INTELLECTUAL PROPERTY RIGHTS –BRIDGING THE GAP

Introduction

Economies are increasingly becoming dependent on the production, distribution, and use of knowledge than ever before. The success of an enterprise, as of national economies, is determined by its effectiveness in gathering and using knowledge and technology. Only that knowledge that is usable and protected will create wealth. Any country that wishes to achieve economic stability and growth needs a strong system of protecting and promoting intellectual property, which should induce trust and confidence in investors and stimulate creation. Countries that have realised the importance of intellectual property and its protection as a key tool for economic development have given intellectual property policy a prominent place in their national economic development plans. When linked to the development of human capital, intellectual property becomes a powerful driver of economic growth because it results in educated, skilled, and motivated individuals. It is this dynamic combination that stimulates creativity and innovation—it promotes investment, generates revenue, and helps prevent “brain drain” that plagues so many countries today. Most industrialized countries are increasingly trying to become research and technology intensive by formulating appropriate corporate strategies acknowledging the country's trade priorities. In countries where laws on IPRs are not strictly enforced, there is increased production of counterfeit and pirated goods not only for sale in domestic markets but also for export.

However, despite the importance of intellectual property to wealth creation and economic development, a gap continues to exist between many developed and developing nations in terms of the ownership and use of intellectual property assets. This is certainly not due to any lack of creativity or innovation. The gap is largely due to ignorance about intellectual property and its potential as a tool for economic growth. The purpose of the patenting system is to create an atmosphere where one’s inventions leads to another’s and confer the benefits of all inventions on the people all over the world.

In developed and developing countries alike, there is often a lack of understanding in certain sectors of how intellectual property contributes to wealth creation more so in the case of small and medium sized enterprises (SMEs). Given that SMEs are vital for the growth of any economy, much of our effort in this area holds special importance for the high-tech industries—after all, every high-tech business, no matter how large or successful, no matter how many patents they might hold, start out as small businesses.

Concerns of the developing world on IPR

Most of the problems that the developing countries face in terms of implementing IPR laws arise from weak physical infrastructure in terms of inadequate IP offices, inadequate intellectual infrastructure, poor public awareness, and lack of government policies that are not in tune with the times. Many R&D institutions and industrial firms in the developing world have so far focused on imitative research or reverse engineering, and have depended heavily on borrowed technology and, therefore, have not been able to create a productive national IP portfolio. One of the concerns of the developing world is that the process of globalization is threatening the appropriation of the elements of this collective knowledge of societies into proprietary knowledge for the commercial benefit of a few. An urgent action is needed to protect these fragile knowledge systems through national policies and international understanding linked to IPR, while providing its development and proper use for the benefit of its holders. We need a particular focus on community knowledge and community innovation. To encourage communities, it is necessary to scout, support, spawn, and scale up the green grassroots innovation. Linking innovation, enterprise, and investment is particularly important in this regard and new models and new thinking on IP will have to be envisioned to accomplish this. Therefore, the need for creating such an atmosphere in developing and under developed countries need not be emphasised further.

India's IP System: The Challenges

Indian contribution to the pool of international patents today is negligible and needs to be increased substantially.  Our research and development efforts have not taken cognizance of the vast amount of India's intellectual wealth.  It is imperative that we use this wealth systematically and intelligently.  Because of comfortable protection in the past, we have not been concerned about the possible competition that we will be facing in the new era of competitive research.  Creating top class professionals in patent writing will be an urgent requirement.  Today, our knowledge about writing and reading patents is very poor.  We can neither properly protect our inventions nor understand the implications of the patent granted to our competitors.  Thus, we may have a good invention, but we cannot effectively protect it by patents filed abroad as many of the patents written by our professionals could easily be circumvented.  How do we create, within our system, a cadre of top class professionals, who will fight these battles?  These are the burning questions.

We must realize that patent attorneys are one of the highest paid professionals in the West. As an example, organizations such as the Certified Institute of Patents Agents in UK produce high quality patent professionals. An aspirant desirous of making patenting as his profession has to pass a high competitive examination, which consists of papers in science, engineering, drafting, infringement, and a host of related areas. We have no such systems in India and therefore have move quickly to establish such systems. Manpower planning for Intellectual Property Rights (IPR) protection will have to be handled on a priority basis. China has set up 5,000 patent training institutes and India too will have to move with a sense of urgency on this front. Our graduates coming out of engineering and technology streams have no idea about IPR, it must be made a compulsory subject and key elements of IPR should be introduced in our university courses.

Judicious management of patent information will require well-structured functioning of information creating centres, information documentors and retrievers, information users, IPR specialists, and information technology experts. The appropriate and selective use of information aided by the state-of-the-art tools of information technology is absolutely essential in the management of this process. Patent information scientists will have to be trained to make the best use of information technology and local and international databases effectively and provide services to potential users in all sectors of business. There is an urgent need for manpower planning for IPR protection. We have to set up patent training institutes and introduce specialized courses in the existing institutions serving the industry. Apart from this we should learn the judicious management of patent information.

We in India are trying to synergise our strengths to face global constraints and competition wherein both component-based and service sectors, inclusive of SMEs, need to build a corporate image with commensurate commitment. Today, only the fittest will survive in the world of business. In the past, under the controlled economic policy of our nation, we survived under various protections. It is for this reason that India did not feel the necessity to modernize its industry & service sectors to compete internationally. An effective IP system is what a developing country like India needs to have in place, which is capable of catapulting India to great heights. The Indian industry will have to recognize the relevance of patent information in identifying new business opportunities, creating business strategies, and planning of R&D programmes, including technology and business forecasting. Indeed, a proper use of patent information can help one in identifying state-of-the-art technologies and global expertise, technology shopping and investment planning, avoid duplication, monitor competitors, and ward off possible infringements. Patent documents can also help in planning for technology transfer, striking joint ventures, etc. None of this, by and large, happens in Indian industry today. This needs urgent attention and immediate change.

India has rich natural resources like medicinal plants, etc. India also has an established Ayurvedic and other herbal systems of medicine. It is possible under the new patent regime to protect the active ingredients responsible for the effectiveness of these systems if they were not hitherto known. If new compounds or extracts are isolated from different plants, which have distinct and important qualities, then it will be possible to obtain appropriate protection. Even if the composition of the extract is not identified, it is possible to obtain protection. At a later stage, if specific ingredients of the extract are isolated, identified, and characterized and if they are new, then product protection for these new compounds can also be secured. India will have to launch systematic efforts to create wealth out of its biodiversity.

In India there is a special establishment called Patent Information Service functioning from Nagpur in addition to the four patent offices at Calcutta, Delhi, Mumbai, and Chennai where patent applications are processed and patents granted. Till recently patent information provided either at the patent office or at the office of the patent information service was mostly related to the existence and status of patent applications and the status of patents in working. The information no doubt covers patents in India and around select countries. Now that information technology has entered the field, this service must be universalised. The patent information service must also be extended to all patent documents in addition to information on status. Recently the World Intellectual Property Rights Organization has taken up this task in the case of Trade Marks in order to make the search for identical marks easier for anybody and everybody wanting to register a Trade Mark. A similar effort is suggested in the case of the patent information as well, so that all the patent documents, which describe the inventions and explain its working, may be available to every interested researcher.

Patent documents are demonstrations of inventions and will help entrepreneurs in the field where they could take the best advantage of this for taking up research. Till now the applicants for the patents were filing only complete specifications in writing, together with sketches and other data. They were not submitting any videocassettes through which the workings of the inventions are explained. The lack of this aid forces the researcher to go in for reverse research which is time consuming and costly. Therefore, it is suggested that at the time of actual grant of the Patent by the Patent officer the patentee may be required to file a video cassette demonstrating the invention and the same may be displayed at all Patent information offices including the World Intellectual Property Rights Organization. Entrepreneurs all over the world start with ideas and hopes. It is for the patent information officer at the WIPO to provide him all the technical information demonstratively explained, together with business prospects so that he is enabled to take the next step which may swing him into a leap. Once protection of Intellectual Property becomes a worldwide obligation, spread of knowledge must be universalised through international conventions and treaties and should be made available on some token payment, if not for free.

Over a hundred years ago Indian entrepreneurs were advertising their goods at railway platforms and road junctions in every town and village. The goods in question were medicinal preparations based on traditional medicine. The medicines were professed to have divine origin and the entrepreneur was the agent of divinity. They were called ‘nectar from heaven’ and remedies suggested were universal cure for women’s diseases, protection, prescription for children, and painkillers. The entrepreneurs named their brands after their own personal names. Brand marketing was thus a means of business success. It is of interest to note that the same brands are still surviving in India as household names perhaps more popular than the worldwide elixir Coca Cola. Therefore, businesses and brand names go together. Industrialisation entered India through private enterprise followed by controlled or mixed economy as it is called. In view of the globalisation of trade, the whole economy is being freed from government interference. In the free market the new creator, brand names, and trademarks are becoming popular once again in view of the new situation created.

Since trademark is a mark, which should be distinct and should speak for itself and its superiority, there is no way of marketing products without trademarks particularly when trade is globalised. Local traders are inevitably pitted against global giants. Movement of goods from one town to another, one state to another, one country to another, and even over several continents has been going for several ages even before Columbus. What is new in globalisation today is the link, which is established among different corporations, governments, and international establishments. In view of this, trademarks have become so widespread worldwide that they are threatening both new and smaller enterprises.

In the first instance, the entrepreneurs have to devise and develop new trademarks which should look new to any person anywhere in the world and they should devise a means for popularising them through an appropriate medium in an appropriate manner. While doing so, several of them adopt their own trademarks which may look similar to already existing trademarks. For adopting their own trademarks, entrepreneurs are being threatened by the holders of internationally registered trademarks for alleged violation of their marks. There was an instance, when a tiny circus company sought to call itself as Firestone Circus, the Firestone Company got it closed by the orders of the Bombay High Court even though the circus and tyre manufacturer had no similarities or conflicts of trade interests whatsoever. Similarly, Channel V, the Australian based TV company got a tiny single proprietor shop selling cassettes closed on the grounds of adopting a similar name. There are several cases where manufacturers of one type of goods claiming injunction and compensation against insignificant dealers. The point raised here is where MNCs acquire trademarks accepted universally as signifying a certain product and where these marks also become generic, they shall not be permitted to threaten others using similar marks and cold shoulder other and smaller enterprises, otherwise genuine and bonafide, unless their use was proved to have caused financial losses to the reputed owners of the trademark. A trademark whatsoever be its strength in the market shall not be permitted to acquire sovereignty over the entire market. It is high time that this kind of domination is put an end to by devising laws or conventions appropriate for this purpose.

Conclusion

India was a member of GATT and in fact, India is one of its founder members and India’s views on Intellectual Property Rights are positive. Though India participated in all the rounds of GATT since its inception over 50 years ago, she has not been entering into any agreements with other countries in respect of Trade & Tariffs other than those in accordance with its sovereign status. But the problems for India started when IPRs came to be included in the GATT treaty and becoming a member of WTO was made compulsory. Intense controversies on the wisdom of India becoming a member of the WTO arose as a result. The apprehensions of developing countries like India are not without any lack of reason or foundation. Having had the experience of the colonial rule, developing nations apprehend that the invasion of MNCs might bring back imperialism in another incarnation, but the times now are different. There is a rising confidence among entrepreneurs that this country can withstand any competition and has the capacity to turn the foreign association to her advantage.