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Intellectual Property: A Comprehensive

Overview

What is Intellectual Property?

Intellectual Property (IP) is a special category of property created by the human
intellect in fields like arts, literature, science, and trade.

IP is intangible, meaning it is invisible and indivisible, unlike tangible

property like land or a house.

Intellectual Property Rights (IPR) are privileges granted to the creator or inventor of
IP, according to the laws, in exchange for revealing the creation or invention to the
public. These rights allow the inventor to use, sell, distribute, offer for sale, and
restrict others from using the invention without permission.

IP is divided into two main branches:

Copyrights and Related Rights: Creative expressions in literature and art, such
as books, music, films, and software.
Industrial Property Rights: Patents, trademarks, industrial designs, and
geographical indications.

The Role of IP in Economic and Cultural

Development
Creativity is vital for societal progress, and IPRs incentivize creators and innovators.
However, strict IPR practices can negatively impact society.

For example, compliance with the Trade-Related Aspects of Intellectual Property

Rights (TRIPS) Agreement has affected farmers who can't store seeds for the next
crop because multinational companies control seed prices.

To balance the interests of creators and the community, certain laws, exceptions, and
limitations are associated with IPR.

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Farmers’ Rights: The Protection of Plant Varieties and Farmers’ Rights

(PVP&FR) Act, 2001 gives farmers rights on seeds, including the ability to
save, use, share, exchange, or sell them to other farmers. It also protects them
from infringement accusations due to legal ignorance.
Copyright Exemptions: Using copyrighted material for education and religious
ceremonies is exempt from the Copyright Act.
Compulsory Licensing: A patent can be revoked for compulsory licensing by
the government during emergencies or natural calamities.
Societal Interest: Inventions not in the interest of society (e.g., human embryo
cloning or creating super microbial pathogens) are not granted IP rights.

India's rich Traditional Knowledge (TK) and genetic resources also need protection
under sometimes conflicting IPR policies.

Initiatives like ‗Make in India‘ and ‗Atmanirbhar Bharat‘ aim to benefit from these
resources, alongside accessible patent and trademark registration processes.

IP Governance Worldwide and in India

Each nation has dedicated agencies for IP guidelines, implementation, and
enforcement.

In India, the Department for Promotion of Industry & Internal Trade (DPIIT) under
the Ministry of Commerce and Industry governs all IP categories except the Plant
Variety and Farmers’ Rights Act. Organizations like TIFAC, NRDC, and CIPAM
promote the patent ecosystem.

The World Intellectual Property Organization (WIPO), established by the UN,

imparts knowledge about IP and governs international filing and registration through
conventions and treaties like the Paris Convention and the Patent Cooperation
Treaty (PCT).

IP as a Global Indicator of Innovation

IP, especially patents, is a key factor in assessing a nation's innovation index. Global
ranking organizations use IP as a parameter to grade a nation's Science, Technology,
and Innovation (STI) ecosystem.

For instance, the Scimago 2020 report ranked India 4th in "Research Publications"
but 50th in "Intellectual Property Rights."

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Origin and History of IP

Rudimentary IP practices existed around 500 BCE in Sybaris, Greece, where natives
were granted a year's protection for luxury improvements.

Practical IP governance began in medieval Europe. In 1623, Britain allowed guilds to

create and market innovations. This was replaced by the Statute of Monopolies,
granting original creators rights for 14 years. The Statute of Anne in 1710
strengthened copyrights by giving authors rights for work recreation and distribution,
which could be renewed for another 14 years.

By the 19th century, almost every country had IP legislation.

History of IP in India

Patents
The Indian patent system dates back to British rule. The first legislation was Act VI
of 1856, based on the British Patent Law of 1852, encouraging inventions of new
manufactures.

The rights were termed as Exclusive Privileges.

Amendments in 1859:

Exclusive privileges for useful inventions

Priority time increased from 6 to 12 months
Importers excluded from the inventor definition

The world’s first patent was granted in 1790 to Samuel Hopkins in USA for the
"making of pot ash and pearl ash by a new apparatus and process". In India, the first
patent was awarded in 1856 to George Alfred DePenning for his 'An Efficient Punkah
Pulling Machine'.

In 1872, the Act was renamed The Patterns and Designs Protection Act (Act XIII of
1872) to include 'Designs'. It was amended in 1883 (XVI of 1883) to protect
'Novelty'.

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In the early 20th century, The Indian Patents and Designs Act, 1911 (Act II of 1911)
replaced all earlier acts and placed patent governance under the Controller of
Patents. Amendments were later introduced for reciprocal arrangements with other
countries and priority dates.

Use of invention by the government

Patent of Addition
Patent term enhanced from 14 to 16 years
Filing of 'Provisional Application' and submission of 'Complete Application'
within 9 months

Priority Date: The date on which the first application for the invention is
filed, whether provisional or with complete specifications.

After India's independence in 1947, a committee led by Justice Bakshi Tek Chand
reviewed the Indian Patents and Designs Act, 1911, recommending:

Preventing misuse of patent rights

Ensuring food, medicine, and surgical devices are available to the masses at the
cheapest rate
Amendments in Sections 22, 23, and 23A on the lines of the UK Patent Act

These recommendations were introduced in Act XXXII of 1950. In 1952, another

amendment (Act LXX of 1952) was made to provide compulsory licensing of patents
related to food, drugs, and chemicals.

In 1957, a committee under Justice N. Rajagopala Ayyangar further strengthened the

Indian Patent Law, submitting its report in 1959. The Patents Act, 1970 superseded
all previous patent laws.

In 1995, India signed the TRIPS Agreement, with a 10-year transition period (1995-
2005). The Patents (Amendment) Act, 1999 allowed filing for 'Product Patents' in
drugs, pharmaceuticals, and agrochemicals and included provisions for Exclusive
Market Rights (EMRs).

The Patents (Amendment) Act, 2002 (Act 38 of 2002) introduced new Patent
Rules, 2003, replacing the earlier Patents Rules, 1972. Major amendments included:

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20-year protection term for all inventions

Expanded scope of non-patentable inventions, including Traditional Knowledge
Compulsory disclosure of source and geographical origin of biological material
Simplified provisions for convention countries
Establishment of Appellate Board
Strengthened compulsory license provisions
Simplified procedures
Harmonization with Patent Cooperation Treaty (PCT) provisions

The Patents (Amendments) Act 2005 further amended the Patent Act, 1970.
Highlights include:

Product patent for inventions in all technology fields

Exclusion of new forms of known substances to prevent evergreening
Rationalization of opposition procedure
Introduction of pre-grant and post-grant opposition
Compulsory license for export and manufacture purposes
Extension of grace period from 6 to 12 months for filing if published in
government exhibition

India is a member of prominent Conventions and Treaties related to international

filing and protecting rights globally, such as the TRIPS Agreement (1995), Paris
Convention (1883), PCT (1970), and Budapest Treaty (1977).

Copyrights and Related Rights

The concept of copyrights began in the 15th century. Copyright law became
necessary after the invention of printers and copiers.

The evolution of copyrights law in India occurred in three phases:

1. 1847: The concept of copyrights was introduced with a term of the author's
lifetime plus seven years after death. Registration was mandatory.
2. 1914: The Copyright Act of 1914, based on the Imperial Copyright Act (1911)
of the UK, introduced criminal sanctions for infringement.
3. 1957: The Copyright Act 1957 replaced the 1914 Act, aligning with the Berne
Convention (1886). It has been amended multiple times to comply with WIPO
treaties.

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Amendments focused on the digital environment, including penalties for

circumvention of technological protection measures, rights of management
information, liability of internet service providers, and statutory licenses for cover
versions.

India is a member of international conventions like the Berne Convention, the

Universal Copyright Convention, the Rome Convention, WCT, WPPT, and TRIPS.

Trademarks
The first statutory law related to Trademarks (TM) in India was the Trade Marks Act,
1940. It was followed by the Trade and Merchandise Marks Act, 1958. This act was
then repealed by the Trade Marks Act, 1999 to comply with the TRIPS agreement.

Geographical Indications
India enacted the Geographical Indications of Goods (Registration and Protection)
Act, 1999, effective from September 15, 2003, as a member of the WTO.

Geographical Indicators are defined under Article 22 (1) of the WTO

Agreement on TRIPS.

Trade Secrets
Though India has no specific Trade Secrets Laws, Indian courts have upheld Trade
Secrets protection under various statutes, including contract law, Copyright law, the
principles of equity and the common law action of breach of confidence.

Semiconductor Integrated Circuits and Layout Designs

India passed the SICLD Act, 2000, compliant with TRIPS, to protect Semiconductor
Integrated Circuits and Layout Designs.

Plant Varieties

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India adopted the PPV&FR Act, 2001 as a sui generis regime, protecting new plant
varieties and farmers’ rights.

Traditional Knowledge
Traditional Knowledge (TK) is ancient and indigenous knowledge verbally passed
on to future generations.

TK is not limited to a particular field and covers a wide area.

The Government of India has created the Traditional Knowledge Digital Library
(TKDL) as a repository of 2,50,000 formulations of various systems of Indian
medicine.

Industrial Designs
The Indian legislation enacted the Patterns and Designs Act in 1872 for the first
time, followed by the British Patents and Designs Act in 1907. In 1970, the Patent
Act was enacted. Finally, in the year 2000, a dedicated Act for the ID was passed.

Biodiversity Conservation
Acts and policies to protect the environment and biodiversity in India include:

Mining and Mineral Development Regulation Act, 1957

Water (prevention and control of pollution) Act, 1974
Forest Conservation Act, 1980
Biological Diversity Act, 2002
Scheduled Tribes and other Traditional Forest Dwellers (recognition of rights)
Act, 2006
National Biodiversity Action Plan, 2009
National Environment Policy, 2006

Major Amendments in IP Laws and Acts in

India

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S.No. Year Historical Proceedings

Patents
The Act VI of 1856 on the protection of inventions based on the British
1. 1856
Patent Law of 1852.
Rights renamed as ‗Exclusive Privileges‘. Time for the priority
2. 1859
increased from 6 months to 12 months.
The Patterns and Designs Protection Act Introduction of novelty in
3. 1883 the invention. A grace period of 6 months for the disclosure of the
invention.
Renamed as ‗The Indian Patent and Design Act‘ and brought under
4. 1911
the management of ‗Controller of Patents‘.
Introduction of Patent of Addition. Government can use the
5. 1930 invention if required. The term of patent protection increased from 14
to 16 years.
Filing of the provisional specification to secure the priority date.
6. 1945
Provision of submitting complete specifications within 9 months.
Dedicated Committee formed under the leadership of Justice Bakshi Tek
7. 1949
Chand for reviewing patent system as per the national environment.
A working statement needs to be submitted at the Patent Office.
Endorsement of the Patents with the words ‗License of Right‘ on the
8. 1950
application made by the government so that the Controller could grant
the license.
Provision of ‗Compulsory License‘ in the areas of food, medicine and
9. 1952 insecticide germicide. Process for producing substance or any
invention relating to surgical or curative devices.
After incorporation of the recommendation submitted by the committee
10. 1965 formed in 1949, a new bill was introduced in Lok Sabha but was not
cleared.
Again submitted to Parliamentary Committee. 1911 Act remained
11. 1967
applicable for Designs.
12. 1970 The Patent Act, 1970 passed by the Parliament Committee.
The Patent Act, 1970 came into force with the introduction of patent
13. 1972
rules.
TRIPS Agreement was signed by India and got transition period 1995-
14. 1995
2005 to make domestic laws compatible with TRIPS.
15. 1999 Introducing the provisions for receiving the applications for the
product patent in the field of pharmaceuticals and agro-chemicals (mail

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box)*. Provisions for the grant of EMRs for distribution and sale of
pharma products on fulfilment of certain conditions. Grant of EMR
subject to certain conditions. * after the amendments (1999) the
product patents related to the pharmaceuticals and agrochemicals were
kept on hold for examination till 2005. It is called a mailbox or black
box.
The uniform 20-year term of the patent for all inventions. Disclosure
of source and geographical origin of biological material made
16. 2002
compulsory. Establishment of Appellate Board. Compulsory License
provisions strengthened.
17. 2003 The Patents Rules, 2003 were introduced.
Product patent for inventions in all fields of technology including food,
drug, chemicals and microorganisms. New forms of known
18. 2005 substances excluded in order to prevent the ever-greening of the
patent. Introduction of the pre-grant opposition. Introduction of
post-grant opposition. Extension of grace period to 12 months.
Copyrights and Related Rights
The concept of Copyrights in India was introduced. Validity -
19. 1847
Lifetime+7 years but not more than 42 years in total.
Copyright Act, 1914 was introduced based on the Imperial Copyright
20. 1914
Act, 1911 of UK.
Copyright Act, 1914 was replaced with Copyright Act, 1957 with minor
21. 1957
modifications.
22. 1984 Penalty on second and subsequent conviction.
23. 1994 Registration of Copyright Society made mandatory.
To comply with international Treaties for copyrights protection in the
digital environment. Right to receive royalties for authors and music
24. 2012
composers. Exception of copyrights for physically disabled persons to
access any work.
25. 2013 Copyrights Rules, 2013 introduced.
Trademarks
26. 1940 Trademarks Registry established in India.
The Trade and Merchandise Marks Act, 1958 enacted as per TRIPS
27. 1958
Agreement.
Amended to avoid duplicity and ensure securing proprietors‘ trade and
28. 1999
goodwill.
29. 2002 Trademarks Rules introduced.

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Amended to comply with Madrid Protocol for international filing.

30. 2010
Provision for filing opposition of the registration within 4 months.
31. 2013 Trademarks Rules introduced.
Geographical Indications
Being a member of the World Trade Organization (TRIPS), GI of goods
32. 1999
(Registration and Protection) Act was introduced.
The Geographical Indications of Goods (Registration and Protection)
33. 2002
Rules, 2002 was introduced.
The Geographical Indications of Goods (Registration & Protection) Act
34. 2003
came into force.
Designs
Patterns and Designs Protection Act introduced for the protection of
35. 1872
new patterns and designs.
Amended as Invention and Design Act, 1988 for the protection of new
36. 1888
inventions and designs.
37. 1911 Renamed as The Indian Patent and Design Act.
Design Act, 2000 was introduced; separated from the Indian Patent and
38. 2000
Design Act.
39. 2001 Design Rules, 2001 introduced.
Semiconductor Integrated Circuits Layout Design (SICLD)
Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000
40. 2000
introduced as a signatory of WTO.

Indian Intellectual Property Laws

This section covers the evolution of intellectual property laws in India, key categories
of intellectual property, and specific details about patents and copyrights.

Evolution of IP Laws in India

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2001: Introduction of SICLD Rules and the Protection of Plant Varieties and
Farmers' Rights (PPV&FR).
1970: The Patent Act, 1970, excluded plants and animals from patentability
(amended in 1999).
1991: Enactment of protection for new plant varieties on a sui generis basis,
following UPOV guidelines.
2001: PPV&FR Act introduced in line with the TRIPS Agreement.
2002: Introduction of the Biological Diversity Act, 2002, following the
Convention on Biological Diversity (CBD, 1992).
2003: Establishment of the National Biodiversity Authority and designation of
repositories under the Biological Diversity Act.
2004: Introduction of Biological Diversity Rules.

Categories of Intellectual Property

Intellectual Property (IP) is a broad field that includes technology-led inventions,
works of artisans, industrial designs, commercial brands, and traditional knowledge.

In India, IP is divided into categories including:

Patents
Copyright and Related Rights
Trademarks
Trade Secrets
Industrial Designs
Geographical Indications
Semiconductor Integrated Circuits Layout Designs

Patents
A patent is an exclusive right granted for an invention, providing a new way of doing
something or a technical solution to a problem.

The patent legally protects the invention from being copied or reproduced. In return,
the invention must be disclosed clearly, enabling replication by someone skilled in
the field.

Invention: Creation of a new idea or concept.

Innovation: Translating an invention into a commercial entity or widespread
use.

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Conditions for Obtaining a Patent Protection

According to Section 2(1)(j) of the Patents Act, 1970, a product or process must meet
these criteria:

Novelty: The innovation is new and not known to the public.

Not in the public knowledge.
Not published anywhere.
Not claimed in any other specification.
Inventive Step: The innovation is not obvious to someone skilled in the art.
A technical advancement over existing knowledge.
Possesses economic significance.
Not obvious to a skilled person.
Capable of Industrial Application: The invention can be made or used in any
industry for the benefit of society.

Patent vs. Trade Secret

Inventors must decide whether to patent their invention or keep it as a trade secret.

Trade Secret: Preferred if the invention's secrecy can be maintained for a long
time (100+ years) and reverse engineering is unlikely.
Patent: Preferred if the invention has a short life span, can only be kept secret
for a short period, or reverse engineering is likely.

Rights Associated with Patents

A patent owner can decide who may or may not use the patented invention. The
invention cannot be commercially made, used, distributed, imported, or sold without
the owner's consent.

Patent rights are negative rights, restricting others from using the patent
without permission.

The patent holder can sue infringers and seek compensation for unauthorized use.

Enforcement of Patent Rights

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Enforcement ensures compliance with laws and regulations. Patent rights are
enforced by judicial courts.

The patent owner is responsible for monitoring and taking action against
infringers.

Inventions Eligible for Patenting

Patents can be granted for inventions in any field, from simple items like paper clips
to complex technologies like nanotechnology chips.

Most patents are granted for improvements over existing inventions. For example,
derivatives of penicillin with new properties can be patented.

Patented items are common in daily life, such as toothbrushes, mobile phones, and
cars. Many products contain multiple patents.

Non-Patentable Matters
The Patent Act, 1970, excludes certain products and processes from being patented.

Copyrights and Related Rights

Copyrights are legal rights given to the original creator of works in literature and
computer software. Related Rights cover works in dramatics, sound recording,
film/video recordings, paintings, architecture, etc.

Copyrights and Related Rights are governed by the Copyright Act, 1957 of India. This
act provides rights of reproduction, communication, adaptation, and translation.

Author: An individual who develops the content (of work).

Work: A task undertaken in the fields of literature, dramas, music, artistic,
cinematograph film, and sound recording.

Classes of Copyrights
In India, these classes of Copyrights exist:

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Literature: Books, essays, research articles, speeches, lectures, computer

programs, software, databases.
Dramatics: Screenplays, dramas.
Sound Recordings: Recordings of sounds regardless of the medium (e.g.,
phonograms, CD-ROMs).
Artistic: Drawings, paintings, logos, maps, charts, photographs, architecture,
engravings, craftsmanship.
Musical: Musical notations, excluding any words or actions intended to be sung,
spoken, or performed with the music.
Cinematograph Films: Visual recordings performed by any medium, including
sound recordings (e.g., motion pictures, TV programs).

Criteria for Copyright

To qualify for Copyright protection, a work must exist in some physical form.

Any form of expression that can be viewed or listened to is eligible. Even scribbled
notes for a speech can be copyrightable.

The work must be original, created from independent thinking without duplication
(Original Work of Authorship - OWA).

Copyright protection also requires some creative effort, judged by the Office of
Registrar of Copyright. Minimal creativity is needed.

Straightforward listings, like an alphabetically arranged phone book, do

not qualify for Copyright protection.

Ownership of Copyright ‍
The person who created the work is the first owner of the Copyright.
If the author is an employee, the proprietor owns the Copyright.
The government owns government work in the absence of any arrangement.
The person delivering a speech owns the Copyright.

To use copyrighted material, request permission from the legal owner (author, legal
heir, publisher, etc.), including:

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Title, author/editor, and edition.

Precise material to be used.
Number of copies.
Purpose of the material (educational, research, etc.).
Form of distribution (hard copy, internet).
Whether the material is to be sold.

Copyrights of the Author

Copyrights of the creator are protected under Section 14 of the Copyright Act, 1957.
The author's work cannot be used without their consent.

A Copyright owner has:

Economic Rights (Proprietary Rights): Financial benefits from the sale of

copyrights.
Reproduction of the work.
Distribution of copies.
Public performance.
Broadcasting/communicating to the public.
Translation.
Adaptation.
Moral Rights (Personal Rights):
Right of Paternity: The author retains the right to claim authorship, even
if Copyrights are transferred.
Right of Integrity: The author can prevent misuse of the work that
misrepresents or harms their reputation.

A musical sound recording can have multiple rights holders (lyricist,

composer, singer, musicians, sound recorders).

Copyright Infringements
According to the Copyrights Act, 1957, these acts infringe Copyrights:

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Making copies for sale or hire without permission.

Permitting a place for performance of owned work in public.
Distributing infringing copies for trade.
Public exhibition of infringing copies for trade purposes.
Importation of infringing copies.
Translating a work without permission.

Liability of Owner of an Auditorium/Hall

The owner of an auditorium is liable if they knowingly allow their premises to be
used for illegal copyright material.

Copyright Infringement is a Criminal Offence

Under Section 63 of the Copyright Act, 1957, knowingly infringing Copyright is a
criminal offense.

Punishment: Imprisonment for six months and a minimum fine of ₹ 50,000.

Second conviction: Minimum imprisonment for one year and a fine of ₹
1,00,000.

A dedicated IP division deals with Copyright cases, and a Copyright Board was
constituted by the Central Government in 1958.

Copyright Infringement is a Cognizable Offence

A police officer (sub-inspector or higher) can confiscate infringed Copyright material
without a warrant.

Fair Use Doctrine

Section 52 of the Copyright Act, 1957, provides exceptions to Copyright infringement
under the Fair Use Doctrine.

Limited use of Copyrighted materials for teaching and research is permitted,

comprising of the four-part test:

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The character of the use - use of the work is purely educational, non-profit and
personal.
Nature of the work - The use of work is factual in nature and not imaginative.

Trademarks
A Trademark is a unique symbol that identifies and differentiates products or
services of one organization from others.

The word 'Mark' stands for a sign, design, phrase, slogan, symbol, name,
numeral, devise, or a combination of these.

Eligibility Criteria
For goods/services to be legally classified as a Trademark, they need to pass the
following conditions:

Distinctiveness: The goods and services should possess enough uniqueness to

identify it as a Trademark.
Descriptiveness: The Trademark should not describe the goods or services.
Descriptive marks may be registered if they acquire "secondary meaning."
Similarity to the prior marks: The mark should be unique and should not be
similar to existing marks.

Who Can Apply for a Trademark

Any proprietor of the Trademark is eligible to apply for registration. The mark can be
filed collectively by two or more applicants.

Acts and Laws

Trademarks are governed under The Trademarks Act, 1999 and Trademarks Rules,
2002. These have been amended over time, with the latest amendments in 2010 and
2017.

Designation of Trademark Symbols

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Symbol Meaning

TM Unregistered Trademark, used for promoting goods

SM Unregistered Trademark, used for promoting services
® Registered Trademark/Service, legal owner

Classification of Trademarks
Goods and Services under Trademarks are classified as per the Nice Agreement
(1957), administered by WIPO.

Trademark classification comprises 45 classes, 34 for goods and 11 for services.

Examples of the classes are:

Class 1: Chemicals for use in industry, science, and photography.

Class 45: Legal services; Security services; Personal and social services.

The Vienna codification, established under the Vienna Agreement (1973), is an

international classification of the figurative elements of marks.

Registration of a Trademark is Not Compulsory

Although not compulsory, registration provides advantages:

Legal Protection: Prevents exploitation of the Trademark without authorization.

Exclusive Right: Grants the owner full rights to use it lawfully.
Brand Recognition: Products/services are identified by their logo, creating
brand value.
Asset Creation: A registered Trademark is an intangible property of the
organization.

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