INTELLECTUAL PROPERTY RIGHTS MEANING & IT’S SIGNIFICANCE

INTELLECTUAL PROPERTY RIGHTS (IPR)

Meaning: Intellectual property refers to creations of the mind: inventions, literary works, artistic works, symbols, names and images used in commerce. Intellectual property is divided into two categories:

•         Industrial Property includes patents for inventions, trademarks, industrial   designs and geographical indications.
•         Copyright covers literary works (such as novels, poems and plays), films, music, artistic works (e.g., drawings, paintings, photographs and sculptures) and architectural design. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programs.

Main elements of Intellectual Property:

•         Creation of mind/ Idea
•         New/ Novel
•         Tangible

Types of IPRs

The different types of IPRs that can be legally protected are:

1. Patent: An invention that is new, non-obvious and has industrial/ commercial application. It is in product as well as in process.
2. Trademark: It is in the brand and/or logo that associate a product with its origin/ owner. For example, ITC, Britannia, Pepsi etc.
3. Design: In the design of the product/ packaging, etc. For example, unique shape of a machine, unique shape of lemon squeezer
4. Geographical Indicators: Unique characteristic of the product that is attributable to the geographic origin of that product. For example, Nagpuri Orange
5. Copyright: In content. For example, article, book, research papers
6. Integrated Circuits: Integrated circuits in semi-conductors etc.

Exclusive Rights upon obtaining an IP protection:

•               Right to use
•               Right to sell
•               Right to modify/ translate/ adapt
•               Right to copy/ reproduce
•               Right to license in part or in whole
•               Right to transfer/ assign

Intellectual Property Rights (IPRs) are the rights given to the Inventor over the creations of their mind which gives protection to the Inventor for his work against competition in a country, where they have got registered their work. There are several IPRs associated and available for a Product such as Development of product, Technology of the product, preservation techniques, standardized recipe of process/item/product, product design, packaging design, branding, logo, marketing technique etc. may be protected under IP regime. There are various types of IPRs available like Patent, Trademarks, Industrial Design, Copyright etc. to protect the Inventions from copying or being used by others. Protection under the relevant IPRs gives the Inventor, a remarkable edge for commercialization of invented product /technology.

To elucidate the importance of awareness of several Intellectual Property Rights protection availability in the Product, consider the below illustration.

Development of any Product, say “A” consists of following main stages, wherein each of the stages has one or more Intellectual Property Right that can be protected and owned legally through respective Statute:

1. Process

1.       The process invented to develop the Product, “A”, is patentable if it is new, involve an inventive step and has an industrial application.
2. In case a Machine is specifically designed to develop the Product, then the Design of that may be protected under the Industrial Design Act. The Technology involved in the Machine may also be patentable.

1.           Product “A”
2.         The Product, “A” is also patentable if it is new and satisfies the criteria of Patent as enunciated later in this chapter and has industrial use.
3.         If the Product is designed in a unique way that is new and neither obvious nor existing, then even the Design of the Product may be protected by filing the application for Registration of Design under the Industrial Design Act.

iii.         Standardisation:

Standardisation is in itself is a major process that optimises the composition and quality of the Product. For standardisation of product, there may be need of various testing equipment, reagent kits, best processes etc.

1.   Patent may be available in the processes or techniques used for this process.
2.   Patent may be available in the reagent kits used.
3. Design rights may also be available in the machines or equipment used for this.

1.         Packaging: 

The IP rights available on Packaging are:

1.   The design of the Packaging: The Design may be registered under the Industrial Design Act.
2.   Technique of Packaging: May be patentable
3.   Packaging Material: May be patentable

1.         Branding:
2.   The Product name may be registered under Trademark
3.   The Company or Brand name, its logo, its tag line may be registered under Trademark

1.         Marketing Techniques:

The marketing technique(s) used that is/are specific to the business concerned are considered as trade secret(s) of the business. That can be protected through a Non Disclosure Agreement (NDA) or Confidentiality Agreement whenever they are shared with any other person.

Now, these IPRs will be discussed individually.

Commercialisation of Technology

Generally, the IPR and its subsequent commercialisation are considered as independent terms. In most of the universities and institute these are taught as separate subjects only. However, contrary to this there is close interdependence of these two terms.

Consider the following figure 1:

At the first glance the above figure does not look error free. Let us try to understand the same.

It is easier to digest that an IP protected invention has remarkable advantage over an invention without the IP protection for the commercialisation. What does it mean? Does it only mean that the Inventor with IP protection might make lots of money?  May be true.

However, it has other connotations too. A young inventor would know that it was not easy for him to make his first invention. More difficult would be to develop the idea into a product, especially to make it feasible for the industry. However, after going through all the hard work from invention to development to IP protection to commercialisation and to so called making money, what would he earn… only money?

No. Now he has got the framework & the infrastructure where his fertile mind can play the game called R&D much more easily and at a scale much larger than before. This R&D facility of the Inventor (now owner of the commercial asset) would give an opportunity for many young inventors to innovate properly. This is how the economy progresses. US, Japan and other developed economies have witnessed the same over past many decades. No economy can depend on government alone to innovate. This is where the importance of commercialisation of IPRs lies.

Therefore, once the inventor is able to get the patent or any-other IP Protection for the developed technology/ product, the next step should be to find a suitable form of business to commercialise the same. The simplest method would be that he/she himself/ herself start their own business and manufacture & sell the products in the market. In such cases the inventor would require the following:

•             Infrastructure
•             Funds
•             Business and Commercial knowledge
•             Human resources
•             Management of all the resources
•             Market knowledge
•             Knowledge of corporate laws & corporate governance etc.

However, the forte of any scientist or scientific institute is his/its technical knowledge and therefore most of the scientist community would not like to handle the above tasks that are alien & cumbersome for them. Some of the Inventors may be equipped to do so; others may like to choose the other forms of business where a suitable partner could take care of above.

The other modes of commercialisation of the product/ technology, with a business partner, would be as follows:

•         Joint Venture through various forms of Business Arrangements
•         Technology Transfer Agreements
•         Royalty Agreements

These are discussed below:

Conclusion

It is quite evident that there seems to be no dearth of the intent of the Indian government to push the research and development in the country. However, in-spite of that, are we, as a nation, comfortably placed in the area of research & development and its further exploitation for the public at large? 

There may not be a straight answer to this. But we may find few indicators that may indicate that a lot is needed to be done and we still need to cover a long distance in the area. 

According to a report of World Intellectual Property Rights Organization (WIPO), over 3 million Patents applications were filed in 2016. Out of this only 45057 applications were filed in India and out of these 45057 applications, only 13199 applications were filed by Indians & balance by non-residents.

As per Controller General Patents, Design and Trademarks 7 out of 10 patents in India were filed by the foreigners or foreign entities between 2013 to 2016. Out of total 1.45 lacs patents filed between the year 2013 to 2016, 1.05 patents were filed by foreign natural persons or other foreign applicants (legal entities or organizations). Indian inventor or other Indians account for 27% or 39318 patents only.

According to few researchers, the underwhelming Indian numbers are because of a lack of excitement in the community. This may also because of lack of awareness in the Indian scientific industry about the implications of registering a Patent and the knowledge of the process etc. Say, if you ask an average young technical student about going for patent, he/she may respond that once you develop a new product then only you need to go for patent registration. However, the fact is if you have a new process or a technique or design or innovative technique of packaging, or even if the Invention is at a provisional stage (provided the complete details of the Invention be filed within a period of twelve months), you might be eligible to get it patented. This list is long and depends on the technical understanding of the inventor as well as the person who is helping the inventor to get his/her Invention patented or any other protection for the IP developed.

Lastly, though it seems little digressed from the topic, but a relevant data to share. India has a strong network of science & technology institutes and training manpower. It has the third largest scientific and technical manpower in the world with 16 lacs universities awarding 4000 Doctorate degree and 35000 post graduate degrees annually. However according to an internet report, India continues its trend to top the list of immigrant scientists & engineers to the US. The increase in rise in brain drain from 2003 to 2013 was approx 85%.

A study was conducted in US to analyse the contribution of the exponential growth, over last many decades, of US GDP and the per capita income of the people. Nobel Prize winning economist Robert Solow studied factors of production, leading to growth and found that over 60% of the economic growth has resulted because of technological and related innovation as a dominant factor.

So what does it indicate? Does it indicate that we as a nation are producing loads of scientist to give their contribution to US or other European countries? But if there is a brain drain to US or Europe, then there would be reasons for that. We, as a nation, should look into the same because if it requires technological innovation for a nation to grow at a fast pace, then we would require an efficient Human Resource who can innovate & show case to the world by registering IPRs to accelerate India’s growth and bring glory to the nation. 

References:

Extracts taken from Book: Food Frontiers published by Delhi University – Chapter 14- Intellectual Property Rights for Food Industry & Commercialisation of Technology (Author: Ashoo Saxena and Shweta Verma)