[The_Hindu/IPR-History]Intellectual Property? Right!

Rakesh 'arky' Ambati rakesh_ambati@[EMAIL-PROTECTED]
Sun Apr 9 08:04:06 IST 2006


Morning,

In case you missed reading the article. 

Cheers

--arky 


Date:09/04/2006 URL:
http://www.thehindu.com/thehindu/mag/2006/04/09/stories/2006040900150200.htm

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[1]Magazine

MILESTONES

Intellectual property? Right!

T.V. MALAVIKA

The first Intellectual Property Rights legislation was
enacted in India 150
years ago. A look at the progress since then.

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Although the concept of intellectual  property was
very old, there  appeared
the need to harmonise  laws to facilitate
international  trade and the  free
flow of technology. This became necessary because it
was difficult to obtain
sufficient protection  in other  countries  of the 
world,  in view  of  the
disparity in the laws in each country.

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Early bird: George Alfred DePenning made the first
application for a patent
				in India.

EVER since India joined the World Trade Organisation
in 1995 and became a
signatory to the agreement on trade-related
intellectual property rights
(TRIPS), much has been said about intellectual
property, trademarks,
patents, how much more expensive medicines are going
to become, western
exploitation of Indian traditional practices and so
on, thereby leading the
casual observer to imagine that this whole
Intellectual Property Rights
issue is a relatively recent one.

However, less  well known  is the  fact  that the 
Government of  India  has
offered  citizens  of   the  country  the  
opportunity  to  protect   their
intellectual property for exactly 150  years: the
first IPR legislation  was
enacted in British India in 1856.

Even if the  Government of  India is  being reticent 
about celebrating  the
achievement of  this extraordinary  milestone, 
DePenning and  DePenning,  a
Chennai-based firm of IPR Attorneys whose history runs
a close parallel with
that of the IPR industry  in the country and  whose
founder was granted  the
first ever patent in the country, is not (see box).

As per  the  World  Intellectual Property 
Organisation  (WIPO)  definition,
intellectual property refers to creations of the mind,
inventions,  literary
and artistic works, symbols, names, images and designs
used in commerce.

Broadly, intellectual property  is divided  into two 
categories. The  first
category covers  industrial  property, which  includes
 patents,  industrial
designs and  trademarks., all  of which  have
industrial  applications.  The
other refers  to  copyright  laws,  which are  applied
 to  such  things  as
literary,  dramatic  and  artistic  works;  rights 
relating  to  performing
artists, the production of  phonograms and rights  of
broadcasters in  their
radio and television programs.

The history  of  the  development  of  international 
patent  reforms  makes
fascinating reading. Although the concept of
intellectual property was  very
old, there appeared the need  to harmonise laws to
facilitate  international
trade and the free flow of technology. This became
necessary because it  was
difficult to obtain sufficient protection  in other
countries of the  world,
in view of the disparity in the laws in each country.

International impact

A prime example of  this occurred, when the  Empires
of Austria and  Hungary
invited several countries to participate  in an
international exhibition  of
inventions held in Vienna in 1873.  Many countries
refused to display  their
inventions in view of inadequate legal protection.

This incident had a far-reaching impact;  the Congress
of Vienna for  patent
reforms was convened in 1873,  following which an
international congress  on
industrial property was convened in Paris in 1878.

A final draft  proposing an "International"  union of
laws  was prepared  by
France and  sent  to  other  countries with  an 
invitation  to  attend  the
international conference in Paris in 1880. `The Paris
Convention' as it  was
called concluded in  1883. Since then,  the Convention
has  been subject  to
several revisions. In 1967 in Stockholm,  the last
revision was made to  the
Paris Convention  by  which  an international 
organisation  was  formed  to
administer and promote  intellectual property on  an
international level  --
the World Intellectual Property Organisation (WIPO).

The main principles  of the Paris  Convention state
that  nationals, of  any
country, which  is  a signatory  to  the  convention,
will  enjoy  the  same
treatment (with respect to "industrial  property"
laws) in other  countries,
as if  they  were and  nationals  of  the respective 
countries.  The  Paris
convention did  not  include  the  term  "intellectual
 property"  but  only
"industrial property". This necessitated an
international Convention to curb
rampant piracy  in  the area  of  literary  and
artistic  works.  The  Berne
Convention for the protection of literary and artistic
works was adopted  in
the year 1886  with an objective  to facilitate
uniformity  in the level  of
protection granted in  all the  member countries. The 
Convention has  since
then gone through several revisions to adapt to the
practical changes in the
field of copyright law.

The development of the IPR legislation  in our country
has been in  parallel
with  the  international  scenario.  The  Act 
relating  to  Patent   Rights
introduced in  1856 granted  exclusive  privileges to 
the inventor  of  new
methods of manufacturing for a period of 14 years.

This Act was  amended on  the lines  of the  British
Patent  Law (1852)  and
re-enacted in  1859. The  monopoly  granted to  the 
inventor was  known  as
"exclusive privileges".

Subsequently, several  changes to  the  law in  this
field  were  introduced
through various enactments, which  paved the way to 
the Indian Patents  and
Designs Act  1911.  The realisation  that  the  laws
were  not  designed  to
motivate or  protect Indian  inventors  led to  the 
enactment of  the  more
progressive Indian Patents Act of 1970.

Eventually following  the  TRIPS  agreement, Indian 
Parliament  passed  the
Patents (Amendment) Act of  2005. Similarly, the 
Indian Merchandise Act  of
1889 that  awarded exclusive  rights to  individuals
and  businesses to  use
their `recognised brands'  and enforce  their rights 
against other  traders
has, through  a series  of  stages metamorphosed  over
 the years  into  the
currently active  Trademarks Act  of  1999. Currently 
the other  pieces  of
legislation that govern IPR in the country are -- The
Copyrights Act,  1957,
The Geographical Indications of Goods (Registration
and the Protection) Act,
1999 and The Designs Act, 2000.

Since most  nations have  their own  IPR laws,  the
inventor  who wanted  to
protect his invention worldwide had  to go through the
cumbersome  procedure
of applying for patents in every  country where
protection was sought.  This
led to  delays,  greater  expense  and piquant 
situations  until,  in  1978
eighteen nations got together  to sign the  Patent
Cooperation Treaty  (PCT)
which has now been adopted by over 108 nations the
world over.

India became a signatory state to the Treaty on
December 7, 1998. The PCT is
extremely facilitatory in nature and today  inventors
need to go through  an
initial rigorous examination process of their
inventions only in the  Patent
Office they first apply to (the international phase of
the application).

Following this they  go through  a less  rigorous and 
more rapid  screening
process in each of  the countries they seek 
protection of their patents  in
(the national phase of the application).

Despite the first  application for  a patent in  India
having  been made  as
early as 1856 by George Alfred DePenning (see box) and
the laws of the  land
in  connection  with  IPR  having   been  designed  to
 encourage   original
inventiveness, it is a pity that  Indian industry and
academia have not  yet
risen to the challenge.

Current scene

In 2005, according to statistics put out by the World
Intellectual  Property
Organisation, among the developing countries,  Korea
topped the list  filing
twice as many applications  under the PCT as  its
nearest competitor  China.
India made third  place with just  a quarter of  the
number of  applications
that China made.

Also,  of  the  applications   made  for  patents  in 
 China  in  a   year,
approximately, half  are made  by local  inventors,
whereas,  in India  this
figure would be less than 30 per cent. We can
certainly do better than  this
and hopefully in the years to come, this gap will be
comfortably bridged.

A punkah pulling machine

ON February 28,  1856, the  Government of India 
promulgated legislation  to
grant what was then termed as "exclusive privileges
for the encouragement of
inventions of new manufactures". On March 3, 1856, a
civil engineer,  George
Alfred DePenning of 7, Grant's  Lane, Calcutta
petitioned the Government  of
India for grant of exclusive privileges  for his
invention -- "An  Efficient
Punkah  Pulling   Machine".   On   September  
2DePenning,   submitted   the
Specifications for  his  invention along  with 
drawings to  illustrate  its
working. These were accepted  and the invention was 
granted the first  ever
Intellectual Property protection  in India. 
DePenning, submitted  petitions
for two more inventions that same year -- No. 2 and
No. 4 of 1856 under  the
Act and in the years to follow several patents were
granted by the  Calcutta
Patent Office to this prodigious inventor.

Having secured his place  in Indian history,  George
Alfred DePenning  could
well have  rested.  But  he did  not.  The 
entrepreneur in  him  saw  other
inventors struggling with the process  involved in
patenting new  inventions
and he saw the possibility of representing them as a
Patent Agent. And so in
1856, the firm of DePenning &  DePenning was born.
Today, exactly 150  years
on, not only does the firm continue to exist, but has
grown to become one of
the  largest  attorney  firms  devoted  exclusively 
to  the  protection  of
Intellectual Property Rights with  an impressive list 
of clients from  many
parts of the world. The firm has always had a member
of the DePenning family
at  the  helm.  Started  initially  in  Calcutta,  the
 firm  relocated  its
headquarters to Chennai in  1987 and today has 
branches in Kolkata,  Mumbai
and New Delhi. The firm  celebrates the 150th year  of
its existence with  a
series of  events  that started  on  March 3,  2006 
and will  culminate  in
September 2006.

The writer is a Chennai-based Intellectual Property
Rights Attorney.

© Copyright 2000 - 2006 The Hindu

References

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http://www.thehindu.com/thehindu/mag/2006/04/09/index.htm




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