Archive for the ‘Learn IPR’ Category

Padmavati or no Padmavati- at least faith should be honoured   4 comments

The debate on Rani Padmini (Padmavati) has been skewed beyond proportion by several intellectuals including historians, and by discourses in the media with an overemphasis on written record(s) to establish whether such an individual existed or not. Everyone seems to be quoting Malik Mohd. Jayasi, the poet who wrote the famous work Padmavat as if this was the only reliable source to determine the validity of the existence of Rani Padmini. India in the past relied more on oral transmission of knowledge and seldom tried to document what was happening in the society in general. Our historical records are full of male characters, of their achievements, valour etc. but hardly of female characters. Vedic literature also seems to suffer with this drawback.

I would like to argue that Indian society has survived on faith in each other and in the social set up, and as a result has never felt the need for documentation, as was prevalent in the Chinese society. Even records important to one’s life were hardly kept. A Hindu marriage was never recorded in a formal manner; there was never a signing of a document after the marriage. The recording of marriage has been of recent origin although even now most Hindu marriages are not recorded. It is at the same time known that even in absence of any documentation, Hindu marriages are more stable and last longer. The question is – would a marriage of the past be questioned just because there is no document to establish the marriage? To be specific, how many of us can validate the marriage of our great great grand parents, which will take us to the middle of the nineteenth century? If the answer is no, do you declare us illegitimate children? One can challenge several inheritances to property. Would any law in the country dare to declare such marriages invalid? Could the intellectuals and artists of the country afford not to accept the validity of such a marriage? If one were to obtain a post facto marriage certificate from a magistrate, one has to produce just one reliable witness who had attended the marriage. The system has been working and would continue to work in perceivable future.

When the controversy about turmeric (haldi) related patent arose, the US Patent Office asked for documentary evidence to establish that turmeric was used as a wound healing agent for ordinary and surgical wounds. I was deeply involved in the issue and it was surprising to find that no document in Indian languages talked of the wound healing property of turmeric in the manner in which it was described in the said patent. However, we knew that turmeric has been used for years (not recorded) for curing wounds but we needed evidence to protect our traditional knowledge in a foreign land. We could in our perhaps limited search, luckily find a Persian document which had a mention of this property of turmeric based on the uses in India. If the same case was in front of Indian courts, would the courts have asked for documentary evidence? May be in the present legal system, we would need to generate evidence for every action of ours if we need it to be validated. It is going to some time, may be years, before our society is ready for such an overhauling.

Coming back to the Padmavati issue, we should attach a definite value to what the society of that region has grown with, all these years. What is being said by various players in favour of the existence of Padmini needs to be believed and honoured even in absence of any recorded history at that time.  Going only by Jayasi’s work or Khusro’s record will be like relying on translations of Ved, Upnishads and other scriptures by foreign scholars. Jayasi’s work can also be an example artistic flight, losing sight of reality existing almost 300 years back. Let us find some time to understand why hundreds or thousands of people continue to swear that Padmini was a real- life character who had tremendous influence on the Rajput society and culture so much so that she is worshiped even today. To argue it differently, does anyone have any proof that she did not exist?  Let us not engage in the realism or non-realism of the past when history and social practices were not recorded; that is a wasteful exercise in the Indian context. Faith and beliefs are not always evidence based; leave them as such if not detrimental to the society.

(R Saha, B.Tech IIT Kanpur and Former Adviser, Department of Science and Technology, GOI. Presently, Senior Adviser, CII)

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Posted November 28, 2017 by R Saha in Learn IPR

Age and IPR – are they correlated?   Leave a comment

Age is no bar for obtaining patents or design rights or copyrights. A young child can have copyrights over his original notes and paintings and other creative work. The youngest person to be granted a patent is a 4 year old girl from USA for an aid for grasping round knobs. In 1850 Margaret Knight, at the age of 12, invented a stop motion device to quickly stop powered textile loom in case something went wrong. She was granted a US patent. It must be kept in mind that before applying for a patent, the invention should not be made public through publishing or talks or exhibiting it in public. Maintaining records of all that has gone behind the invention including failures must be preserved in an organized manner. Do remember that while you would like to protect your IPR, you must honour the IPR of others and not steal them.

Creating something new which is not known to the world is an activity successfully undertaken by people who are brave, who can ask questions, who can admit their mistakes, who can work hard on one problem, who don’t easily give up, who are prepared to take risks and who can take failures in stride. Inventors have keen eyes and understanding to observe, analyse and integrate. They see a problem and often find a solution which many others are not able to do. Teachers must encourage students to ask questions and not dissuade them. Questions cannot be stupid or meaningless because they show a sense of inquisitiveness which is the founding block for inventions. Our inability to answer questions should not dampen the inventive spirit of students. The growth of a nation and the society is dependent on innovations, be it in the area of science, music, literature, games, handicraft, medicine, engineering or any other area. Young minds are the source of innovations and creativity and they need an encouraging environment which is open and free to thinking and provides opportunities for experimentation.  Children will then become innovators and change agents leading the society and the country to a bright and prosperous future.

 © R Saha

Posted October 5, 2011 by R Saha in Learn IPR

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The need and rationale to have IPRs   Leave a comment

IPRs have very strong tie up with trade and commerce both in the domestic and international contexts. IPR stand you in good stead in the face of competition through exclusive rights in terms of patents copyrights, designs, trademarks or combination of these rights. IPR can also be used to obtain loans, license your IP to others, enter into joint ventures, find business partners and consolidate research and development to create new IP. As a result, the R&D becomes more focussed and directed towards creating IP having practical utility. It must be remembered that every IP generated may not be successful in the market because the success depends on many other factors as well. However, if all other factors are the same, IPR will certainly provide a distinct advantage and lead over other products. It is reported that to introduce a new drug into the market a company may work on many molecules say, few thousands, before arriving at one which may succeed in the market. It may take about 12-15 years to introduce a new drug in the market and cost the company about Rs. 2000- 5000 crores. Therefore, it can be seen that the journey from invention to a successful product is long and may require substantial funds.

The process of invention starts with identifying a problem quite accurately and precisely.   An extensive research may be needed to find out alternative solutions which are really new and non-obvious by studying literature and products available in the market. The solutions cannot be in terms of ideas alone but, a practical way of implementing the ideas must be evolved. Do remember that an invention has to be globally new for grant of a patent along with traits of non-obviousness and utility. After determining novelty, non-obviousness and utility of the invention, an application has to be submitted to the Patent Office along with the description of the invention for the grant of a patent for the invention. As mentioned, IPR are awarded by the government and as an inventor one has to request the government (Central). Prescribed fee has to be paid for obtaining IPR and often it may be advisable to take the help of a patent attorney (lawyer) for this purpose.

© R Saha

Posted October 4, 2011 by R Saha in Learn IPR

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Intellectual Property is protected through various methods   Leave a comment

We have eight different types of IPR recognised the world over, covering different types of creativity and giving varied rights to the owners.

Patents are linked new, non-obvious and useful inventions which may relate to products, processes, compositions etc. Patents are awarded for a period of 20 years. Copyrights are given for original literary (books, articles), artistic (paintings, photographs, drawings), musical works, computer software etc. and for literary work, for example, the rights last for a long period and that is author’s life from the date of creation of the work plus sixty years.  

Industrial design rights are in respect of articles having unique shapes, colour combinations, geometric patterns and ornamentation. Furniture, dresses, tumblers, textile designs, pottery, jewellery and innumerable products will qualify for design rights provided the features are new and original. Design rights are available for a period of 15 years.

Trademarks are names, logos, pictures, numbers, drawings or their combinations used by companies so that customers could identify products with companies and make choices at the time of buying products. TATA, SBI, Coca Cola, McDonald and Microsoft are well known trademarks. Many a times companies may decide to use a trademark for a product such as Xerox, Lifebuoy, nylon. Trademarks can last for ever, provided the owner renews them in a block of ten years.

Protection of IC lay-out designs relates to mask designs of integrated circuits and is valid for ten years. Protection of new plants varieties is in respect of new varieties of known plants. For example if someone develops a spotted variety of rose then this variety can be protected for a period of ten years. Protection of undisclosed information deals with trade secrets and confidential information like data, reports, drawings, design calculations and so on. The term of protection could be infinite provided the owner can maintain the secrecy. However, if someone else generates say, identical drawings on his own, it would not be considered infringement of the previous drawings held as trade secret by the earlier person. Coca Cola still maintains some aspect of the formulation as trade secret.

Protection of geographical indications (GI) is given to names associated for a long time with products originating from a specific geographical location and reputed for their special characteristics like Darjeeling tea, Chanderi sari etc. This protection can also last for ever, provided it is renewed every ten years. It must be remembered that GI is associated with the product and there is no ownership by individuals.

© R Saha

Posted October 3, 2011 by R Saha in Learn IPR

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Understanding the concepts of Intellectual Property Rights (IPR)   Leave a comment

Intellectual property rights (IPR) are about creations of mind which are new and original in the global context and are granted to creators of intellectual property by the government. Creativity and inventiveness have been the central source and theme of human existence and development; and most things that are interesting, important, and useful for humans are the result of human creativity. Our ancestors travelled millions of years, overcoming unimaginable difficulties through grit, hard work, unceasing perseverance and inventive skills, to come to the stage where we find ourselves today. Otherwise how do you explain the transition from staying on trees, to the fabricating of specialized tools and dwelling units some 40 to 50 thousand years back, to practicing agriculture some 10000 years back, to travelling to other planets in the 21st century. Inventions of alphabets, zero, wheel, microscope, antibiotics, transistors and many others have helped the humans to move further which no other animal is capable of doing.

Awarding right of ownership for creations and inventions help the society in advancing further for better living, health, entertainment etc. These rights in many ways are similar to the rights awarded by the government for your land, house, motor cycle, factory, hotels and so on. Whenever we think of property we think about ownership and whenever we think about ownership we know that the property cannot be used without your consent or permission. It may be noted that IPR are exclusive rights and awarded based on certain laws and these rights are available for a fixed period of time. After the expiry of this protection time anyone can use the intellectual property (IP) without the permission of the owner. In our day to day life we come across different types of IP such as new products, medicines, books, paintings, songs, dresses, motor bikes, interesting logo or slogans for companies, laptops, varieties of flowers, vegetables and fruits. Laws have been made to protect different types of IP in different ways through different forms of IPR which will be covered in my next post.

© R Saha

Posted October 2, 2011 by R Saha in Learn IPR

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The Budapest Treaty   Leave a comment

This is an international convention governing the recognition of deposits in officially approved culture collections for the purpose of patent applications in any country that is a party to it. Because of the difficulties and on occasion of virtual impossibility of reproducing a microorganism from a description of it in a patent specification, it is essential to deposit a strain in a culture collection centre for testing and examination by others.

The “Budapest Treaty” was signed in Budapest in 1973 and later on amended in 1980. There are 75 countries which are presently members of the Budapest Treaty. This is an international convention governing the recognition of deposits in officially approved culture collections for the purpose of patent applications in any country that is a party to this treaty. Because of the difficulties and virtual impossibility of reproducing a microorganism from a description of it in a patent specification, it is essential to deposit a strain in a culture collection centre for testing and examination by others.

An inventor is required to deposit the strain of a microorganism in a recognized depository, which assigns a registration number to the deposited microorganism. This registration number needs to be quoted in the patent application dealing with the microorganism. Obviously a strain of microorganism is required to be deposited before filing a patent application. It may be observed that this mechanism obviates the need of describing a microorganism in the patent application. Further, samples of strains can be obtained from the depository for further working on the patent. There are many international depositories in different countries such as ATCC, DSM etc. which are recognized under the Budapest Treaty. India became a member of this Treaty, with effect from December 17, 2001. The Institute of Microbial Technology (IMTEC), Chandigarh is the first Indian depository set up under the Budapest Treaty.

As in July 2011, 75 countries are signatory to the Budapest Treaty and there are 40 IDA. The total number of deposits in all the IDA stands 73,635; out of which 29925 deposits were made from 2001 onwards.  

Background

In 1974, the Director General of WIPO convened a committee of Experts to discuss the possibilities of international cooperation over the deposit of microorganisms for patent purposes. The essence of the solution prepared was that certain culture collections should be recognized as depository authorities and that a deposit made with any one of them should be recognized as valid for patent purposes by all the countries in which protection for the relevant invention was sought. At two further sessions in 1975 and 1976 the Committee of Experts examined drafts prepared by International Bureau of WIPO of a Treaty and Regulations on the International Recognition of Deposit of Microorganisms for the purpose of Patent Procedure. A third draft of this Treaty and Regulations served as a basis for the deliberations of a Diplomatic Conference, convened by the Director General of WIPO, organised by him in cooperation with the Government of Hungary, and held in Budapest form April 14 to 28, 1977. The Diplomatic Conference, which was attended by representatives of 29 states members of the Paris Union for the protection of Industrial property and observers from 2 non-member states of Paris Union, the Interim Committee of the European Patent Organisation, and 11 non-governmental international organizations, adopted a treaty with the title “Budapest Treaty on the International Recognition of the Deposit of Microorganisms’ for the purposes of patent procedure, together with Regulations under the treaty.

 The Treaty came into effect in 1980 when it had been ratified or acceded to by the requisite minimum number (five) of States, and U.S. became a contracting party in August 1980 when the treaty became effective. The Regulations under the Budapest Treaty were modified on January 20, 1981, by the Assembly of the Budapest Union in its second extraordinary session. The said modifications entered into force on January 31, 1982.

Main features of the Budapest Treaty

i) International Depositary Authorities and Recognition of single Deposit

 Under the Treaty certain culture collections are recognized as “international depositary authorities” (IDAs). Any Contracting State which allows or requires the deposit of microorganisms for the purposes of patent procedure must recognize, for those purpose, a deposit made in any IDA, wherever the IDA may be.

 Any culture collection can become an IDA provided that it has been formally nominated by the Contracting State on whose territory it is located and that contracting state has furnished assurances that the collection complies and will continue to comply with the requirements of the Treaty and Regulations. The most important of these are that the IDA will be available on the same terms to any depositor, that it will accept and store microorganisms deposited with it for the full period specified the Treaty, and that it will furnish samples of deposited microorganisms only to those entitled to receive them.

ii) Deposit and Furnishing of Samples

 The Regulations under the Treaty lay down in detail the procedure which depositors and IDA must follow, the duration of storage of deposited microorganisms (at least 30 years or five years often the most recent request for a sample, whichever is later and the mechanisms for the furnishing of samples. The Regulations do not address the timing of the deposit, However; this is left entirely to the relevant national law. Provision is made for samples to be furnished at any time to the depositor, to anyone having the depositor’s written authorization, and to any “interested” industrial property office. However, because IDA may not be familiar with the national laws of different countries, the Regulations require that a third party requesting a sample from an IDA must make his request on a form on which the relevant industrial property office certifies that he is entitled to receive a sample of that particular microorganisms. Alternatively, the industrial property office may, from time to time, notify IDAs of the accession numbers of those microorganisms referred to in patents granted and published by it, in which case such microorganisms become available without the need for certification.

iii) Safeguard of Deposits

 The Treaty and Regulations make various provisions to guard against the loss and consequent non-availability of deposited microorganisms. Thus the IDA must have the expertise and facilities necessary to keep the microorganism viable and uncontaminated throughout the storage period required by the Treaty. If for any reason an IDA is no longer able to furnish samples of microorganisms, a new deposit of the same organism can be made and can benefit from the date of deposit of the original. If for any reason an IDA ceases to function as such, The Treaty provides for the microorganisms deposited with it to be transferred to another IDA.

(iv) Meaning of the Term “Microorganism”

 The term ‘microorganism’ is not defined in the Treaty so that it may be interpreted in a broad sense as to the applicability of the Treaty to microorganisms to be deposited under it. Whether an entity technically is or is not a microorganism matters less in practice than whether deposit of that entity is necessary for the purposes of disclosure and whether an IDA will accept it. Thus, for example, tissue culture and plasmids can be deposited under the terms of the Treaty, even though they are not microorganisms in the strict sense of the word.

© R Saha

Posted September 18, 2011 by R Saha in Learn IPR, Treaties & Agreements

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Hague Agreement on Industrial Design   Leave a comment

The Hague Agreement concerning the International Deposit of Industrial Designs first came into existence in 1925, and was revised in 1934 and 1960. The Agreement aims at providing a mechanism for securing protection of an industrial design in all the member countries by means of an international deposit. The international deposit could be in the form of the industrial product or drawing or photograph or any other graphic representation of the said design. The duration of protection is 15 years from the date of deposit, this term is divided in two periods, one period of five years and the other of ten years. This Agreement is now being implemented by the WIPO. 

A Diplomatic Conference was held in June and July 1999 to bring out some amendments in the Hague Agreement. The revised agreement will come into effect after it has been ratified by six of the initial signatory nations to the Agreement. The idea is to provide a way through which a single design application can give rights to protection for that design in member countries. The international design application must designate countries where protection will be sought. The designated countries can refuse to award design rights, if the application does not meet the requirements of national laws. The Agreement does not lay down any particular standards for registrability of the design, leaving this to national laws.  Once registered, the international registration will have the same effect as a national design registration in those designated countries that have not refused grant of national registration. The other main features of the revised agreement / treaty are:- 

  1. International design protection will be available to nationals of a contracting country, domiciled in a contracting country or having a industrial or commercial establishment in a contracting state.
  2. An international design application may be filed either at the applicant’s national office or directly with the International Bureau of WIPO.
  3. Two dimensional designs (textile designs) would be eligible for protection.
  4. A formalities examination will be carried out by the international Bureau and then the application will be published if it is found to satisfy the formalities. The publication will be made six months after the registration. This can be deferred to 30 months in some special cases.
  5. The International Bureau will, after the registration, send a copy of the application to each of the designated countries. These countries have to inform the Bureau within six months if national requirements are not met. However, for countries that examine design applications for novelty or where opposition system exists, this time is increased to 12 months.
  6. Multiple designs may be included in the same application. It is however, required that all products to which such designs relate must be in the same class under the Locarno classification.

 It can be seen that there are some similarities with the PCT system for patent applications. India is not yet a member of the Hague Agreement and hence, the above provisions or description may not be of immediate relevance to us.  However, there is a strong need to monitor the developments in this area.

© R Saha

Posted September 17, 2011 by R Saha in Learn IPR, Treaties & Agreements

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