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Care For Your Intellectual Property

Written by: Vandana Vaidya, Intellectual Property Expert, Bangalore
Torts Law
Legal Service
  • Talent considers a wide range of factors such as behavior, creativity, performance, special ability or even potential in many areas of worthwhile human endeavor. Since the Stone Age, human is the only creature on this earth among all others, who has effectively utilized this talent or intellectual faculty to improve the standard of living. Intellectual Property, in its literal sense, means, the things that originate from human brain. This creation of human mind is considered to be the most invaluable asset when compared with movable or immovable property.

    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.

    Intellectual property surrounds us in nearly everything we do. At home, at school, at work, at rest and at play. No matter what we do, the fruits of human creativity and invention surround us.

    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.

    Thus the progress and prosperity of a nation depend on the industrial, technological and pharmaceutical development and the people behind are the researchers and inventors. Legal protection of the inventions has to be sought in accordance with the intellectual property rights (IPR) regime.

    The World Intellectual Property Organization (WIPO) has been established to promote the use and protection of works of the human spirit. These works - intellectual property - are expanding the bounds of science and technology and enriching the world of the arts. WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations.

    The establishment of the World Trade Organization (WTO) has further enhanced a major metamorphosis for global trade in the new millennium. The WTO is bringing about sweeping changes in both composition and complexity of international trade and development. There is visible global inter-dependency for establishing trade links and creating a strong web of global integration.

    Intellectual Property is one of the most important aspects of the WTO regime and it has far reaching implications. 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 will have an enormous impact on Indian business and trade partnerships. Accordingly, India has complied its obligations by amending the existing legislation with respect to IPRs. It is a welcome sign to note that, in India, though late, awareness about the intellectual property rights is on the increase.

    About Intellectual Property

    It is not material wants that seek ownership, but the ideas, skills and moral aspirations need equal protection. It refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce.

    Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs, in short the digital or non-digital forms of information.

    Importance of Intellectual Property

    Intellectual property protection is the key factor for economic growth and advancement in the high technology sector.
    There are good for business, benefit the public at large and act as catalysts for technical progress. They believe and argue that, if IPRs are good, more IPRs must be better. On the other side, the developing world side thinks that, IPRs are likely to cripple the development of local industry and technology, will harm the local population and benefit none but the developed world. They believe and argue that, if IPRs are bad, the fewer the better.

    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). 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 strata's of people, is a major set back to a developing country like India. Aggressive and targeted patenting is the need of the hour. 

    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 (Small manufacturing Enterprises SME) 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, which is a need of the hour. Offering free R&D and processes in over enthusiasm must be avoided. Documentation and maintenance of secrecy is considered as prime issues.

    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. However, due consideration must be given while giving holistic interpretation to TRIPS agreement to ensure the public health rather than protecting the interest of these 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 those n-number of websites, virtual enterprises and virtual products? All these rest upon the cornerstone of 'information': in digital or non-digital form. In several cases such information is of proprietary nature, i.e., it has unique value deriving from usage, research, development, design, etc. Hence, the investment in that information product, knowledge product or the virtual product must be protected to encourage other similar initiatives. The initial investment is of critical importance given that replicates of such products could be created with relative ease and without incurring a large expense. How difficult or expensive is it to download a copy of the software program code once it is created? 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!!

    Since centuries, people have tried to safeguard their investment in creations that are somehow unique or provide some unique value. Mogul Emperor Shah Jahan, built Taj Mahal in memory of his beloved queen. Folklore goes that the emperor instructed his soldiers to chop off the hands of the craftsmen so that they could never create another monument like Taj Mahal. Here too, the creation of the product was based upon the innate knowledge or skills of human beings, specifically handcrafted.

    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.

    IPR Awareness

    Intellectual property rights (IPRs) give the owners of ideas, inventions, and creative expression the right to exclude others from access to or use of their property for a certain period of time. International treaties and the laws of the various countries differ significantly in terms of the degree of protection and enforcement available, India too should take the challenge, face the challenges of globalization and harmonization. Like most of us, I applaud international treaties for helping to create rational trading structures and principled relations among nations; and I applaud them for forcing governments to enshrine relatively unchangeable principles that constrain the whims of domestic policy change. But in-depth knowledge of such arrangements demands great care and forethought because of that relative immutability. Vision or forethought is difficult in the fluid environment of the knowledge-based economy. And then the need to comply with treaties often means dealing with decisions which elaborate those treaties in unexpected ways.

    While India has entered the global patent regime, awareness and expertise on the subject of IPR in India is still highly inadequate. Present skills do not extend towards protecting indigenous inventions or understanding the implications of patents granted to competitors. Further, the ability to read or write patents is grossly lacking when viewed in the context of global practices. Indian industry and businessmen cannot afford to be indifferent to these new requirements. India's knowledge-based industries will be looking at filing international patents and their skills in filing, reading and exploring patents will be very crucial in the years to come.

    Need for a Local Attorney
    For industrial as well as business concerns (entrepreneurs) (Small manufacturing Enterprises SME), laboratory discoveries, technology innovators or researchers; IPR management is a key but complex issue involving several interrelated activities. First, there is the gathering of information necessary for creating protection of existing or newly created intellectual property assets. The final step is the exploitation of the intellectual property assets, starting with the decision-making process and strategies for identifying commercial opportunities for research and technical development results. Financial support may be necessary to secure IPR protection, particularly through patenting. Then begins the procedure of marketing patented ideas, and negotiating contracts and agreements on confidentiality, secrecy and licensing.

    Lawyers and Law firms are most useful in assisting various IPR management, protection and infringement of patents in India and abroad. Any attorney may register trademarks or copyrights, or initiate or defend any kind of IP litigation. Yet, because many attorneys are unfamiliar with IP fundamentals, small business owners should seek advice of specialists.

    Most people know enough about real estate property, rough cost according to its location. They also know to clear title before making a purchase or commencing construction. However, when it comes to IPR, most of them are ignorant and offer comparatively cheap insurances against the risk. Few people starting businesses have equivalent knowledge of intellectual property. Hence, consulting a lawyer should become a prior necessity. Here, the consultant lawyer steps into the shoes of a doctor, the more open one is about his intellectual property the more ways he can find out for protecting it.

    To summarize, since now we have all have entered the IPR Regime, let it become a mission statement of every citizen of India and say,' I want to live in a developed India'.

    (I have started a helpdesk called "SECURE" for free online consultation by individual, small business concerns and any one who is the owner of IP and interested to protect his Intellectual property, kindly reach me on [email protected] )

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