This article is written by Srishti Sinha, a student at the Institute of Law, Nirma University, Ahmedabad. This article deals with the question of how to protect your innovation process through Intellectual Property Rights.
Table of Contents
Introduction
We now live in a world where the capacity to create, sell, and, most crucially, appropriate (or capture) the economic advantages of scientific and technical breakthroughs determines the economic health of nations and the competitiveness of companies. Patents and copyrights are examples of Intellectual Property Rights (IPRs) that companies employ to safeguard their investments in the invention.
Intellectual property (IP) is often regarded as a company’s most valuable asset. Patents, copyright, trademarks, and registered designs are all examples of intellectual property rights that may be used to protect innovation. In reality, several IP rights may apply to a single product or idea. You must acquire one or more of the four basic forms of intellectual property to protect your concept from being stolen by others.
Every innovation begins as a trade secret of the innovator. Inventors must first obtain one or more of the other kinds of intellectual property protection, such as patents, trademarks, and copyrights, before they may sell their innovations.
Intellectual Property Rights
Intellectual property rights are the rights granted to individuals over the creation of their minds. For a set length of time, they generally grant the author exclusive rights over his or her invention. Traditionally, intellectual property rights are separated into two categories:
Copyright and its related rights
Copyright protects the rights of creators of literary and creative works (such as books and other publications, musical compositions, paintings, sculptures, computer programmes, and films) for at least 60 years after their death.
The rights of performers (e.g. actors, singers, and musicians), makers of phonograms (sound recordings), and broadcasting companies are also protected by copyright and associated (often referred to as “neighbouring”) rights. The primary societal goal of copyright and associated rights protection is to promote and reward innovative activity.
The Copyright Act, 1957 governs copyright law in India, and it has been modified six times, the most recent being in 2012. It is a comprehensive legislation that protects copyright, moral rights, and adjacent rights. The Act establishes transferrable, comprehensive economic rights (copyright) in a variety of works. Moral rights are perpetually vested in the authors and their legal representatives and are non-transferable and enforceable by the authors and their legal representatives even after the copyright in the work has been transferred.
The Copyright Rules, 2013, came into effect on March 14, 2013, and set out the procedures for relinquishing copyright, obligatory licences, statutory licences, voluntary licences, registration of copyright societies, membership, and management of copyright societies and performers’ organisations.
Industrial property
Industrial property can usefully be divided into two main areas:
- One area can be defined as the protection of distinguishing indicators, such as trademarks (which differentiate one company’s goods or services from those of another) and geographical indications (which identify a good as originating in a place where a given characteristic of the good is essentially attributable to its geographical origin).
The goal of trademark protection is to encourage and promote fair competition, as well as to safeguard customers by allowing them to make educated decisions about diverse goods and services. If the symbol in question remains unique, the protection may exist eternally.
- Other forms of industrial property are protected largely to encourage technological innovation, design, and development. Patented innovations, industrial designs, and trade secrets all come within this category.
The societal aim is to safeguard the outcomes of investments in new technology development, therefore providing an incentive and means to fund research and development operations.
Types of Intellectual Property Rights
Intellectual Property Rights (IPR) are exclusive rights granted by the Indian government to safeguard the uniqueness of an inventor’s work. The tangible product of the human mind is a simple intellectual property right. Patents, trademarks, trade secrets, industrial design, layout design, and copyright-oriented rights are all included in intellectual property rights. This intellectual property right refers to people’s ownership of their creations. For a set length of time, they generally grant the inventor exclusive rights to exploit his or her inventions. Since the uniqueness of the work can have varieties in it, therefore, the Intellectual Property Rights are divided into some types, to ease the understanding of each type.
Four Basic types of IPR are as follows:
Trade secrets
Trade secrets are unique, confidential knowledge that is valuable to a company because it offers it a competitive advantage in its market. If a firm acquires a trade secret, it may cause harm to the original owner.
Others cannot duplicate or steal an idea if a person or company has trade secret protection. Businesses must be actively conducted in a manner that indicates their willingness to preserve information in order to establish it as a “trade secret” and to get the legal protections associated with trade secrets. Trade secrets are protected even if they are not officially registered; nevertheless, a trade secret owner whose rights have been violated–for example, if someone steals their trade secret–can petition a court to take action against that person and prohibit them from utilising the trade secret.
Trade secrets are defined and protected in the United States under the Economic Espionage Act of 1996 (outlined in Title 18, Part I, Chapter 90 of the United States Code) and are also subject to state law. Each state may enact its own trade secret laws as a result of a 1974 judgement.
In India, there is no particular legislation that protects trade secrets and sensitive information. Indian courts and tribunals, on the other hand, safeguard trade secrets, sensitive information, and corporate know-how. Under common law, a misappropriation action can provide wide protection for trade secrets. Under the grounds of justice and contractual obligation, Indian courts have supported trade secret protection. The provision pertaining to restraint of commerce in Section 27 of the Indian Contract Act makes this clear. This clause, which is broad in scope, deems all trade restraint agreements invalid.
The Paris Convention’s Article 10 (b) and the TRIPS Agreement’s Articles 39(2) and 39(3) established the worldwide standard for trade secret legislation in 1995. However, no similar regulation exists in India, putting undeclared proprietary assets in jeopardy.
Patents
A patent is an exclusive right given for an invention, which is a product or a method that gives a new technological solution to a problem or a new way of doing something. It gives the patent holder protection for his or her idea. The protection is only provided for a set amount of time, namely 20 years. Without the permission of the patent owner, the innovation cannot be commercially manufactured, utilised, distributed, or sold. When a patent expires, the protection ceases, and the innovation enters the public domain, which means that the owner no longer has exclusive rights to the creation, and it can be commercially exploited by anyone. Patents in India are controlled by the Patent Act of 1970 and Rules of 1972, which apply across the country.
Copyrights
Although they are sometimes mistaken, copyrights and patents are not the same things. A copyright is a kind of intellectual property protection that safeguards original works of authorship, such as literary works, music, and art, among other things. Because copyright is inherent in work as a result of its production, registration is not required. However, registering copyright establishes that the work has copyright and that the creator is the proprietor of the work. In exchange for remuneration, creators frequently sell the rights of their works to persons or corporations best suited to promote them. These payments are typically made contingent on the work’s actual use and are referred to as royalties.
Trademarks
A trademark is a distinguishing mark that identifies certain goods or services as those produced or offered by a specific person or business. It might be a single word, letter, or number, or a combination of them. Drawings, symbols, three-dimensional signals like the design and packaging of items, auditory signs like music or voice sounds, scents, or colours utilised as differentiating elements are all examples. It ensures the owner of the mark has the sole right to use it to identify products or services or to permit someone else to use it in exchange for payment.
Patents and copyrights can expire, while trademark rights are derived from the use of the trademark and can thus be kept eternally. The registration of a trademark, like that of copyright, is optional, although it can provide extra benefits.
Trademarks in India are protected by a combination of particular statutes (such as the Trademarks Act 1999) and auxiliary legislation (such as the Customs Act 1962 and the Companies Act 1956).
The procedure to be followed before the Trademarks Registry is outlined in the Trademarks Act and related rules. The Code of Civil Procedure 1908 applies to civil procedures brought before the courts, whereas the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 apply to customs recordals. The Companies Act, as well as the restrictions established under it, apply when trademarks or names are used in a business name and the Indian Penal Code of 1860 is used to prosecute criminal offences. Unique laws, such as the Emblems and Names (Prevention of Improper Use) Act 1950, may be applicable in specific situations.
Invention v. innovation
Invention is defined as “the first time production of a thing or the introduction of a method.” For example, Thomas Edison was a pioneer in the field of invention. On the other hand, when someone “improves on or adds a substantial addition” to something that has previously been developed, this is called innovation. For example, Steve Jobs was an innovator. In its simplest form, innovation may be defined as a change that adds value to products or services while also meeting consumer demands. It occurs when a new and effective product or service is brought to the market that meets the demands of customers by providing better products and services.
Characteristics required in order to legally protect your innovation
Some of the characteristics which must be fulfilled by any innovation to possess legal protection are as follows:
- The innovation should be new: It would be unjust to impose the economic benefits of a patent on something that is already well known, thus you can’t legally protect anything that is already widely known.
- The innovation should have a subject matter which can be considered for protection.
- The innovation should be inventive: The ‘obviousness’ of the new product, technique, or innovation is a prerequisite of an innovative step. It is not protected if it is ‘obvious’ to a knowledgeable person.
- The innovation should be useful: This criterion has nothing to do with whether the new product, method, or idea is ‘useful’ in terms of whether or not it will be purchased. Rather, it concerns whether the invention can be manufactured in line with the patent’s claims and details.
- The innovation must not have a prior use.
Ways to protect your innovation
One of your company’s constants is innovation. It is necessary, yet it is pricey because the expenses frequently outweigh the benefits. Fortunately, your recent idea has filled a niche in the market. You want to safeguard your Intellectual Property because commercial success is on the horizon. After all, your rivals are always keeping an eye on you. But how can you go about effectively safeguarding your innovation?
Here are some ways in which you can protect your innovation:
Patent
In that scenario, filing for a patent may be the best approach to safeguard your intellectual property. You will have exclusive rights to your invention for 20 years if you obtain a patent. To be eligible for a patent, your invention must fulfil the requirements of originality, innovative step, and industrial applicability. Patent law in India is governed by the Patents Act of 1970, the Patent Rules of 1972, the Patent Rules of 2003, and the Patent Amendment Rules of 2016.
Secrecy
In certain instances, it is thus preferable to keep it hidden. Especially when it’s hard to determine what the innovation entails from the final result. This makes it more difficult for a rival to duplicate your idea. Processes are sometimes more difficult to keep hidden than tangible products. However, for a tangible product, secrecy might be appealing.
The benefit of secrecy is that you are shielded in theory indefinitely and do not have to reveal anything.
Design protection
An article’s visual characteristics are protected by a registered design. Visual characteristics must sometimes be protected in order to prevent others from creating a product that appears the same or similar. If the product’s look is crucial to its economic success, a registered design should be filed. Buyers aren’t influenced by product form for some items, such as industrial equipment. Product form protection, on the other hand, may be crucial for consumer items.
If your innovation’s design is the most distinguishing feature of your product, you may be eligible for design protection. The Designs Act of 2000 (“the Act”) is a full code in and of itself, with absolute legislative protection. It safeguards the aesthetics of non-purely utilitarian items. A design is protected for a period of ten years. It can be renewed for a charge every five years. ‘Novelty’ is the most essential criterion for design protection. Furthermore, the design may not be technically feasible.
Conclusion
Intellectual Property Rights are rights provided by the Indian government. Intellectual property is concerned with intellectual activity in the domains of industry, science, literature, and the arts. These rights protect intellectual property creators and other producers by providing them time-limited rights to regulate their usage. For a set length of time, the inventor is generally granted exclusive rights to exploit his or her inventions and innovation.
Although the term “invention” and “innovation” are generally termed the same there is a difference between them. In the simplest terms, innovation is something that adds value to the invention. When you want to protect your invention, you can easily go for Intellectual Property Rights, (Trademarks, Copyrights, Patents, etc.) but when you want to legally protect your innovation then, there are certain characteristics for that and the said innovation has to fulfil all the criteria, otherwise, the said innovation cannot apply for legal protection.
References
- https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm#:~:text=Intellectual%20property%20rights%20are%20the,a%20certain%20period%20of%20time.
- https://brewerlong.com/information/business-law/four-types-of-intellectual-property/
- https://www.business.qld.gov.au/running-business/protecting-business/ip-kit/browse-ip-topics/new-products,-processes-and-inventions-patents/five-requirements
- https://www.worldtrademarkreview.com/anti-counterfeiting/india-4#:~:text=In%20India%2C%20trademarks%20are%20protected,and%20the%20Companies%20Act%201956.
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