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INTELLECTUAL PROPERTY RIGHTS: REGULATIONS AND TREND IN INDIA

Dr. Manoj Dolli Associate Professor

Chetan Business School, Hubli +91-9591395574

[email protected]

Abstract: The Intellectual Property Rights (IPR) were essentially recognized and accepted all over the world due to reasons like to provide incentives to the individuals for new creations, providing due recognition to the creators and inventors, ensuring monetary reward for intellectual property, ensuring the availability of the genuine and original products. Since, India is one of the fastest developing economies and is having diversified industrial back ground with sustainable economic development mantra; it has given utmost importance to research and development. Realizing the importance of inventions, India ratified the agreement with the World Trade Organization (WTO). This Agreement also means that India confirms to the Trade Related Aspects of Intellectual Property Rights (TRIPS). In order to establish its statutory importance, Ministry of Commerce and Industry formulated Department of Industrial Policy and Promotion as a nodal department for the Government of India for all matters concerning Intellectual Property. In light of the above, the present paper discusses the regulations and trends in intellectual property such as patents, designs, trademarks and geographical indications in India. Key Words: intellectual property, regulation, trend, applied, registered

INTRODUCTION

God gifted a wonderful thing called Brain to Man and Mother Nature endowed him with the abundant physical and biological resources on the earth. Man with the power of imagination, started creating his own world by application of his brain or mind and by utilization of these natural resources. He has been producing various articles or products for his needs, comfort and convenience. Theses creation in the earlier days treated as a public property may be because the generous nature of the inventor or the cultural of days. Anybody could use and copy these creations and inventions without any restriction, reservation or payment. However, with the course of time, the importance and value of these creations was realized. The commercial aspect started playing a significant role in these creations. By end of Twentieth Century, the things created and invented by the human mind were recognized as an intellectual property of the owner .The owner's right over these properties was accepted and is known as an Intellectual Property Right (IPR). A new set of laws called Intellectual Property Right Laws, were enacted to protect these property rights. In the global economy and society the importance of IPR is increased. The Intellectual Property Rights are now not only being used as a tool to protect the creativity and generate revenue but also to build strategic alliances for socio-economic and technological growth.

The intellectual property rights were essentially recognized and accepted all over the world due to some very important reasons like to provide incentive to the individual for new creations, providing due recognition to the creators and inventors, ensuring material reward for intellectual property, ensuring the availability of the genuine and original products etc.

Intellectual Property Rights is divided into two categories: Industrial property; which includes inventions (patents), trademarks, industrial designs, and geographic indications of

Dr. Manoj Dolli, Int. J. Eco. Res., 2012, v3i2, 16-27 ISSN: 2229-6158

IJER | MAR - APR 2012 Available [email protected]

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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.

INTELLECTUAL PROPERTY RIGHTS: INDIA India is one of the fast developing economy and having diversified industrial back

ground with having sustainable economic development mantra. India has been recognized as a hub for research and development activities for the industrial sectors more specifically information and technology, drugs and pharmaceutical, space research, biotechnology, entertainment etc. In light of this Intellectual Property office in India is dedicated to mobile the use of such technological advancement for socio-economic development by creating requisite IT culture.

Therefore based on Geneva administers treaties in the field of intellectual property, India is a member of UN agency World Intellectual Property Organization (WIPO). Intellectual property is protected through law, like any other form of property can be a matter of trade, that is, it can be owned, bequeathed, sold or bought. The major features that distinguish it from other forms are their intangibility and non-exhaustion by consumption.

India is also member of two major treaties, namely, Paris Convention for the Protection of Industrial Property (relating to patents, trademarks, designs, etc.) of 1883 and the Berne Convention for the Protection of Literary and Artistic Works (relating to copyright) of 1886. Apart from these, India is also a member of the Patent Cooperation Treaty (PCT) which facilitates obtaining of patents in several countries by filing a single application.

Intellectual Property Rights: Regulations in Indiai

It can be seen that the Chart No.1 that Ministry of Commerce & Industry Department of Industrial Policy & Promotion is the nodal department in the Government of India for all matters concerning WIPO.

Department of Industrial Policy and Promotion (DIPP) and Intellectual Property Rights (IPRs):

DIPP is concerned with legislations relating to Patents, Trade Marks, Designs and Geographical Indications. These are administered through the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), subordinate office, with headquarters at Mumbai, as under:

i. The Patents Act, 1970 (amended in 1999, 2002 and 2005) through the Patent Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.

ii. The Designs Act, 2000 through the Patent Offices at Kolkata (HQ), Mumbai, Chennai and Delhi.

iii. The Trade Marks Act, 1999 through the Trade Marks Registry at Mumbai (HQ) Chennai, Delhi, Kolkata and Ahmadabad.

iv. The Geographical Indications of Goods (Registration & Protection) Act, 1999 through the Geographical Indications Registry at Chennai.

The Controller General of Patents, Designs and Trade Marks (CGPDTM) is also in-charge of the Office of the Patent Information System, Nagpur and the Intellectual Property Training Institute, Nagpur. The office has 446 personnel in the patents and designs Offices and 291 personnel in trademarks and geographical indication Offices. Necessary safeguards



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have been built into the IP laws, in particular in the Patents law, for protection of public interest including public health.

Intellectual Property Appellate Board (IPAB) An Intellectual Property Appellate Board (IPAB) has been set up at Chennai to hear

appeals against the decisions of Registrar of Trademarks, Geographical Indications and the Controller of Patents.

Other IP Legislations Copyright is protected through Copyright Act, 1957, as amended in 1999 -

administered by the Department of Higher Education. Layout of transistors and other circuitry elements is protected through the Semi-

conductor Integrated Circuits Layout-Design Act, 2000 - administered by the Department of Information Technology.

New varieties of plants are protected through the Protection of Plant Varieties and Farmers’ Rights Act, 2001 - administered by the Department of Agriculture and Cooperation.

Article 39 of the TRIPs Agreement mandates protection of test data submitted to regulatory authorities for obtaining marketing approvals against unfair commercial use. A Committee under the chairmanship of Secretary, Department of Chemicals and Petro-chemicals has examined this issue and submitted its Report to the Government.

Chart 1: Organizational Details of Intellectual Property Offices in Indiaii

In India Patent Office’s geographically divided and located at four metros i.e. Kolkota, Chennai, Mumbai and Delhi, the Kolkota office is the head office among the four. However all four offices were reorganized and Patent Office Procedure (POP) was established. A senior officer of each office was designated as a Technical Head to be overall in charge and has been answerable to the stakeholders.

Ministry of Commerce & Industry Department of Industrial Policy & Promotion

Office of the Controller General of Patents Designs and Trademarks

Patent Office (including Design) at Kolkota, Delhi, Mumbai & Chennai

National Institute of Intellectual Property Management at Nagpur

The Geographical Indication Registry at Chennai

Patent Information System at Nagpur



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From July 2009, to ensure quality, uniformity and consistency in the examination and grant patents, four broad specializations of subjects was created. Following are the their respective areas they cover;

Group 1 - Chemistry and allied subjects Group 2 - Biotechnology and micro biology Group 3 - Mechanical and allied subjects Group 4 - Electrical Electronics and allied subjects

This formation of groups encourages regular professional discussion among the members to improve the quality of patents granted.

INTELLECTUAL PROPERTY RIGHTS - TREND IN INDIA Let us know that trends in patents, design, trademarks, geographical indicators in

terms of application filled, registered, type of major companies, sectors etc in India.

Patent A patent is an exclusive right granted by a country to the owner of an invention to

make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available for a limited period of time. In spite of the ownership of the rights, the use or exploitation of the rights by the owner of the patent may not be possible due to other laws of the country which has awarded the patent. These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold or licensed. The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest, along with necessary fees, for obtaining patents in those countries.

Graph 01: Trends in Patent Applications

Source: 2001 to 2009 Annual Reports of Office, CGPDTM

From the Chart 1 it can be studied that the trend in number of patent applications filled, examined and granted during last decade. The trend shows that from 2007-08 on wards number of applications filled was started coming down. More specifically during 2009-10, 34287 patent applications have been filled, this about 6.86 percent decrease as compared to the previous year. This may be due to the amendment of the patents Act in 2002, mandatory publication under Section 11A was introduced with effect from 2003, but it got delayed because of non-availability of digitized documents required for publication and may be other reason is that attrition of patent examiners.



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Among the total 34287 patents filled during 2009-10, the number of applications filled by Indian applicants is 7044 which is a healthy growth compared to the previous year, 6161 applications were filled. This number of applications for patents contributes approximately 20.54 percent of the total number of applications filled during the year.

Table 01: Top Five Indian Applicants State Wise 2009-10

Rank Name of the State Applications Filled (Nos.)

1 Maharashtra 2286 2 Delhi 868 3 Tamil Nadu 813 4 Karnataka 755 5 Andra Pradesh 553

Source: GoI, CGPDTM Annual Report 2009-10, pp 17

The Table 01 shows that out of the applications filled by the Indian applicants, Maharashtra state accounted for the maximum number of 2286 applications followed by Delhi (868), Tamil Nadu (813), Karnataka (755), Andra Pradesh (553) and so on.

Table 02: Top Five Indian Applicants from Pharmaceutical Industry, 2009-10

Rank Name of the Pharmaceutical Industry Applications Filled (Nos.)

1 Ranbaxy Laboratories Limited 37 2 Wockhardt Research Centre 33 3 Cipla Limited 21 4 Hetero Reserch Foundation 11 5 Sulur, Subramaniam Vanangmudi 11


During 2009-10, Ranbaxy Laboratories Limited was the top among Indian applicants which filled maximum number of applications (37) in pharmaceutical industry.

Table 03: Top Five Indian Applicants in the field of Information Technology, 2009-10

Rank Name of the Company Applications Filled (Nos.)

1 Infosys Technologies Limited 23 2 LG Soft India Private Limited 07

3 Centre for Development of Advanced Computing (C-DAC) 06

4 NewGen Software Technologies Limited 06 5 Samsung India Software Operations Pvt. Ltd 06


In the Table No.3 it is observed that in the field of Information Technology, Infosys Technologies Limited has filled maximum applications (23) followed by LG soft India Private Limited (07).



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Table 04: Top Five Indian Applicants in the field of Scientific and Research & Development Organizations, 2009-10

Rank Name of the Scientific and Research & Development Organizations

Applications Filled (Nos.)

1 Council for Scientific & Industrial Research (CSIR) 162

2 Defense Research & Development Organization (DRDO) 80

3 Indian Council for Agricultural Research 55 4 Indian Space Research Organization (ISRO) 17 5 Central Institute of Fisheries Technologies 13


In the field of Scientific and Research & Development Organizations, Council for Scientific & Industrial Research (CSIR) has filled maximum number of applications of 162 followed by Defense Research & Development Organization (DRDO) 80 applications etc.

Table 05: Top Five Indian Applicants from Institutes and Universities, 2009-10

Rank Name of the Institutes/ Universities Applications Filled (Nos.)

1 Indian Institute of Technology 109 2 Amity University 81 3 Indian Institute of Sciences 45 4 Serum Institute of India Limited 12 5 The Energy and Resources Institute (TERI) 07


The Table 05 indicates that during the year 2009-10, Indian Institute of Technology was top among the Indian applicants from institutes and universities, which has filled 109 applications followed by Amity University (81) and Indian Institute of Sciences (45) etc.

Designs: Industrial designs refer to creative activity which result in the ornamental or formal

appearance of a product and design right refers to a novel or original design that is accorded to the proprietor of a validly registered design. Industrial designs are an element of intellectual property. As a developing country, India has already amended its national legislation to provide for these minimal standards as per Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement.

The essential purpose of design law it to promote and protect the design element of industrial production. It is also intended to promote innovative activity in the field of industries. The existing legislation on industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve its purpose well in the rapid changes in technology and international developments.

Patent Officers were being assigned dual responsibilities of examination of Patents and Designs applications. The Designs Act, 2000 is administered through the Design wing of the Patent Office, Kolkota under the Office of the Controller and Examiners.



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Graph 02: Trends in Designs Applications

Source: GoI, CGPDTM Annual Reports from 2001 to 2009

As per the data shown in the chart 2 it is observed that the upward trend in applications filled and registered as well for the industrial designs in India. However, in the year 2009-10, 6092 design applications have been filled, which shows a marginal decrease of about 7 percent as compared to previous year.

Graph 03: Trend of Applications Filled and Registered by Origin


The Graph 3 shows that applications for designs from Indian origin in terms of both filled and registered is highest compared to that of foreign origin. This may be concluded that India has achieved a mature status in the field of industrial designs and in view of globalization of the economy, the present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration.

Trade Marks The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules there under. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. The registration of a trade mark confers certain statutory rights on the Registered Proprietor which enables him to sue for infringement of the trade mark.

The head office of the registry is located at Mumbai and branch offices at Delhi, Kolkota, Chennai and Ahmadabad. With growing awareness about IPR in general and trade



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marks in particular in our country, the role and responsibility of Trade Mark Registry have progressively increased.

Graph 04: Trend in Trade Marks Applications


It is seen in the graph 4 that there is large amount fluctuation between filled, examined and registered application for Trade Marks in India, from year after year. It is mainly because large numbers of applications are pending for hearing and disposal. Never the less the trend in registered trademarks application is increasing over the years. And also the trend of applications being filled for registration of trade marks in India has shown a steady increase. In 2009-10 the number of applications filled by Indians was 1,34,403 and applications originating from foreign applications was 7540.

Table 06: Applications Filled for different Types of Trade Marks, 2009-10

(Percentage) Type of Marks 2008-09 2009-10 Word Marks 39.24 48.49 Device Marks 60.73 51.46 Number Marks 0 0.02 Latter Marks 0.02 0.00 Letter and Numeral 0 0.03 Total 100 (130172) 100 (141943) Note: figures in the bracket indicates the actual number Source: GoI, CGPDTM, Annual Report 2009-100, pp 48

It very clear from the Table 06 that Word Marks and Device Marks are two main important trademarks areas in India at present. It is opinioned that there is a large scope for the in the area of Latter and Numeral Trade Marks. During 2009-10, the number of trademarks registered was 67,490 as against 1,02,257 during the preceding year. The total number of registered trademarks as on 3st March 2010 is 8,22,825.

Geographical Indications Geographical Indications of Goods are defined as that aspect of industrial property

which refers to the geographical indication referring to a country or to a place situated therein as being the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness which is essentially attributable to the fact of its origin in that defined geographical locality, region or country.



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India, as a member of the World Trade Organization (WTO), enacted the Geographical Indications of Goods (Registration & Protection) Act, 1999 has come into force with effect from 15th September 2003. The Geographical Indications Registry is situated at Chennai.

Graph 05: Geographical Indications Applications Registered

Source: http://ipindia.nic.in/girindia/ cited on 1st February 2012

The graph 05 shows that from 2004 to 2010 total numbers of Geographical Indications Applications Registered are 120, this out of applications received 205. The registry has started receiving Geographical Indications Applications from 15th September 2003. During 2009-10, 40 applications are received and registered only 14.

Graph 06: Registered Geographical Indications (Goods), 2004-10

Source: GoI, CGPDTM, Annual Report 2009-100, pp 66

The history of India says that it is rich in manufacturing the handcraft products, which is known to the world. Thus the 67 percent of registered Geographical Indications are fond in Handcraft sector. But more initiatives is required for the manufacturing and production of food stuff, it is mainly because of the India is having its specialty in these areas as well.



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Graph 06: Registered Geographical Indications (State Wise), 2004-10

Source: GoI, CGPDTM, Annual Report 2009-100, pp 67

The Karnataka State is a leading in terms of registered Geographical Indications it is 27 products (22 percent) are registered under this category, followed by Tamil Nadu 18 products (15 percent), from Kerala State 13 products (11 percent) and so on.

Table 7: Comparative Trend of IPR granted/ registered

Year 2000-01

2001-02

2002-03

2003-04

2004-05

2005-06

2006-07

2007-08

2008-09

2009-10

Patents 1318 1591 1379 2469 1911 4320 7539 15316 16061 6168 Designs

2430 2426 2364 2547 3728 4175 4250 4928 4772 6025

Trademarks

14202 6204 11190 39762 45015 184325

109361

100857

102257

67490

Geographical Indications

0 0 0 0 3 27 3 31 45 14

Source: GoI, CGPDTM Annual Reports from 2001 to 2009.

The Table 7 shows that Intellectual Property Rights granted/ registered during last ten years, from 2000-01 to 2009-10 in terms Patents, Designs, Trademarks and Geographical Indications, various between the years. In the above said duration the patents registered during 2008-09 is highest (16061) compared to any other year. However the IPR granted and registered in designs category it is the highest (6025) during 2009-10 and some steady improvements can also be observed for IPR granted for designs. IPR granted for trademarks are almost having continues improvements, but during 2009-10 registration of trademarks is reduced from 102257 in 2008-09 to 67490 in 2009-10 i.e. it about 34 percent reduction to the preceding year. As already it is known that Geographical Indications Registry was started receiving application from September 2003, therefore the IPRs granted in the category is has take still good momentum.



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CONCLUSION Since intellectual property is regarded as an important and effective policy instrument

for a wide range of socioeconomic, technological and political concerns, the development of skills and competence to manage intellectual property rights and leverage its influence demands increased focus. At the same time trends in intellectual property rights can play a direct relation with economic development of the country. Recognizing this fact, the intellectual property in India is well established at all levels - statutory, administrative and judicial. The Government has taken a comprehensive set of initiatives to streamline the intellectual property administration in the country in view of its strategic significance. In the Ministry of Commerce and Industry, the office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) has been set up under the Department of Industrial Policy and Promotion. It administers all matters relating to patents, designs, trademarks and geographical indications and also directs and supervises the functioning of Patent Office (including Designs Wing), Patent Information System (PIS), Trade Marks Registry (TMR) and Geographical Indications Registry (GIR).

Never the less during 2000-01 to 2009-10 it is found that there has been large amount of deviation every year in terms of applications registered for patents, designs, trademarks and geographical indications. Since India is one of the progressively developing economies, there is huge scope for the improvement in all these fields. This can be achieved by providing stronger protection to the patents, timely amendments are to the India's copyright law, effective protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval, avoiding the piracy and counterfeiting etc. However India has made progress in improving its IPR infrastructure, including through the modernization of its IP offices and the introduction of an e-filing system for trademark and patent applications.

REFERENCES Birla Institute of Technology and Science (BITS) (2007): A Manual on Intellectual Property

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Dutz, Mark A. (2007): Unleashing India’s Innovation - Toward Sustainable and Inclusive Growth, World Bank, Washington, D.C.

Joshi, Abhishek (2011): Importance of Intellectual Property Rights, National Law Institute University, Bhopal, http://www.legalservicesindia.com/articles/impip.htm, accessed on 1st February 2012.

Thomas, Jayan Jose (2008): Innovation in India and China: Challenges and Prospects in Pharmaceuticals and Biotechnology, Madras School of Economics, Working Paper No. 35/2008, September. Chennai, India.

Government of India (2006): Annual Report 2004-05, Ministry of Commerce and Industry- Department of Industrial Policy and Promotions, The Office of the Controller General of Patents, Designs, Trademarks and Geographical Indications (CGPDTM).




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Government of India (2011): India in Business, Investment Policy and Procedures – Foreign Direct Investment Policy, Ministry of External Affairs, ITP Division, http://www.indiainbusiness.nic.in/investment/ipr.htm, accessed on 29th January 2012.

Watal, Jayashree (1998): Intellectual Property Rights in Indian Agriculture, Indian Council for Research on International Economic Relations, Working Paper No.44, July, New Delhi.

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