[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
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