Discuss the Appeal Mechanism available in India in relation to IPRs.
The tradition of scholarship and
intellectual creativity in India goes back to a few millennia. Yet the concept
of Intellectual Property Rights in the modern sense is rather new and would
appear to have no cultural moorings or sanction in our country.
The first Indian statute on patents
was passed in 1856 granting some exclusive rights to inventors for 14 years. It
had to be re-enacted with some modification as the Act of 1859. It granted to
inventors of ‘new manufacture’ exclusive rights to make, sell and use the
invention in India, or to authorise some one to do so. Its scope was expanded
to include designs, under ‘the new manufacture’ in the Patents and Designs
Protection Act 1872.
The Indian Law to grant and
regulate protection of intellectual property in variou fields of IP has now
been aligned to the s requirements and provisions as visualised under the TRIPS
Agreement of the WTO.
Appeal
Mechanism
Discuss the Appeal Mechanism
available in India in relation to IPRs. In
keeping with its status as a major, vibrant economy, and as an active
contributor i the realm of knowledge and creativity, India, though a relatively
late comer in the IP game, has strong IP Laws and effective enforcement of
IPRs. All the Acts dealing with IP in its various forms are aligned to the
TRIPS Agreement making appropriate use of flexibilities available under the
TRIPS. They are fully alive to the role in growth and development consistent with
societal and environmental concerns.
Patents and industrial designs are
required to be registered under the relevant Acts to claim any legal protection
of IPRs. However, copyright and trademarks (in India) have no such requirement.
Their registration is voluntary, but in case of legal disputes registration
carries distinct advantages. As copying, counterfeiting and forgery have become
easy and rampant and economic consequences of infringing a copyright or using a
brand name (trademark) in an unfair way may be huge, it is advisable to get the
copyright and trademark duly registered.
The provision of appeal against a
decision/order of the highest controlling authority i only fair and necessary
under a sound legal system. The appeal earlier used to lie with a High Court of
appropriate jurisdiction. However, the domain of IP being highly specialised,
which was often unfamiliar to a High Court judge, the need of a specialis
member on the reviewing bench was always felt.
Further the disposal of an appeal
in a High Court was time-consuming and involved high cost of litigation. Having
regard to these considerations, the Trade Marks Act, 1999, established an
Appellate Board (AB) having advocates who have been active in the field of
Trade Marks for 10 years. A bench of the Appellate Board will consist of a
Judicial Member and a Technical Member. The bench will sit at a place decided
by the Central Government.
The Appellate Board for trade marks
is also the appellate authority under the Patents Act, 1970, as amended by the
Patents (Amendment) Act, 2002. It is also the Appellate Board for geographical
indications. The Technical Member of the AB for patents cases is a person
experienced in patent law to consider appeals against the decision o
Controller. He is a person who has been Controller, or has exercised his
functions, fo 5 years, or he should be an Advocate practising law relating to
patents and designs for 10 years.
Discuss the Appeal
Mechanism available in India in relation to IPRs..
India has enacted
the following IP Acts:
1. The Patents Act, 1970, as amended by the Patents
(Amendment) Act, 1999, an the Patents (Amendment) Act, 2002
2. The Copyright Act, 1957 as amended in 1999
3. The Trade marks Act, 1999
4. The Designs Act, 2000
5. The Geographical Indications of Goods (Registration and
Protection) Act, 1999
6. The Protection of Plant Varieties and Farmers Rights Act,
2001
7. Integrated Circuit Layout Designs Act, 2000
8. The Biological Diversity Act, 2002
Conclusion :
The law relating to property and intellectual property has
similarities regarding the nature the mode of acquisition, the nature of rights
conferred, the commercial exploitation of those rights, the enforcement of
those rights and the remedies available against infringement of those rights.
Property rights include not all a person’s right but only his corporeal
property rights consisting of material things. But intellectual property is in
the nature of intangible incorporeal property. The rights of intellectual
property are created by statute.
The invention may relate to a new product or an improvement
of an existing product or a new process of manufacturing an existing or a new
product. The acquisition of the monopoly of intellectual property, the
conditions to be satisfied for acquisition, its duration, the licensing of this
monopoly rights or their assignment to others are strictly governed by the
statutes.
Discuss the Appeal
Mechanism available in India in relation to IPRs.
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