Protecting Your Intellectual Property in India

Rohit Singh, Head - Patents, Abu-Ghazaleh Intellectual Property (AGIP) Headquartered in Amman, Abu-Ghazaleh Intellectual Property is a Legal Services company specializing in the areas of registration, litigation, prosecution, licensing & counseling related to trademarks, patents, industrial designs, copyrights, and domain names.

Times have changed and we now find ourselves living in a knowledge based economy. We have swaddled ourselves in technology - from cell phones, smart watches, automatic cars, 3D printing to altering the genetic make-up using CRISPR. The value of Intellectual Property Rights(IP)is far more critical now than it was in the past. The success of a company is often measured by the strengths of its IPRs - which can include Patents, Trademarks, Designs and Copyrights.

Telecommunication giants like Apple and Samsung have been involved in countless IP litigations all over the world. After years of wrangling in the courts, in November 2017, Apple had won $120 million from Samsung in a patent dispute which revolved around Apple’s patented technology - slide to unlock. Samsung had infringed various patents owned by Apple.

Years of IP disputes between Apple and Samsung reveal the critical importance of protecting your IP. Each IPR protects a certain aspect of your business, and it is extremely crucial to understand the working of technology in the IP landscape and how it can be leveraged at the right time. There are various kinds of IPRs, but the two most seminal are Patents and Trademarks.

Patents protect the technology by defining your boundaries. Unlike Europe and U.S., which allow claiming a use of a substance, an applicant can protect either a process or a product in India. Patent is a negative right and gives its owner a monopoly to make, use, sell, offer for sale or import the patented technology. A patent is granted for a period of twenty years provided the technology meets the sine qua non requirements of patenting - novelty, inventiveness and industrial applicability.

The technology should also be patentable and not fall within the clutches of non-patentable inventions. India has a long list of these, which include new form of a known substance, use of a substance, an admixture, method of treatment /diagnostics, software, traditional knowledge or inventions which are considered prejudicial to public order or morality.

Government provides an exclusivity of 20 years to a patent owner in lieu of the
disclosure of technology. This disclosure goes into public domain after a patent application is filed. This is when Patenting encourages innovation by enabling people to develop the technology further or look for ways to bypass the legalprotection. After the patent expires, the technology falls in public domain and as a result, people are free to exploit the technology how so ever they desire without running any risk of being sued.

IP assets are a huge source of value and need to be managed as part of a business strategy

Patenting is a cost and labor intensive process. Therefore, companies must conduct patentability searches before investing heavily in their R&D wings to avoid reinventing the wheel. This is not enough, as the drafting and filing of a patent application is the most crucial step and must be entrusted to a competent patent attorney/agent - who is well aware of various nuances of the patent legislature.

Applicants of a patent application need a strategy for global filing of their patent applications and they need to choose between Paris Convention and Patent Co-operation Treaty(PCT)routes. In India, it takes around 5-8 years for a patent to be granted and this period will reduce to 3-4 years by 2021.

Freedom to use your technology is equally important before launching your products in the market. This ensures that a company is not infringing on an unknown patent. If a patent of potential risk is uncovered, then the best way forward is to engage in cross-licensing. In India, patent applications can be opposed or revoked and there are various provisions which can be exploited against the patentee. A compulsory license for non-working can also be issued by the Government.

The influx of technology in our day-to-day life is so over whelming that we tend to associate certain technological marvels with specific brands. This is where trademark laws have a huge impact in terms of branding and acquiring a distinctive character because a trademark helps in cutting through the clutter. Trademarks are extremely important in promoting global economic growth and enable consumers to make a confident decision.

Trademark (TM) is the most distinctive symbol /image/logo of your brand which the consumers use to identify and segregate from others. In legal parlance, a ™ distinguishes your company’s goods and services from those of others. A ™ may comprise of letters/numbers/words/designs, colour combinations and 3D features such as shape & packaging of goods, and non-visible signs such as sounds or fragrances can also be protected under a trademark in India.

A Trademark is registered for a period of 10 years in India and can be renewed indefinitely. Business owners must get their trademarks registered in early stages of setting-up their business. In fact even if the ™ is not used, an application for proposed use of a mark can be filed.

Like patents, due diligence must be conducted before registering a Trademark to avoid an infringement. Unlike patents, it is not mandatory for a business enterprise to register its Trademark. As the business grows, the tendency of encountering fakes also increase. So, one has to stay vigilant to identify any potential infringements to avoid any confusion amongst the consumers, as it can lead to brand dilution.

Consumers often refer to a mobile phone manufactured by Apple as an iPhone, simply because it has garnered this huge global reputation. The consumers do not have to struggle to identify whether a phone is manufactured by Apple or not - simply by looking for a half-eaten apple on the phone.

Companies can increase their competitiveness by investing in IPRs and exploiting them fully. IP assets are a huge source of value and need to be managed as part of a business strategy. They can catapult a start-up to a leader in its field of trade.