Interview of Adv Dr N D Choudhari regarding plantation technique i Times Of  India

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.