Guidelines and FAQ's of all IPRs

WHAT IS AN IPR?
-A right given over a creation of the mind and to exclusively exploit it for a certain period of time
CHARACTERSTICS OF IPRs:
· Intellectual property is economically valuable information
· Intellectual property right is the legally enforceable power to exclude others from using the information created, or to set the terms on which it can be used
· Trips prescribes uniform minimum standards and periods for which protection should be granted to different intellectual property rights
· Most favoured nation and national treatment

GENERAL PRINCIPLES
· Paris convention on industrial patents; Berne convention on copyrights; Rome convention and treaty on intellectual property in respect of integrated circuit.
· Non-discrimination against foreigners and non-discrimination between foreign nationals.
· The concept of exhaustion of rights.
· The concept of jurisdiction across.
· Dispute settlement does not come into play so long as MFN and national treatment.

ENFORCEMENT OF IPRs
· TRIPS is the first WTO agreement to lay-down domestic enforcement provisions.
· Prescribes the institutional mechanism, procedures and remedies that members should adopt :
· To enable IPR holders to obtain redress under civil law;
· To prevent release by customs authorities of counterfeit, pirated and other goods that infringe IPRS
· To prosecute counterfeiters and pirates under criminal laws

DISPUTE SETTLEMENT
· Article XXII (consultations) and article XXIII (nullification or impairment of benefits) of GATT apply to TRIPS also.
· However Up To 1/1/2000, article XXIII applies only where there is failure of a member to carry out its obligations. non-violation clauses, thus, do not apply.
Provision to be reviewed by 1/1/2000.

TRANSITION PERIODS
· Developed Countries - 1/1/1996.
· Developing Countries - 1/1/2000. in case patent protection not available to an area of technology, up to 1/1/2005 subject to mailbox and EMRS.
· Transition Economies - as above, if they are facing problems in reforming their IPR laws.
· LDCS - 1/1/2005. Developed Countries shall provide incentives for transfer of technology to LDCS.
· No transition period for MFN and National Treatment.

THE SEVEN IPRs IN THE TRIPS UNIVERSE
(Patents, copyrights, trademarks, geographical indications, trade secrets, Industrial designs, integrated circuits)

PATENTS
WHAT CAN BE PATENTABLE
· New, non-obvious, involves an inventive step, capable of industrial application
· Exception to patents: if it harms public order or public morality; harms humans, animals plant life; harmful to environment
NON PATENTABLE
· Diagnostic, therapeutic and surgical methods
· Plants, animals and essentially biological processes except micro-organisms, and non biological production of plants and animals
WHY PATENTS?
· Protects technological innovations by granting monopoly rights
· Encourages disclosure of information
· Encourages further development and exploitation of invention

WHEN CAN A PATENT BE USED WITHOUT AUTHORISATION
· National emergency or some other extreme urgency for public non-commercial use.
· In cases where user has failed despite efforts to get authorization from owner on reasonable commercial terms and conditions.
· Dependent patents.
· Failure to work or inability to meet demand through manufacturing can let the state grant a compulsory license

PATENTS ACT OF INDIA
· Product and process patents
· Mailbox system
· Exclusive marketing rights
· Restrictions to filing indian patents abroad removed
· Reversal of burden of proof from complainant to defendant
· Time period: twenty years
· Comes into force w.e.f. 1.1.2005

IMPLICATIONS FOR DEVELOPING COUNTRIES
· Application for patents :54000 (1997); industrial countries 97%; patents in developing countries 80% to residents of developed countries.
· Profit talks: cosmetic drugs & slow ripening tomato higher on priority than malaria vaccine/better crops.
· Tighter controls with large MNCs - smaller entities suffer.
· Tighter IPR regime leads to higher cost of transfer of technology
· Bio-piracy: silent theft of centuries of traditional knowledge from developing to developed countries.
· Cheaper processes cannot be used to compete with more expensive products - no reverse engineering
· Indian firms to pay royalty to foreign patent holders for 20 years; cannot freely produce as is done now
· Increase in the price of drugs and medicines?
· More investment required for in house R&D
· SMEs to be more R&D units for MNCs - technologically intensive as technology rather than product becomes more important

COPYRIGHTS
· Protection will be for expressions and not for ideas/concept. Computer programmes and such compilation of data will be treated as intellectual creations and protected as literary works.
· Performers have right to prevent (a) fixation of their unfixed performance; (b) reproduction of such fixation; (c) broadcasting.
· Producers of phonograms can control reproduction of their phonograms and commercial rental of phonogram.

TRADE MARKS
· Any sign capable of distinguishing the goods or services of an undertaking from those of others may constitute a trade mark
· Period seven years
· If use is condition for registration, non use for three years will result in cancellation

GEOGRAPHICAL INDICATIONS
· Two objectives: preventing misleading public and unfair competition
· Indicators which identify a product as originating in a particular region and where the quality or reputation is attributable to its particular origin. Examples: Darjeeling tea, Dehradun rice, Scotch whisky/Champagne.
· Members are required to prevent use of designation or presentation of a product which indicates that the product originates in a place different from where it actually originates.

GEOGRAPHICAL INDICATIONS, WINES AND SPIRITS
· For wines and spirits: such geographical indicators will be prevented even if true origin of the product is indicated. "Scotch Whisky" with indicators "Made In India" not permitted.
· Case: Basmati Rice.

INDUSTRIAL DESIGNS
· New or original industrial designs will be protected. "looks", "shape", "ornamentation", "pattern", configuration".
· Designs which are essentially technical or functional are specifically excluded.
· Period of protection ten years

LAY OUT DESIGN OF INTEGRATED CIRCUITS
· Reaffirmation of the treaty on intellectual property in respect of integrated circuits. Lobbied by the US Hardware/Software industry.
· Reproduction of a protected layout; importing selling or otherwise distributing for commercial purposes a layout design or an integrated circuit incorporating a protected layout or an article incorporating such an integrated circuit, not possible without right-holders permission.
· Reproduction for private purposes, evaluation, analysis, research and teaching allowed.
UNDISCLOSED INFORMATION /TRADE SECRETS
· Creates a system by which holders of secret information are not forced to part with to government or other bodies.
· Where secret information (best reports of chemicals and pharmaceuticals) is given to government, data to be kept secret.
· "Secret" information: information not generally known; has commercial value; person in control of the information has taken steps to keep it secret.