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Intellectual property plays an important role in an increasingly
broad range of areas, ranging from the Internet to health
care to nearly all aspects of science and technology and
literature and the arts. Understanding the role of intellectual
property in these areas many of them still emerging often requires
significant new research and study. To promote informed discussion
of the intellectual property, education and awareness in this
field is important.
Today, possession of land, labour and capital are just not enough
for a country to succeed. Creativity and innovation are the new
drivers of the world economy. The policies adopted by a country
shall determine the nations well being and further as to how it is
developing the trapped intellectual capital. An effective
intellectual property system is the foundation of such a strategy.
Within knowledge-based, innovation-driven economies, the
intellectual property system is a dynamic tool for wealth creation
providing an incentive for enterprises and individuals to create
and innovate; a fertile setting for the development of, and trade
in, intellectual assets; and a stable environment for domestic and
foreign investment.
Regarding
the laws governing the IPR for Indian companies:
Agreement of Trade Related Intellectual Property Rights -
better known as TRIP's- to which India is a signatory, is an
integral
part of WTO and it has an enormous impact on Indian business and
trade partnerships. Accordingly, India has complied its
obligations by amending the Indian Patents Act 1970(based on the
Ayyangar Report of 1959) twice, once in 1999 and later again last
year and now the third and the final amendment is expected to be
done by 2005. In the last few years, India has enacted fully TRIPs
compliant Trademarks Act, Copyright Act, Designs Registration Act
and such other Acts related to fields of IPR.
However,
though most acts have been TRIPs compliant, in the Patents Acts
there are areas where substantive or procedural amendments could
be considered for complying with the TRIPs. While doing so changes
maybe required, specially keeping view the Indian Companies, by
giving protection under the Patents Acts to business methods
qualifying as technology, which at present is not patentable.
Business methods/models or computer programme comprising only of
mathematical or scientific
principles are not patentable under the present Act.
Computer
programmes qualify as expressions and can be protected under the
copyright law, however in certain sectors the need is being felt
for getting a patent protection for certain software in addition
to copyright. Copyright protects the coded expressions of
software, while patent protection can protect the qualifying
features of the software such as its sequence, structure and
organization or its functional elements. On the other, a trademark
is a brand name, it identifies the product and its origin,
guarantees the quality, advertises the product and creates an
image for the product.
How Indian companies can avoid falling into trap over misuse of
Trademarks and Patents ie Protection of IPR: One has to be
extremely cautious while selecting a good brand name, which is to
the extent possible free from potential litigation in future. Good
brand names must be easy to remember, easy to pronounce, easy to
spell and must be legible, short and appealing to the naked eye
and ear and most importantly must be distinctive.
While using a
brand name it is not necessary to register with the appropriate
Trademarks Office, but it is definitely advantageous to do so as
in the event of any dispute over the brand name all that is
required to establish is the right to the monopoly of the brand,
which is the certificate of registration. Once the brand name is
registered, it is as valuable as your fixed assets. It can be
assigned to any other party for a consideration and you may even
grant a license to the use of the brand by others.
Patents on the
other hand are IP created by employees in the course of their
employment, but when it comes to the owing of the right to the IP
created is on the facts and circumstances of a particular
employer-employee relationship. Many Indian Companies have framed
an IPR Policy to this effect, but in absence of any such policy
the clarity of ownership is again a question mark. To avoid
disputes with employees the Companies need to follow a few golden
rules:
Seek legal advice- It is essential to get skilled advice before
entering into any agreement with the employees. Documentation and
maintenance of secrecy is considered as prime issues.
Adopt internal
policies and regulations or guidelines on employee inventions-
Such policies and regulations should contain
provisions on the categories of inventions which fall within the
field of the employers business, the employee inventors obligation
to notify the employer of inventions, the employers procedures for
handling such notifications, confidentiality requirements and
patent prosecution, remuneration/royalty for the inventor, etc.
IP Licensing-
Another way by which Indian Companies can benefit monetarily to a
large extent is by IP licensing. Licensing is
the sharing or the renting of IP through a legally binding
contract that specifies certain conditions with another company in
exchange for the payment of royalties or may involve a sharing of
IP by cross licensing in which both parties have IP and exchange
it, here there is no financial exchange between the parties.
The strategy
of licensing IP is also perhaps the best way for all Indian
companies to walk the middle road between services and products
specially software. IP can also act as a competitive barrier to
stop other companies from targeting your niche domain. Further,
the same IP can also be used to provide services in a faster
manner, though commercialization and marketing remains the key
issue for an IP.
Importance
of Intellectual Property
Intellectual property protection is the key factor for economic
growth and advancement in the high technology sector. They are
good for business, benefit the public at large and act as
catalysts for technical progress. Whether IPRs are a good or bad
thing, the developed world has come to an accommodation with them
over a long period. Even if their disadvantages sometimes outweigh
their advantages, by and large the developed world has the
national economic strength and established legal mechanisms to
overcome the problems so caused. Insofar as their benefits
outweigh their disadvantages, the developed world has the wealth
and infrastructure to take advantage of the opportunities
provided. It is likely that neither of these holds true for
developing and least developed countries. (Extracts from Report on
Commission on IPR London September 2002).
Why care
about IPR?
Patents benefit none other than the owner of the IP and add value
to all industrial as well as business concerns and laboratory
discoveries and in doing so provide incentives for private sector
investment into their development. Anyone in the above business
should have an independent Research and development (R&D) center.
Offering free R&D and processes in over enthusiasm must be
avoided.
Globalization
and the rapid proliferation of technology have elevated the
importance of intellectual property protection for small and
medium sized enterprises (SMEs). The intangible nature of
intellectual property and the worldwide inconsistency of standard
practices create challenges for those businesses wishing to
protect their inventions, brands, and business methods in foreign
markets. The three most common vehicles for protecting
intellectual property are patents, trademarks, and copyrights.
The
Biotechnology Industry Organization advocates a strong and
effective intellectual property system. Strong intellectual
property protection is essential to the success, and in some
instances to the survival, of the biotechnology companies in this
country. For these companies, the patent system serves to
encourage development of new medicines and diagnostics for
treatment and monitoring intractable diseases, and agricultural
products to meet global needs. While giving holistic
interpretation to TRIPS agreement public health should be the
prime consideration rather than merely protecting the interest of
the companies.
In the era of
knowledge age or information age, the fundamental unit of most
products and services is information-- in one
or another form. Have you seen that n-number of websites, virtual
enterprises and virtual products? All these rest upon the
cornerstone of 'information': in digital or non-digital form.
These have become the top IPR issues, this Internet shall bring
several new IPR issues to the fore. In several cases such
information is of proprietary nature, hence, the investment in
that information product, knowledge product or the virtual product
must be protected to encourage other similar initiatives. With
increasing worldwide access to electronic distribution, the damage
caused by piracy to content producers may completely destroy the
value built in their intellectual property.
The same
context is valid in the case of companies who have earned consumer
recognition for their brand names and trade marks. A recognized
brand name or trade mark represents the goodwill that has been
built into the product or service. Consumers tend to associate the
recognized brand name or trade mark with certain characteristics
that are specific to that name or mark. Therefore, companies
should manage, protect and safeguard the investment in the related
intellectual
property rights. Not only this, they should be vigilant if anyone
else is misusing or causing infringement of this Intellectual
property.
That is the
crux of the intellectual property rights: to give credit where,
and when, it is due. With the emergence of the knowledge society
and virtual products, the issue of safeguarding the investment in
the information-based products has certainly gained high
importance. We, as consumers or producers in the information
chain, cannot afford to be ignorant about the intellectual
property rights!! Thus protection of IPR has definite (tangible)
benefits, such as to propagate innovative culture, profitability,
market leadership and helps creation of wealth for the individual
and the nation. India falling one among the developing countries
have miles to go, as she has a vulnerable collection of
traditional, oral, folklore, customary, agricultural, traditional
medicinal like Ayurveda etc. and besides not having much wealth
and infrastructure, lack of awareness of
IPRs among all stratas of people, is a major set back to a
developing country like India.
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Authored by Vandana Vaidya and can be reached at :
vandana_vaidya25@yahoo.co.in
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