Chinese enterprises should do a good job in strategy of intellectual property rights when going to sea in India
Intellectual property appeals board.
According to the world intellectual property index 2019 annual report (WIPI) issued by the World Intellectual Property Organization (WIPO), the number of patent applications accepted by the Patent Office of India in 2018-2019 is 50055, an increase of 7.5% over the previous year; the number of trademark applications covers 340000 categories, an increase of 20.9% over the previous year, and the effective trademark registration is 1.9 million; the number of design is 12632, an increase of 13% over the previous year .6%。 In addition, according to the global innovation index (GII) released by the world intellectual property organization, India scored 36.58, rising from 81st in 2015 to 52nd in 2019. It is an economy with a much higher ranking. It can be seen that India's intellectual property rights are developing rapidly and have a good prospect.
Indian patent protection system
Indian patent is a legal right issued by the government to the patentee in a limited period of time in exchange for the full disclosure of his invention by the patentee. At the same time, it is prohibited for others to manufacture, use, sell and import patented products without the permission of the patentee.
The patent law of 1970 is the patent law of India after its independence, which has been revised three times, including the following features: the purpose of granting patent is to encourage invention, rather than import monopoly patent products; the two patent forms of product patent and process patent are recognized; the production process of drugs, food and agricultural chemicals can apply for patent, but it can not apply for patent itself. Later, in order to fulfill the intellectual property rights protection obligations of the members of trips, India revised the law three times, among which the patent (Amendment) law of 2005 began to grant patents to the drugs themselves, but it was also limited to the new drugs invented after 1995, or the drugs with significantly improved efficacy; the original drugs, including their derivatives or the development of new uses Tuzhi still cannot be granted a patent.
The administrative department of Indian patents is the Indian Patent Office (IPO), which is responsible for the granting of Indian patents. Its headquarter is in Kolkata, with three branches in Mumbai, Chennai and New Delhi. Each branch is responsible for patent applications within its jurisdiction. The applicant may file a patent application in the corresponding Patent Office of his / her usual residence, place of business or actual location of the invention; for the applicant who is not a resident of India or does not have a residence or place of business in India, the patent office to file the patent application shall be determined according to the service address or business location of the patent agent in India.
The conditions for patent granting in India include: novelty, creativity and production availability. Articles 3 and 4 of the patent law, as exclusionary provisions, list a variety of situations that do not belong to patents. As has been explained above, India's relatively loose environment for drug patent protection compared with other countries, as well as the wide application of compulsory licensing system on drugs, lead to India's multi generic drugs, which is one of the reasons for India's low drug prices.
The compulsory licensing system is stipulated in the patent law of India, which means that the General Administration of patent, design and trademark of India directly authorizes a third party to use or sell a specific patented product or use a specific method without the permission of the patent owner. According to the law, the patentee has the exclusive right to his own patent, which can prevent others from using his own patented products, while the compulsory license transfers the right to use the patent to a third party.
The compulsory licensing system can be initiated by application. After 3 years from the date of authorization of a patent, if the patent fails to provide sufficient information to the public, is not put into use in India, or is not available to the public at an affordable price, anyone can apply for a compulsory license from the General Administration of patents, designs and trademarks of India. In addition, if the government of India issues a corresponding notice, the Directorate General of patents, designs and trademarks of India may also issue a compulsory license order on its own initiative. After the compulsory license, the patent owner does not lose the patent right, on the contrary, he can also collect fees from the users of the patent according to the compulsory license agreement.
In practice, the Indian government has paid attention to the implementation of compulsory drug licensing in the world. It has successively issued compulsory licensing to core drugs of Bayer, Novartis and other multinational pharmaceutical enterprises. The domestic generic pharmaceutical industry in India is also very developed, and the situation of generic drugs flowing into other countries and regions has occurred. In this field, the Indian government has formed a long-term game and competition with multinational pharmaceutical companies.
There are two ways to apply for a patent in India: one is to apply for a patent cooperation agreement (PCT) and designate India to obtain a patent after entering the national stage; the other is to directly file a patent application with the Patent Office of India. The protection period of both methods is calculated from the date of application, and the long protection period is 20 years.
India's patent law also provides for patent revocation procedures: after the announcement of patent authorization, anyone, including the central government, can file a request for revocation of the patent right as long as the patent is within the validity period, which will be accepted by the intellectual property appeal board. If it is a counterclaim filed by the defendant in the patent infringement litigation, it shall be accepted by the high court.
Indian design protection system
Different from China, India takes the design as an independent intellectual property right for special legislative protection. Appearance design refers to the shape, structure, pattern, decoration, line or color features applied to the product, which are only used for vision, excluding any model, construction principle, or any product which is only a mechanical device in essence, nor any artwork.
The Patent Office of India is responsible for granting design rights, and the General Administration of Kolkata is responsible for examining design applications throughout India. Applicants can also submit applications to sub bureaus, which will forward the received applications to the design department of the General Administration of Kolkata for examination.
India's "design Act 2000" and "design regulations 2001" stipulate the conditions to be met for the design. In addition to the common conditions required for the acquisition of intellectual property rights, the special point is that the design must act on the vision, but not all visual works can apply for the design. Relevant laws in India stipulate that the design of literary or artistic features is not protected, including books, structures of buildings, integrated circuit diagrams, etc.
The term of protection of Indian design is 10 years from the date of registration, and it can be renewed once after expiration, and the renewal period is 5 years from the date of expiration of the right. In addition, India recognizes the international priority of six months. Those who apply to India for registration of the same design within six months after China filed the patent application for design may enjoy the priority, that is, the time of previous application in China shall be taken as the application date for the application in India.
India's trademark protection system
A trademark is a sign that can be represented graphically and can distinguish a product or service from other products or services. The current law governing trademarks in India is the Trademark Law of 1999, which has strengthened the protection of trademarks and made detailed provisions on the prevention of the use of deceptive trademarks.
The trademark registration office (TMR) under the General Administration of patents, designs and trademarks of India is responsible for the trademark management in India, with its headquarters in Mumbai and an international registration agency to connect with the Madrid Agreement on the international registration of trademarks. In addition, there are four offices in Ahmedabad, Chennai, sindhri and Kolkata to take charge of the trademark management in their respective jurisdictions.
Indian trademarks are divided into commodity trademarks and service trademarks. As a registered trademark, it must have significance, not infringe the prior rights such as copyright, nor be similar to the registered trademark of the same kind. Shall not be registered as a trademark in any product or service category. It is worth noting that in India, 3D icons, sounds and smells can be applied for trademarks. For color trademarks, India requires that the trademark must have more than two colors, and the review department can decide flexibly.
In addition, Article 9 of the 1999 trademark law of India provides the reasons for the non registration of trademarks, and conventional or commonly used marks in trade shall not be registered as trademarks, unless the second meaning of the marks is obtained through use.
There are two ways of trademark registration in India: one is to apply directly to the Trademark Office, the other is to designate India as the effective region through the Madrid system of trademark registration. The protection period of both is 10 years, and can be renewed once every 10 years from the date of application. In addition, according to the Paris Convention for the protection of industrial property rights, India also recognizes the priority of six-month trademark registration applications.
Suggestions for Chinese Enterprises
When Chinese enterprises enter India, they need to pay attention to the following points: first, pay attention to the advance layout of intellectual property rights, make full use of the convenience provided by Patent Cooperation Treaty, Madrid Agreement and other ways, register in advance, and reduce the risk of trademark being rush registered; second, pay attention to the strength of intellectual property protection in India, and reduce the risk of being sued for infringement. For example, in terms of computer copyright, India's regulations are particularly strict. Any use of pirated software will be severely punished. The use of Illegally Copied Computer software will be sentenced to 7 days to 3 years' imprisonment with a high fine. Thirdly, notice the limitation of action. India's procedural law does not "know or should know the infringement", but is calculated by the date of the infringement The limitation of action of, which puts forward higher requirements for safeguarding rights; fourth, when filing a patent infringement lawsuit, the court can apply for a temporary injunction and property preservation of the defendant as needed. After examination and approval, the court will issue a single temporary injunction, which can reduce its own losses as much as possible; fifth, fully understand the advantages and disadvantages of safeguarding rights in India: the advantages lie in India's consideration when examining the infringement The substantive content of the patent is ignored, and some features attached to it are ignored. Therefore, the judgment of patent infringement is loose, that is, as long as the suspected use method covers the content of the patent involved, it may constitute infringement, and the disadvantage is that it takes a long time to safeguard the rights. The trial period of Indian patent infringement is generally 4-6 years, which puts forward higher requirements for both parties To seek, we need a solid economic foundation; sixth, we need to correctly evaluate the stability of our patent rights. In tort litigation, the defendant will usually file a claim for invalidation of the disputed patent right. If the stability of his patent right is insufficient, he will not achieve the purpose of safeguarding the right, but will lose his patent right.
