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  2. 2. Technology & The Evolution Of Homo Sapiens Stone Age Metal working and improved agriculture carried civilisation out of Stone Age. Industrial Revolution (19th Century) Gave rise to mighty machines and modern cities. 20th Century Age of Physics and Chemistry, Atom Bomb, Transistor, Laser, Microchips, Drugs, Pesticides, Polymers 21st Century Age of Biology and Genetics, Dolly, Gene Therapy and Genetic Engineering
  3. 3. Contrary to most entrepreneurs gut reactions, it is a good thing when your competitors are doing well, unless, of course, their success comes at your expense. However, the best way to beat competition is to be ahead of Competition by having exclusivity in the market place.
  4. 4. Indian Mindset : Pre-1991 - Protected & Sellers Markets - Dependency on Government For All industrial Activity & Favours - Unviable Economies of scale in Production - Unrealistic Restrictions to growth, eg., under the licencing System and MRTP Act - Cost Plus norms for pricing, leading to no margins for R&D - Administered prices for some sectors and Subsidies for others - Restrictions on Imports - Aversion for taking business risks - Mistrust of partners
  5. 5. For India To Be A World Power We need to be --  Up-to-date and not backward in our knowledge base.  Competitive and not incompetent in the global arena.  Innovative and not imitative in all our endeavours.  Nurturing and not stifling creativity right from childhood.
  6. 6. A Nation’s Most Valuable Asset: “ Intellectual Capital “ To put real cash on the bottom line, one needs to know how to manage and measure the ultimate intangible “ Knowledge “ And yet only a few Nations know how to generate new knowledge and protect that intellectual capital from erosion and loss.
  7. 7. And one of the best ways of making this capital pay is through protection of IPR
  8. 8. We Live In An Age of Possibilities. A hundred years Ago, we moved from the farm to the factory. Now we move to an age of Technology, Information and Global Competition ( For creation of Wealth, Its Utilisation and World Domination )* President Clinton-1996 * Words in brackets the author’s
  9. 9. We Need To Learn The New Game Of Utilising R&D Results Benjamin Franklin may have discovered electricity, but it was the man who invented the meter who made the money.
  10. 10. Thus, Leadership In Technology Can Be Guarded Only Through --  Continuous and incremental improvements in technology Through R&D.  Ensuring that technological innovations are patentable.  Protection of the technology area from third-party entry through patents.
  11. 11. A Fundamental Issue World Without Protection Of Intellectual Property  Industrial activity will be stifled due to new products, not being discovered, developed and marketed.  Industrial R&D will be discouraged.  No reward system for scientists and their sponsors.  Cumbersome secrecy modalities will be resorted to.  Public will have no access to current state of scientific knowledge.  Legal systems for technology transfer will not be available. The question is whether countries like India, due to their developmental status, have a right to claim free access to products and technologies developed by others at high cost.
  12. 12. Issues - Perceptions Did encouragement of innovation via IPR Systems contribute to economic develop- ment of industrialised countries? OR Are they instruments for economic domination by industrialised nations?
  13. 13. Protection Of Intellectual Property Rights Provides  Encouragement for creation of intellectual property through innovation.  Reward system for success.  Global competitiveness in technology areas.  Incentives for investments in intellectual pursuits.
  14. 14. How To Protect Your Innovation From Piracy  Legal ways including IPR  Moral ways by inculcating values  Bonded approach  Secrecy modalities
  15. 15. Agreements Establishing WTO Multi-lateral Agreements on Trade in Goods General Agreement on Trade in Services Agreement on TRIPS Plurilateral Trade Agreements
  16. 16. Existing WTO Commitments TRIPS: Trade related to Intellectual Property India has to implement TRIPS provisions in two phases, the first by 1st Jan. 1995 by permitting Product Patent Filing, granting EMRs and revoking Section 39 of IPA 1970, the second by 2000, full amendment consistent with TRIPS to be legislated; however implementation only by 1st Jan. 2005. TRIMS : Trade related Investment Measures. GATS : General Agreement on Trade in Services. AOA : Agreement on Agriculture.
  17. 17. Challenges Of The First Decade Of New Millennium On Protection Of Sovereign Assets And Rights Areas Of Action Intellectual Property Protection Patents Trade Marks Copy Rights Designs Trade Secrets (undisclosed information) Bio-Assets Protection Biodiversity Germ Plasms Geographical indications Plant varieties
  18. 18. Intellectual Property Industrial Property Copyrights  Inventions / Patents  Trade Marks  Designs  Literature  Music  Art  Photography  Cinematography
  19. 19. Trade Related Intellectual Property Rights (TRIPS) Deals with: - Copyrights & Related Rights - Trade Marks - Geographical Indications - Industrial Designs - Layout Designs of Integrated Circuits - Protection of Undisclosed Information (Trade Secrets) - Patents
  20. 20. Most Favoured Nation Treatment ( MFN) ( Under TRIPS)  Each Member shall accord to the Nationals of other Members treatment no less favourable than it accords to its own Nationals with respect to protection of IPR.  Any advantage, favour , privilege or immunity granted by a Member to Nationals of any other Country shall be accorded immediately and unconditionally to the Nationals of all the other Member Countries.
  21. 21. Patentable Subject Matter (TRIPS) Article 27 Patents shall be available for any invention, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application. Patents must be available and patent rights enjoyable without discrimination as to the place of invention, field of technology and whether products are imported or locally produced.
  22. 22. TRIPS- Are We Having Interpretation and Implementation Problems ? -Article 31 provides for prevention of anti- competitive practices which will threaten food security of people in developing Countries. -Article 67 mandates technical assistance to developing countries. -Article 30 does provide for Issue Of Compulsory Licences, if Public good warrants it.
  23. 23. TRIPS Agreement Refers To Five Specific Grounds For Granting Compulsory Licences  Refuse to deal  Emergency & extreme urgency  Anti-competitive practices  Non-commercial use  Dependent patents
  24. 24. PATENTS Provide Information on : - Technology contents of the Innovation - Commercial Aspects of Utility of the invention - Legal Obligations - Owner’s Rights & Strategies for commercialisation Patents are filed very early in the innovation-product development-production-marketing chain and hence cannot provide technology inputs, the so-called ‘know-how’, for project implementation. However, patents can be exploited by third parties only if they aregranted a licence by the patentee on mutually agreed terms of payment .
  25. 25. TYPES OF PATENT INFORMATION Commercial : - Activity of Competitors - Owners of Patented Technology - Trends in Technology development Technical: - Prior Art - Deficiencies in Prior Art -Solution offered by the Invention Legal: - Scope of the Claims - Ownership & Assignment Rights - Validity, Maintenance Status
  26. 26. Basic Requirements For Patenting Establishing beyond Doubt that the concerned Invention is: - Novel (Not known , Not Used) - Inventive ( Non-obvious to any one equally skilled in the Art) - Commercially useful * If any one of the above conditions is not satisfied, the patent cannot be granted or if granted, could be revoked.
  27. 27. Unsolved Issues On Patenting Rights  Patents On Life Forms & Agriculture. Patenting Of Biotech Products, including Genes, DNA Sequences, Gene Therapy etc Patenting Of Natural Products Protection Of Traditional Knowledge Protection Of Traditional Systems Of Medicine
  28. 28. Article 27.3(b) Of TRIPS Article 27.3: Describes Rules regarding ownership of Plants Animals & Biological Processes. Most of the wording is deliberately ambiguous and open to different interpretations.  Allows Members not to have Patent regimes for the above, except for micro-organisms.  Requires some form of protection for plant varieties - Eg., Sui Generis System- Review due in 2000 AD.  Micro-organisms not defined.
  29. 29. IPR Issues Impacting On Agriculture Section 27.3 of TRIPS Deals with Protection of Living Organisms Sui Generis System Special Legislation on Protection of Plant Varieties. CBD  Sovereignty of Bio-diversity Assets.  Benefits sharing.  Community Rights over knowledge, products. Genetic Resources Germ Plasms, Genetic Resources, Gene Therapy, Transgenics. Ethical & Moral Issues On ownership, utilisation and commercial exploitation. Moral issues on creation of life (Plants, Animals and Micro-organisms.
  30. 30. The Indian Systems of Medicines  Can we evolve a system of Protection for them?  The Indian systems have their own concepts converted into different practices and products depending on the Practitioners. They cannot be protected by convention IPR Protection systems.  New innovative approaches are required to protect them under possible ‘Sui-Generis’ Systems.
  31. 31. Doctrine Of Nature Principle & IPR  Any natural material of plant, animal or microbial kingdom is the gift of God to mankind and hence, cannot enjoy private ownership or rights and IPR.  Active components isolated by known physical methods from natural products constitute only discoveries and not invention, and are not patentable.  Microorganisms are patentable under TRIPS, however, the term has not been defined.  New uses of natural products can be patented only in countries where utility patents are permitted.
  32. 32. Drafting Of A Patent Application  Abstract  State of the art description  Highlights of the present invention in relation to the closest prior art.  Description of the invention in its broadest scope.  Examples of representative of all the major components, products under generic claims, processes.  Claims with the main (generic) claim covering the broadest scope possible within the ambit of the description and examples.  Sub-generic claims within the scope of the main claim.  Individual product / processes / utility claims.
  33. 33. Certain Basic Concepts Of Patent Drafting 1. Invention to be sufficiently and explicitly described for any one equally skilled in the art to practice. 2. Unitary invention in one application. 3. The scope and coverage to match with examples provided. 4. All the inventors who have contributed to be included as patentees. 5. Applicants may be different from inventors by virtue of an assignment. 6. The patent application to be drafted in accordance with the laws of the country where filed. 7. Provisional or convention application to be followed by complete specification in every country where invention is to be protected. 8. Provisional specification need not have claims and all examples.
  34. 34. IP Act 1970 Change Envisaged Product Patent in food, pharmaceuticals and chemicals sector not provided; only process patents are provided. Product patents to be provided in all branchesof technology. Durationis 7 yearsin food and phamaceu- tical sector; 14 years in all other sectors. Uniform duration of 20 years from the dateof filing for all patents. Compulsorylicensing and in case of food, pharmaceutical and chemical sectors, licences of right. Compulsory licensing on the merits of each case; thepatent holder will have to be heard. No system of protecting plant varieties in India. Effective sui generis for protection of plant varieties. Patenting of life forms are nowallowed. M icro-organisms to be patented. Importation does not amount to working of thepatent. No discrimination between imported and domestic products. The burden of proof is on the plaintiff. In case of process patents, the burden of proof on the alleged infringer. Major Changes In Indian Patents Act (1970) And New IPR
  35. 35. Options For Implementing TRIPs Patent Provisions : -Concept of The invention- Art 27.1 -Exceptions To Patentability- Art 27.2 &3 -Criteria for Patentability- Art 27.1 -Rights Conferred- Art 28 -Disclosure - Art. 29 -Interpretation of Claims- Not speciified -Foreign Applications & Grants- Art 29 Exceptions to Exclusive Rights- Art 30 Compulsory Licences- Art. 30 Reversal of Burden of Proof- Art 43 Transitional Periods- Art 66.1