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Intellectual Property Issues: A Comparison Between India and the U.S.
chillibreeze writer — Saudha
What is Intellectual Property?
Creative outputs of the human mind, like novels, music, motion-pictures, industrial designs that are used for commercial purposes etc. fall under the title of Intellectual Property.
Intellectual Property as a whole may seem to consist of original creations, but these creations themselves are divided into two main categories depending upon their nature – those creations being used for Industrial purposes and those creations that are Copyrighted material.
Some quick definitions
Industrial Property consists of patents or inventions, trademarks, industrial designs and geographical indications of source.
Patents are rights that are granted exclusively for inventions – inventions being a product or a process. The process itself must be a whole new approach or method to do something.
A trademark on the other hand is a symbol or a word or a name that is put on goods in the marketplace that indicates its source. Service marks are given to services as opposed to products – the services being provided by the same source.
Trademark rights ensure that the symbol, word or name that identifies the source of the product is not duplicated – though the product can be marketed under a different mark.
Copyright has been devised to protect the authors of original works of art, music, film as well as literary outputs.
The history of the Patent System
In India , the Patent system was instituted by the British based on their own patent system in 1856, to protect inventions. This act was gradually modified in the years to follow.
Intellectual Property Rights as a vital law to protect inventions and artistic creations was adopted after India becoming a signatory in the TRIPS (Trade- Related Aspects of Intellectual Property Rights) agreement initiated by the World Trade Organization, the WTO, which was signed in Marrakesh, Morocco, on 15 th April 1994.
These patents and trademarks are granted in India by the Patent offices in the metropolitan citied of Delhi, Mumbai, Chennai and Kolkata, which come under the jurisdiction of the Office of the Controller General of Patents, Designs and Trademarks. Patent applications can be filed through post or in person at these offices. The Office has revamped the whole IP system and a whole new organization called IP India or Intellectual Property India has been established.
How the Patent Act has benefited us
The adoption of the TRIPS agreement has made India ’s IP system more ironclad, ensuring that the creative and scientific communities are given the right kind of assurance that their life’s work will be protected.
Further amendments to the Patent act has also ensured that traditional knowledge of the Indigenous sciences – especially herbal and Ayurvedic medicines, which had not been patented so far are also in the process of being registered as local, traditional knowledge. This began after reports of patents were requested by citizens of other nations, for the indigenous medicines and herbs of India . These medical preparations or herbs cannot of course be registered to individuals or even pharmacological companies since they are the empirical knowledge of thousands of years of research and treatment in traditional societies.
But the fact that Intellectual Property rights are being given more importance and their necessity is being highlighted as more and more research is being done in various fields of learning in India gives hope that Indian inventors and creative minds that help society to grow can indeed work in this country knowing that their government intends to give them every sort of support possible.
The United States on the other hand has a had a long tradition of encouraging inventions and the United States Patent and Trademark Office (USPTO), which is an agency of the Department of Commerce is the governing body that oversees the IP rights issues in the country.
How to take that first step
To apply for a patent, one has to fill in a form and send it in to the USPTO with the stipulated fees. After a maximum period of 18 months, the patent is granted if approved. Trademarks and Copyrights as well as domain names are also to be registered at this office.
In case of violation
In the US, infringement of patents, trademarks and copyrights are much more litigious issues than in India, where the Patent system and Copyright rules were only recently overhauled. While the violation of copyrights and other IP rules often lead to large amounts of litigation in the US, India is still in its infancy with regard to the enforcement of the TRIPS agreement.
India has succeeded to a large extent in clearing the market of pirated films and music. Software is still a thorny issue and one that has caused a lot of rifts with other world economies that are major IT players. In a study commissioned by the US government, the percentages of pirated material categorized by Industry in the year 1997 were as follows:
Motion Pictures – 80%
Music and Sound Recordings – 40%
Business Software Applications -76 %
Entertainment Software Applications – 82%
A loss of around $300 million was calculated in 1997 alone to US businesses. Though raids on merchants happen on a regular basis, the fact that the enormous population and the proliferation of computer technology in a nation as large as India has made institution of the copyright laws very difficult.
Another bone of contention between the US and Indian governments has been the pharmaceutical industry. Patent violations by Indian pharmaceutical companies that produce drugs at lower prices have been regulated more strictly since the full ten-year transition period granted by the TRIPS agreement lapsed on January 1, 2005. Section 84 of Patent Act 1970 and the Clause 35 of Patents Act (second amendment) Bill 1999 states that compulsory licenses may be granted to manufacturers if a certain product is available in the market to the public only at unreasonable prices.
The US Health GAP coalition have demanded that such consideration as the state of the economy of the country and the health concerns be regarded as recommended by President Bill Clinton on December 1, 1999 when it comes to formulation trade policies and investigating infringement of Patents and Trademarks.
But following the conversion of The Patents (second Amendment) Bill 1999 into law, the Government of India and especially the office of Intellectual Property India is making sure that IP issues are sorted out and the office plans to fast-track Patents, Trademarks and Copyright applications, improving connectivity between all the major patent offices and networking the whole system as agreed in TRIPS agreement and on the recommendations of the WIPO/UNDP.
An Expat (Foreign) American's Perspective of Life in India with Reference to Bangalore
For more information:
The USPTO website: http://www.uspto.gov
The Indian Embassy at Washington DC – article on IPR in India :
Centre for Intellectual Property Rights, Research and Advocacy:
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