Tuesday, 23 June 2015

Copyrights

Copyright law grants authors, composers, computer programmers, website designers and other creators legal protection for their literary, artistic, dramatic and other types of creations, which are usually referred to as “works.” Copyright law protects a wide variety of original works, such as books, magazines, newspapers, music, paintings, photographs, sculptures, architecture, films, computer programs, video games and original databases .

Copyright law gives an author or creator of a work a diverse bundle of exclusive rights over his/her work for a limited but rather lengthy period of time. These rights enable the author to control the economic use of his work in a number of ways and to receive payment. Copyright law also provides “moral rights,” which protect, amongst other things, an author’s reputation and integrity.

“Related rights” refer to the category of rights granted to performers, phonogram producers and broadcasters. In some countries, such as the United States of America and the United Kingdom, these rights are simply incorporated under copyright. Other countries, such as Germany and France, protect these rights under the separate category called “neighbouring rights.” 
There are three kinds of “related rights” or “neighboring rights”: 

1. Rights of performers (e.g., actors, musicians) in their performances. They include a live performance of a pre-existing artistic, dramatic or musical work, or a live recitation or reading of a pre-existing literary work. The work performed need not be previously fixed in any medium or form, and may be in the public domain or protected by copyright. The performance may also be an improvised one, whether original or based on a pre-existing work.

2. Rights of producers of sound recordings (or “phonograms”) in their recordings (e.g., compact discs); and 

3. Rights of broadcasting organizations in their radio and television programs transmitted over the air and, in some countries, rights in the transmission of works via cablesystems (so-called cable castings)

Copyright and related rights protect works of different categories of right holders. While copyright protects the works of the authors themselves, related rights are granted to certain categories of people or businesses that play an important role in performing, communicating or disseminating works to the public that may or may not be protected by copyright.

Example: In the case of a song, copyright protects the music of the composer and the words of the author (lyricist and/or writer). Related rights would apply to the: 

Performances of the musicians and singers who perform the song; Sound recording of the producer in which the song is included; and 

Broadcast program of the organization that produces and broadcasts the program containing the song.

A large number of countries are signatories to several important international treaties that have helped to harmonize, to a considerable extent, the level of copyright and related rights protection amongst countries. In a very large number of countries, this has made it possible for works to benefit from copyright protection without any formalities or requirement of registration

Depending on the nature of your creation, you may also be able to use one or more of the following types of intellectual property rights to protect your business interests: 
Trademarks. A trademark provides exclusivity over a sign (such as a word, logo, color or combination of these) which helps to distinguish the products of a business from those of others. 

Industrial designs. Exclusivity over the ornamental or aesthetic features of a product may be obtained through the protection of industrial designs, which are known as “design patents” in some countries.

 Patents. Patents may protect inventions that meet the criteria of novelty, inventive step and industrial applicability. 

Confidential business information of commercial value may be protected as a trade secret, as long as reasonable steps are taken by its owner to keep the information confidential or secret.

Unfair competition laws may allow you to take action against unfair business behavior of competitors. Protection under unfair competition law may often grant some additional protection against copying of different aspects of products beyond what is possible through the various types of intellectual property rights. Even so, generally speaking, protection under the laws governing the various specific types of intellectual property rights is stronger than the protection available under the general national law against unfair competition. 

Sometimes, a number of intellectual property rights are used (simultaneously or sequentially) for protecting creative works. For example, both copyright and trademark law protect Mickey Mouse. © Disney Enterprises, Inc. Used by permission from The Walt Disney Company

To qualify for copyright protection, a work must be original. An original work is one that ‘originates’ in its expression from the author, that is, the work was independently created and was not copied from the work of another or from materials in the public domain. The exact meaning of originality under copyright law differs from one country to another. In any case, originality relates to the form of expression and not to the underlying idea

Ideas or concepts. Copyright law only protects the way ideas or concepts are expressed in a particular work. It does not protect the underlying idea, concept, discovery, method of operation, principle, procedure, process, or system, regardless of the form in which it is described or embodied in a work. While a concept or method of doing something is not subject to copyright, written instructions or sketches explaining or illustrating the concept or method are protected by copyright.

Reference 
http://www.wipo.int/

Monday, 22 June 2015

TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreementadministered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.[3] It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all."
Specifically, TRIPS requires WTO members to provide copyright rights, covering content producers including performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; new plant varieties; trademarks;trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Background and history


After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and
 China [4] that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement.TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations. Campaigns of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an important role in defeating competing policy positions that were favored by developing countries, most notably Korea and Brazil, but also including Thailand, India and Caribbean Basin states. In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made maximizing intellectual property privileges the number one priority of trade policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).
Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlement mechanism.

The requirement of TRIPS

TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
  • Copyright terms must extend at least 20 years, unless based on the life of the author. (Art. 12 and 14)
  • Copyright must be granted automatically, and not based upon any "formality," such as registrations, as specified in the Berne Convention. (Art. 9)
  • Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
  • National exceptions to copyright (such as "fair use" in the United States) are constrained by the Berne three-step test
  • Patents must be granted for "inventions" in all "fields of technology" provided they meet all other patentability requirements (although exceptions for certain public interests are allowed (Art. 27.2 and 27.3) and must be enforceable for at least 20 years (Art 33).
  • Exceptions to exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict.
  • No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
  • Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
  • In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories under the principle of national treatment (with certain limited exceptions, Art. 3 and 5).TRIPS also has a most favored nation clause.

Implementation in developing countries


It has therefore been argued that the TRIPS standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries' development. Many argue that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use the flexibility available in TRIPS to legislate the weakest IP laws possible.
This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc.) into their legislation to the extent authorized under Doha.
This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities, which has often led to developing countries directly copying developed country IP legislation, or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, according to critics such as Cory Doctorow, encourages them to implement stronger intellectual property monopolies.

Criticism

Since TRIPS came into force, it has been subject to criticism from developing countries, academics, and non-governmental organizations. Though some of this criticism is against the WTO generally, many advocates of trade liberalisation also regard TRIPs as poor policy. TRIPs wealth concentration effects (moving money from people in developing countries to copyright and patent owners in developed countries) and its imposition of artificial scarcity on the citizens of countries that would otherwise have had weaker intellectual property laws, are common bases for such criticisms. Other criticism has focused on the failure of TRIPs to accelerate investment and technology flows to low-income countries, a benefit advanced by WTO members in the lead-up to the agreement's formation. Statements by the World Bank indicate that TRIPs has not led to a demonstrable acceleration of investment to low-income countries, though it may have done so for middle-income countries. Lengthy patent periods under TRIPs have been scrutinised for unduly slowing the entry of generic substitutes and competition to the market. In particular, the illegality of pre-clinical trials or submission of samples for approval until a patent expires have been blamed for driving the growth of a few multinationals, rather than developing country producers.
Reference
https://en.wikipedia.org/wiki/TRIPS_Agreement

PATENT LAWS IN INDIA

PATENT LAWS IN INDIA

In  India,The Indian Patents Act 1970 was implemented in 1972. It made pharmaceutical product innovations, as well as those for food and agro-chemicals, un-patentable in India. It allowed innovations patented elsewhere freely copied and marketed in India. Further, this Act restricted import of finished – formula, imposed high tariff rates and introduced strict price control regulation. This Act was not beneficial to the big foreign multinational organizations and was not in sync with the global patent system.
India being a member of WTO, it had to comply with the requirements under the TRIPS Agreement. As such the 1970 Act was required to be amended. The requirements were that  a mailbox system be set up and Exclusive Marketing Rights (EMR) be allowed. Under the EMR, an international company would get exclusive rights to market a product in the field of pharmaceuticals and agricultural chemical products in the Indian market for a specified period (5 years). The mail box system is a box which received all applications for the patenting of pharmaceutical and agricultural chemical products. These provisions were included in the Patents Act through 1999, 2001 and 2002 amendments. The applications in the mail box were considered in 2005.
These amendments though far reaching, still did not bring the Indian Patents Act in full conformity with the global intellectual property system. This conformity was introduced through the Patents Amendment Act 2005. The main provisions of this Amendment Act are:
1. Product Patent:
The Act extends product patent protection in all fields of technology, i.e. drugs, food and chemicals. Earlier only process patent was allowed which limited patent rights. For example, a process patent was awarded to the way a cure for, say cancer, is manufactured and not for the cure. This allowed the other manufacturers to produce the same cure by some other method and hence not violate patent rights of the original manufacturer. But now after the 2005 Amendment, patent is awarded to the way cancer cure is manufactured and  to the cure as well.
2. Compulsory Licensing:
This is a TRIPS compliant provision empowering the governments to check and control the misuse of patents. Inspite of the existence of a patent, the govt can invoke the compulsory license to make available the patented product to the people in case of national emergency for public non-commercial use. The govt can also invoke compulsory licensing if it feels that the public requirements with regard to a patented product have not been met and the product is not available for the public at an affordable price.
3. Embedded Software:
The Act allows for patenting of embedded software
4. Other provisions:
The Act allows the patent holder to challenge the license so that he can block general production of his drug. Pre-grant and post-grant opposition clause has been provided. The Act also removes provisions relating to EMRs besides strengthening the provisions relating to national security to guard against patenting abroad of dual use technologies.
 Patents Act 2005 provides that following items are not patentable:
A frivolous invention or one that claims anything contrary to established natural laws .
  1. An invention the use of which would be contrary to morality or injurious to public health.
  2. The mere discovery of a scientific principle or the formulation of an abstract theory.
  3. The mere discovery of any new property or new use of a known substance or the mere use of a known process , machine or apparatus unless such known substance results in a new product or employs atleast one new reactant .
  4. A substance obtained  by a mere admixture resulting only in the aggregate properties of the components thereof or a process for producing such substance.
  5. The  mere arrangement or rearrangement or duplication of known devices functioning independently of one another in a known way.
  6. A method or process of testing applicable during the process of manufacture rendering the machine , apparatus or other equipment more efficient, or for the improvement or restoration of the existing machine, apparatus or other equipment for the improvement or control of manufacture .
  7. A method of agriculture or horticulture.
  8. Inventions relating to atomic energy.
The govt has clarified that the new patent regime will not affect the prices of 350 life saving drugs available in the market. This has been done considering the fact that 97% of the drugs available in the market are made off patent.These drugs therefore are not to be patented in India.
Reference
http://www.vakilno1.com/

Jurisprudence (ju·ris·pru·dence,ˌjo͝orəˈspro͞odns/) is noun having meaning the theory or philosophy of law.
  • a legal system






this branch deals with legal system,Pharmaceutical jurisprudence  is vital branch of pharmacy profession which deals with law related pharmacy profession.
Here we nee to understand the need of laws in any profession.most of us consider law as constraint which limits our freedom but this is not the real case.this can be understand with simple example of traffic signals.It is nearly impossible to any big city road devoid for traffic signals,when we come across these traffic signals we stay till the light s red and go when it is green.this ensures that there is not any chaos, no accidents,and no monopoly of one particulate lane ,everybody get equal time and without grudging traffic moves smoothly.Same analogy we have to apply to laws these laws ensures that society be in harmony check any untoward circumstances,minimizes crimes,regulates profession etc. 
                                                    Pharmacy profession such wast profession,besides it is concern with life of peoples(patients),it should be regulated and harmonized.In India medicine is available since ancient times Ayurveda and homemade remedy is widely used,and still equally popular. Allopathy ,Homepathy,Naturopathy and some other alternative method of medicine are available.This is really a big market and therefore good chance of proliferation of some unscrupulous elements is natural,hence indian government enacted laws related to pharmacy profession which ensures the medicines reaching to patients are safe,potential,authenticate,and reasonable.there is not only act which control all this but it is govern by number of laws which are interconnected to each other. Some of them are

1.Legislation to regulate then profession of Pharmacy. The Pharmacy act 1948.

2.Legislation to regulate import, manufacture, distribution & sales of drugs & cosmetics. The Drugs and Cosmetics Act 1940 & rules 1945 & amendments

3.The Drugs Price Control Order 1998 and  latest amendments.

Sunday, 21 June 2015

Legislative Framework of IP Administration

Legislative Framework of IP Administration

Department of IP &P covers
The Patents Act, 1970 (as amended in 2005)
*The Patents Rules, 2003 (as amended in 2006)
*The Designs Act, 2000
*The Designs Rules, 2001 (as amended in 2008)
* The Trade Marks Act 1999
*The Trade Marks Rules 2002
*The Geographical Ind*ications of Goods (Registration & Protection) Act, 1999
*The Geographical Indications of Goods (Registration & Protection)  Rules, 2002,
Department of Education covers

*The Copyrights Act 1957 (amended in 1999)

Law and Regulations
•Patents Act, 1970
–Amended in
•1999
•2002
•2005
•Patents Rules, 2003
–Amended in
•2005
•2006

•From 1.1.1995
–Mail-Box   for pharmaceutical and agrochemicals products
–Exclusive Marketing Rights
•From 1.1.2000
–Patent term increased to 20 years
–Definition of invention – inclusion of inventive step
–Reversal of burden of proof – on the  infringer
–Mandatory compulsory licence provision for food, drugs and chemicals removed
–Right of patentee (importation also included)
•From 1.1.2005
–Product patents for food, chemical and pharmaceutical

What is an Invention?

Sec.2(1)(J)

“Invention” means a new product or process involving an inventive step and capable of industrial application
Patentable subject matter
Invention must
*relates to a Process or Product or both
*be new (Novel)
*involves an inventive step
*be Capable of industrial application
*not fall under  Section  3 and 4

“NEW” MEANS

Invention must not be
*Published in India or elsewhere
*In prior public knowledge or prior public use with in India
*Claimed  before in any specification in India
Inventive step
A feature of an invention that
 involves technical advance as   compared to the existing knowledge   or
*   have economic significance or both      and
*   makes the invention not obvious to   a person skilled in the art

Industrial application means
Invention is capable of being made or used in any kind of industry


Patent Law - Salient Features

•Both product and process patent provided
•Term of patent – 20 years
•Examination on request
•Both pre-grant and post-grant opposition
•Fast track mechanism for disposal of appeals
•Provision for protection of bio-diversity and traditional knowledge
•Publication of applications after 18 months with facility for early publication

•Substantially reduced time-lines

•Compulsory license to ensure availability of drugs at reasonable prices
•Provision to deal with public health emergency
•Revocation of patent in public interest and also on security considerations