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Tuesday, 19 July 2016
Sunday, 10 July 2016
COMMERCIALIZATION OF INTELLECTUAL
PROPERTY IS NEEDED
FOR FAST ECONOMIC GROWTH
Adv. Dr. N. D.
Choudhari
Legal Consultant
Maharashtra State Biodiversity Board.
nchoudhari@gmail.com
Government of India recently started campaign “Make In India” and
“Creative India; Innovative India”, “Digital india”, “skill India”, “Start up
India”, “Smart cities” and other new initiatives in the near future for fast
economic development on par with developed countries. We require next
generation of high and advanced technologies for industrial development
.Developed countries are reluctant to
part with their advanced technologies due to fear of infringement on their
intellectual property rights. The patent act 1970 and patent rules 2016 ,the Design Act
2000along with Design Rules 2001, The Trade Marks Act 1999 along with The trade
Mark Rules 2002, The Geographical Indications Of Goods Act 1999 along with
geographical Indications of Goods Rules
2002, the copyright act 1957 as amended in 1999, the IPR Appellate Board Rules
2010, the Patent (Appeals and applications to IPR Appellate Boars)rules 2011,
Biological Diversity Act 2002 provide safeguard to patent owners against
infringement as per Marrakesh International Treaty 2013 , Madrid protocol. The patents acts are revised after the
TRIPS Trade Related Intellectual Property Rights Agreements) Agreement and are
fully compliant with it. These patent laws and various judicial decisions
provide a stable and effective legal frame works for protection and promotion
of IPR. On satisfaction on this point USA, Russia, France, Germany, Briton,
Israel are recently ready to transfer advanced technologies to India to
manufacture defence, electronics and other goods in India.
At the same time India has rich
traditional medicinal knowledge which were invented by our Rishi Munis several
years ago but it exists in diverse forms. Sometimes our traditional knowledge
is passed on verbally from one generation to another .Some foreign countries
took advantage of this fact and tried to get patent in curcuma, Basmati rice,
Neem and other traditional medicines. It is important to protect such
knowledge, be it oral or in codified form, from misappropriation, while
providing space and environment for dynamic development of traditional
knowledge for benefit of mankind. So legal framework should be utilized to
enhance transparency and efficiency in the administration and enforcement of
IPR laws .Moreover our educational institutions carry out research but not filing
patent and commercially utilize it for want of finance and awareness. The
National IPR policy 2016 covers all these impediments and hurdles.
Our researchers particularly in universities make hurry to publish the
research papers in international magazines to get promotion in their careers.
Patent act 1970 debars the allotment of patent on innovation if the research
data is already published in the magazines. The university should give
incentives or promotion on the basis of patent sanctioned but not on the
publication of research papers. Moreover in developed countries special
agencies are working to collect the research data from the international
magazines. On the basis of research data more advance research in done by
foreign countries and get the patent on their name. Developed countries are
having higher edge over develop countries because of more intellectual property
rights. If we want to convert India as developed country then more stress
should be given on applied research and more patent should be secured.
The Intellectual property rights
include patent act, Design Act, Trade Marks Act The Copy right Act, The
Geographical indication of Goods act. A Patent is an intellectual property
right relating to inventions and is the grant of exclusive right, for limited
period provided by the Government to the patentee, in exchange of full
discloser of his invention, for excluding others from making using, selling,
importing the patented product or process producing the that product for those
purpose as per the patents Act 1970. As per National IPR policy 2016 an India
where creativity and innovation are stimulated by Intellectual Property for the
benefits of all and India where intellectual property promotes advancement in
science and technology, arts and culture, traditional knowledge and biodiversity
resources, and India where knowledge is the main driver of development, and
knowledge owned is transformed into knowledge shared. Intellectual property
maybe commercialized by sale or assignment or by entering in to various type of
contractual business relationship such as licensing. All academic institution
or innovative business or starts up may not have the necessary financial or
technical capabilities to take an invention or creation all the way to market
by them self.
For commercialization of intellectual property in to market place
requires, time, funds, creative efforts, persistence, innovative efforts, focus
management of the entire process from idea to market. To obtain commercial
returns from IP requires the existence of customer and entity controlling the
manufacture and sale of resulting products. The quality of IP management is
required for commercialization of patents. The educational institution or stars
up lack the finance and quality management to realize patent value.
Patent owner can commercialize
their intellectual property by two chief legal vehicles i.e. to sale or assign
the IP and to license IP right. When intellectual property rights are assigned the
assignee acquires ownership of all rights which previously belong to the
assignor. The assignor may take license back form assignee. The advantage of
assigning is that the patent is sold for lump sum and get the value immediately
and not to wait for 20 years with no further risk to maintain the patent. The
assignor do not have to monitor the assignees exploitation endeavours.
Assignment does not provide an opportunity to partake in additional profits.
The assigned patent may neverly properly exploited or may not be successful in
the market place.
A publication organization or SME (Small and Medium Business Development
Chamber of India), starts up, may not be in position to under take the direct
exploitation of IP rights, so they preferred licensing of IP rights. There are three
main types of licensing agreements. The exclusive license permits only the
licensee or his authorised agent. The sole license permits the licensee to work
the intellectual property, prevents the grant of additional licenses but allows
the owner to also work intellectual property. A exclusive license allows the owner
to retain the right to exploit the licensed property as well as the right to
grant additional licenses to third parties. Several licensees and the owner
have the right to use the intellectual property. Licensing help a company to
make financial saving in R & D and effectively eliminate the risk of spending
valuable resources going down and R & D. In “Make in India programme” many
Indian companies are taking licenses for next generation technology from USA,
Russia, Germany, France, Briton, China to manufacturer defence, automobile ,
electronics and other consumer products. By getting license starts up, SME
companies can deliver high technology product in short time and there by
reducing import cost.
Benefits to licensee is saving on R & D investment, elements risk
associated with in house R & D, reduces time to market, ensures that
products are leading edge at new products line to portfolio The strategic
partnership can also be formed. Benefits
to licensor is to create new revenues scheme, creates new revenue streams by
realizing the full potential of the new technology, expands customer awareness,
helps overcome the challenge of establishing the technology in foreign
countries and lower costs and risks, provides savings on distribution and
marketing expenses, provides a means of avoiding litigation The strategic
partnership can be formed in licensing deals ,the owner rights is generally
remunerated through lump sum payments or through recurring royalties, which may
be based on sales volume of the licensed product or on net sale.
IPR enforcement is pre condition for successful commercialisation. Once
the new product is launched in market for sale and if it is successful in
market, the competitors will attempt to make a competing, cheaper product with
identical or similar features. It will cause financial pressure on the company
who have invested money on R & D for creating the product. The exclusive
rights are granted to the patent owner to obtain injunctions from National
courts to prevent or stop the infringing activity . Orders from the courts can
be obtained to have infringing goods seized and destroyed and to obtain information
as to the persons from whom the defendant
in turn has supplies of the infringing material and the persons to
whom the defendant in turn has supplied the
infringing material. Courts have power to effectively freeze the defendants
assets. The complainants has the
opportunity to claim damages or compensation for lost benefits.
National Institute of Intellectual Property Management civil lines Nagpur
- Government of India Training on
Patents, Designs, Trademarks and Geographical indications provides patents and
also training to Businessman, Professionals, Educational institutions, forest,
Agriculture, police , Judiciary and other government department .All the
persons and institutions come forward
and make public awareness regarding intellectual property rights to benefit of
the masses and to achieve “Make In India Programme” successful. I appeal to all
researchers in universities, starts up, companies to give more importance to
applied research and take patent on innovation as much as possible to convert
India in to developed country.
Friday, 29 January 2016
I have given power point presentation on Access Benefit Sharing under The Biological Diversity act 2002 in front of august gathering of Hon high court judges , Aurangabad,Senior Division Judges,JFMC in Forest Academy chandrapur.Biodversity Management committee will get 0.1%to 0.5% of total turnover for commercial utilization of bioresources The ABS will be utilized for sustainable development of bioresource
Adv Dr N .D. Choudhari
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