Intellectual Property Rights in India Legal Regime: Special Reference to Patent Right

By Sumanjeet | Political Economy Journal of India, January 2009 | Go to article overview

Intellectual Property Rights in India Legal Regime: Special Reference to Patent Right


Sumanjeet, Political Economy Journal of India


The continual process of learning, creating "new knowledge" and further transforming it into "value-added knowledge" with "fair distribution of its benefits" is fundamental to the progress to all knowledge driven industries (Lanjour, 2004). The emergence and growth of information society in the last decade, where knowledge based industries are accorded increasing importance, forms the background to the contemporary debates regarding the Intellectual Property Rights (IPRs). The notion of the intellectual property as its simplest suggests that ideas and knowledge can be parcelled into separable and transferable knowledge objects, which enjoy similar characteristics to material property (Lerner, 1995).

Intellectual property is the property, which is derived from the work of individual's intellect or mind that have some commercial value. Thus, intellectual property rights, very broadly are the rights granted to creators or owner of the work that are result of human intellect or mind. Broadly, these rights are divided into two categories: industrial rights, which include Patents (innovations), Trademarks, Industrial Designs, Trade Secrets and Geographical Indication of source; and Copyright, which includes Literary and Artistic Work such as Novels, Poems, Plays, Films, Photographs, Musical Work, Painting, Sculptures and Architectural Designs (WIPO,2000). The basic idea underlying patents, trademarks and other forms of intellectual property rights is to provide incentives and rewards to the right holders (1), and on the other hand, facilitating access to, and widespread diffusion and adoption of the fruits of creativity and innovation (2).

India's Compliance with the TRIPS Agreements

The last 25 years have witnessed exponential growth in the issues affecting intellectual property laws. The global system of IPRs is undergoing profound changes. Numerous developed and developing countries recently have undertaken significant step in strengthening of their intellectual property regimes. Regional trading agreements, such as North American Free Trade Agreement (3) (NAFTA) and a series of partnership agreement under negotiation between the European Union and Eastern European and Middle Eastern nations, now pay significant attention to issues of regulatory convergence, with the particular emphasis on IPRs (Scotchmer, 2004). Most important is the introduction of the multilateral Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPs) within the World Trade Organization (WTO). Under the TRIPs, current and future WTO members must adopt and enforce strong and non-discriminatory minimum standards4 for the protection of intellectual property (Fink and Maskus, 2005). The TRIPs Agreement, which entered into force on January 1, 1995, is administered by the WTO, and covers seven categories of IPRs. These are: (1) Trademarks, (2) Copyright and Related Rights, (3) Geographical Indications, (4) Industrial Designs, (5) Layout of Integrated Circuits, (6) Trade Secrets, and (7) Parents (Including micro organism and plant variety protection). The principal objective of the TRIPs Agreement is to strengthen and harmonies the IPRs standards among all the signatory countries.

In 1995, India signed the TRIPs Agreement, thereby obliged to comply with its provisions. Being a founder member of WTO, Indian government always tries to comply with TRIPs Agreement by enacted new legislations and amending the existing one. In pursuance of the TRIPs Agreement negotiated during the Uruguay Round, the Indian Patent Act, 1970 was first amended in 1999 to introduce for filing the product patent applications covering the pharmaceutical and agricultural chemicals from January 1, 1995 (better known as mailbox) under article 70.8 of the TRIPs Agreement and to introduce provisions for granting exclusive marketing rights under article 70.9. The Act was again amended in 2002. The second amendment was introduce to bring the Indian Patent Act in conformity with all provision included in section 5 of the TRIPs Agreement relating to patents, barring a solitary exception5. …

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