures to maintain its secrecy. This ensures that
valuable, confidential information is safeguarded from unauthorized
disclosure and use. In cases of trade secret misappropriation, all jurisdictions
offer legal remedies, including injunctions and damages, to address and
rectify the unauthorized use of such information. This framework helps
ensure that businesses can protect their competitive advantages and seek
redress for any harm caused by the misappropriation of their trade secrets.
All jurisdictions offer civil remedies for intellectual property rights
infringement, which typically include injunctions and damages to address and
remedy unauthorized use. Additionally, mechanisms for administrative
enforcement of IP rights are available in all jurisdictions, allowing for the
resolution of disputes and enforcement actions outside the traditional court
system. These administrative processes help to ensure that intellectual
property rights are upheld and that infringement issues are addressed
efficiently.

 Differences in IP laws among the countries

Patent protection varies significantly across jurisdictions. China offers utility

model patents, which are not available in the US or India, while the EU has its
own system for utility models. In the US, protection for ornamental designs is
provided through design patents, whereas China and India use different
mechanisms with distinct scopes and durations for design protection.
Although a 20-year patent term is generally standard across the US, EU,
China, and India, recent considerations in India may extend specific patent
terms under certain conditions. These variations highlight the diverse
approaches to intellectual property protection globally.

Trademark protection also differs considerably between jurisdictions,

particularly in the basis for establishing rights. The US operates under a first-
to-use system, where trademark rights are determined by actual use in
commerce. In contrast, the EU, China, and India follow a first-to-file system,
making registration essential for obtaining and enforcing trademark rights.
Additionally, while all jurisdictions offer protection for well-known marks, the
criteria and enforcement mechanisms can vary, reflecting the different
standards and procedures for safeguarding trademarks.

Copyright duration and protection exhibit notable differences as well. In the

US, copyright lasts for the life of the author plus 70 years, while in the EU,
China, and India, it extends for the life of the author plus 50 years, with India
recently extending this term to 60 years. Regarding moral rights, the US
places less emphasis on these rights compared to the EU and China, which
 offer strong protection for authors' moral rights, including the right to
attribution and the integrity of their work. Although registration is not
mandatory for copyright protection, it provides significant advantages in
enforcement, especially in the US. In the EU, China, and India, registration is
less common but can still be beneficial for asserting and protecting copyright
claims.

Trade secret protection varies significantly in terms of legislation and

enforcement. In the US, the Defend Trade Secrets Act (DTSA) provides a
federal framework for protecting trade secrets, while China relies on the Anti-
Unfair Competition Law, which includes criminal penalties for trade secret
theft, enhancing its deterrent effect. In India, trade secret protection is
primarily governed by common law principles and specific provisions within
the Contract Act, with criminal enforcement being less common and typically
applied only under specific circumstances. These differences reflect the
diverse approaches to safeguarding trade secrets globally.

Enforcement and litigation of intellectual property rights are handled

differently across jurisdictions. The US and China have specialized IP courts
dedicated to resolving intellectual property disputes, while the EU relies on
the Court of Justice of the European Union (CJEU) to address issues related to
EU-wide IP laws. In India, specialized IP benches within high courts handle
such matters. Additionally, criminal enforcement mechanisms for IP violations
vary in strength and scope across jurisdictions. Some regions have robust
systems for criminal prosecution of IP infringements, while others may have
less comprehensive approaches, reflecting the diverse enforcement
landscapes globally.
10. Reason for the differences
There are various reasons for these differences some of them could be-
 Historical and cultural differences
Intellectual property laws have evolved differently across countries,
influenced by their historical development and legal traditions. For example,
the US's IP laws are shaped by a strong common law tradition, while many
European countries' IP frameworks are influenced by civil law traditions.
Cultural factors also play a significant role, as attitudes towards IP protection
and creativity can impact how laws are formulated and enforced. Some
cultures may value communal sharing of knowledge, whereas others
emphasize individual ownership and proprietary rights, reflecting diverse
perspectives on intellectual property.
For example - The patent systems in the United States and the European
Union reflect their respective legal traditions. The US patent system,
influenced by its common law tradition, places significant emphasis on
 litigation and judicial interpretation, which allows for a more dynamic and
evolving body of patent law. In contrast, the European Union follows a civil
law tradition with codified statutes, resulting in a more uniform and
predictable patent system across its member states. This difference highlights
the varying approaches to patent protection and enforcement in different
legal environments.
 Economic and Development considerations
Economic development and industry focus significantly influence intellectual
property laws. Developed nations with advanced economies often emphasize
stringent IP protections to foster innovation and attract investment, while
developing countries may balance IP protection with the need for affordable
access to technology and medicines. Additionally, the level of innovation and
dominant industries, such as pharmaceuticals or technology, can shape a
country's IP laws, with robust patent systems often in place to protect new
inventions in these sectors.
For example - India has adopted a flexible approach to pharmaceutical
patents, including compulsory licensing provisions, to ensure access to
affordable medicines, reflecting its economic and public health priorities as a
developing country. In contrast, the United States, with its advanced
pharmaceutical industry, provides robust patent protections to encourage
innovation and investment in drug development.
 Technological factors
Advancements in technological factors particularly in digital realm is one of
the main reasons for differences in IP laws as different countries adopt these
changes in different times and varying ways.
For example - The United States grants patents for software-related
inventions, fostering innovation in the tech industry and reflecting the
country's leadership in technology and innovation. In contrast, the European
Union has stricter criteria for software patents, requiring a focus on technical
contributions and limiting patentability to prevent overbroad claims. This
approach aims to balance promoting innovation while preventing monopolies
on abstract ideas, ensuring a fair and competitive market.
Similarly, there are many factors like Political and Social factors, economic
integration and trade relations, public and industry pressure etc. which
accounts for the differences in IP laws across various jurisdictions

11. Conclusion
The comparative analysis of intellectual property laws in the United States, European
Union, China, and India reveals both convergences and divergences in how these
regions protect and enforce IP rights. While there are common principles and
protections across all jurisdictions, such as the requirement for novelty in patents
and the protection of trademarks and copyrights, significant differences exist in areas
like the availability of utility model patents and the duration of certain IP protections.
 These differences can be attributed to various factors, including economic priorities,
legal traditions, and political considerations. Understanding these nuances is crucial
for multinational companies and policymakers aiming to navigate and harmonize IP
laws globally. Ultimately, fostering a balanced and robust IP regime worldwide can
promote innovation, economic growth, and international cooperation while
respecting the distinct legal and cultural landscapes of each region.

12. References
Legal Cases
1. Diamond v. Chakrabarty, 447 U.S. 303 (1980).
2. Infopaq International A/S v. Danske Dagblades Forening (C-5/08).
International Organizations
3. World Intellectual Property Organization (WIPO). "About WIPO." Available at: WIPO
Website
National IP Offices
4. United States Patent and Trademark Office (USPTO). "General Information
Concerning Patents." Available at: USPTO Website
5. European Patent Office (EPO). "Guide for Applicants: How to get a European Patent."
Available at: EPO Website
6. China National Intellectual Property Administration (CNIPA). "Patent Law of the
People's Republic of China." Available at: CNIPA Website
Books
7. Bainbridge, D. (2018). Intellectual Property. Pearson Education Limited.
8. Cornish, W. R., Llewelyn, D., & Aplin, T. (2013). Intellectual Property: Patents,
Copyright, Trade Marks and Allied Rights. Sweet & Maxwell.
9. Gervais, D. J. (2012). International Intellectual Property: A Handbook of
Contemporary Research. Edward Elgar Publishing.
10. Lemley, M. A. (Ed.). (2000). Intellectual Property Rights: Critical Concepts in Law.
Routledge.
Research Websites
11. IP Watchdog. "IP Watchdog: Patent, Trademark, Copyright News." Available at: IP
Watchdog Website
12. Stanford University Libraries. "IPR Resources." Available at: Stanford Libraries
Website
13. Harvard Law School. "Harvard Law School - Berkman Klein Center for Internet &
Society." Available at: Berkman Klein Center Website
14. European IPR Helpdesk. "European IPR Helpdesk." Available at: European IPR
Helpdesk Website
15. Manupatra. "Manupatra: Legal Research." Available at: Manupatra Website