June, 2009: The intellectual property laws have been codified under different statutes by the Indian Parliament to deal with the individual issues relating to Copyright, Trademarks, Designs and Patents including few other aspects such as Geographical Indications, Plant varieties and Bio-Diversities. However, there are certain intertwinned provisions for Copyright, Trademark and the Design laws, e.g. a trademark can be registered along with the logo with the trademark authorities and the logo can also be registered as an artistic work under the Copyright Act. Similarly any work of art which resembles a trade name can be registered under the copyright law only after getting a no objection from the trademark authorities. There are also provisions under the Designs Act which prohibits registration of a registered Trade Mark or any artistic work as defined under the respective laws. However, a registered design gives a Copy Right during the validity period of ten years to the registered proprieter of the design.

The subject matter relating to appeals are under one authority being the Intellectual Property Appellate Board (IPAB) which has the jurisdiction concerning Trademark, Geographical Indication and the Patent related matters. The subject matter concerning copyright and designs are still outside the purview of IPAB. However, the subject matter for relief in the form of damages or injunction against infringement for trademark or patent is still within the jurisdiction of the Courts. The appeal before IPAB relates to matter concerning any order or decision of the Controller of Patents or of Trademark Authorities. Section 104 of the Indian Patents Act, 1970 lays down the scope of jurisdiction of the Court and specifies that any suit for any relief for a declaration or for infringement shall be instituted only to a district court or to a High Court. However, where a counter claim for revocation for the patent is made, the suit along with the counter claim shall be transferred to the High Court for decision. In other words, one has to be very careful about jurisdiction for any subject matter concerning appeal or relief before either IPAB or the Courts.

The Indian Patent Act provides for pre-grant opposition as well as post-grant opposition of a patent applied for or granted. The European and the US Patent Laws do not have similar provisions for a pre-grant opposition. However, there is a scope for a Third Party Observations to be filed before the Examiner in the European Patent Office (EPO) as per Article 115 of the European Patent Convention. Such Third Party Observations can be filed by any individual or entity from any part of the world either by way of reference to the prior art or with substantive arguments along with prior art references to enable the authorities at the EPO to make a judgment about the novelty or the patentability of the invention. In other words, although there is a general perception that there is no window for pre-grant opposition in Europe and other advanced countries but the provision for third party observations is a good substitute to a large extent in EPO.

Intellectual Property Laws and management of intangible asset are emerging areas for the professionals. There is a need for Academic Institutions and Universities to incorporate intellectual property as one of the optional subject in their curriculum in order to enable and empower the students to meet the needs of the society. ITAG has undertaken the task of providing training and consultancy in the field of IP Laws and IP Management as a total solution provider under one roof with a team of experts in technology, law and commerce. ITAG believes that the technology and research can become meaningful and effective only with the IP Commercialisation and by converting IP into IPR.

--Dr. D. R. Agarwal