Connect with us


Role Of The Judiciary And Intellectual Property Lawyers In India



Intellectual Property, commonly termed as IP law protects the finer exhibitions of human accomplishment. In recent times IP has gained much  significance in the judicial system because of the fact that IP acts as a major asset for both corporations as well as individuals.

Thanks to the globalisation, interactions between countries have increased and this has resulted in the revelation of IP. Developed countries have this unique and effective enforcement tool to prevent losing their IP due to lower levels or lack of intellectual property protection.

The link between trade and intellectual property was first established after 1983 when General Agreement on Tariffs and Trade or GATT came into effect after the Uruguay Round of negotiations.

The Uruguay Round negotiations concluded in 1994 and one of the most significant results of the establishment of World Trade Organization were the Trade Related Intellectual Property Rights or TRIPs. The TRIPs Agreement is one of the most far-reaching international instruments ideally negotiated on intellectual property rights.

India is also a member of the TRIPs and bound by its commitment and has made considerable changes to the IP laws affecting the judiciary as well as the Intellectual Property Lawyers in India.

Need of IP Laws

India is considered as the best and widest reservoir of talent both in the artistic as well as in the scientific field, thanks to its outstanding educational infrastructure. During the Information Technology Revolution, exploitation of such talent resulted in significant economic gains. IP laws acts as the driving force in the protection and retention of these newer and better ideas and knowledge.

Judiciary being the pillar of Indian constitution that passes decisions and judgements that sets precedence, are therefore required to be well versed with the IP laws and its several implications. With an in-depth knowledge of IP and the laws the judiciary can lay a strong foundation.

Distinct Role Of The Judiciary

With relation to IP the judiciary plays two distinct roles:

Interpretation of the various IP Statutes – Under the commitment of TRIPs there has been several modifications and introduction of IP legislations to modernise things and put it in harmony with the international laws. Sometimes even new laws were formulated and reinforced. However, the new laws have been hastily introduced without properly weighing the long-term consequences of it. It is here the judiciary comes into play to interpret the new laws should there be any conflict between the new and the existing statutes.

Adjudication of IP Matters – The role of the judiciary is to comprehend the relation to settlement of IP matters.

Stages Of Life Cycle

However, to understand the role of the Intellectual Property Lawyers and judiciary you will need to look at the genesis and the life cycle of IP. Ideally the life cycle of IP involves four distinct stages:

  • Creation of the intellectual property,
  • Protection of the intellectual property,
  • Utilising the intellectual property and
  • Enforcing the intellectual property, in that order.

The judiciary plays a significant role in each of these four stages in the IP life cycle.

Role of Judiciary in Creating IP

The judiciary contributes actively in the first state of IP life cycle by enforcing the Contractual Obligations that may arise out of the contracts of IP. According to the Article 300-A [4] of the Indian Constitution, no person should be deprived or dispossessed of property. This is applicable to an inventor or author over his or her invention or work. IP law ensures that such contractual agreements for the transfer of IP are governed under the Indian Contracts Act. Whenever disputes arise over such ownership of IP, the judiciary and Property Dispute Lawyers India come into play.

Role of Judiciary in Protecting IP

This is the second most important role of the judiciary in the IP Life cycle. There are diverse forms of IP Protection that are available that includes:

  • Patents
  • Designs
  • Copyright
  • Trade, Service Mark and Company Names
  • Plant varieties and Plant breeder’s rights
  • Geographical Indications and
  • Trade Secrets.

All these forms are implemented in accordance with the Statutes such as Indian Patents Act and Indian Trade and Merchandise Act. These Statutes have resulted in Quasi-Judicial Authorities and Bodies such as:

  • Controller of Patents and Designs
  • Registrar of Copyrights and the Copyright Board and
  • Registrar of Trademarks and the Trademarks Appellate Board.

These boards and their officers have the right that may be equivalent to the Civil Court.

Role of the Judiciary in Utilising IP

This third stage of IP Life Cycle involves licensing and cross-licensing, transfer of property and others. Statutes that are applicable in this aspect include Indian Stamp Act, Indian Contracts Act, Transfer of Property Act and others.

It ideally deals with the compulsory licenses as per The Indian Patent Act. It provides remedies for abuse of monopoly rights that are approved under a patent. There are three types of compulsory licences such as:

  • Licence to work a patented creation
  • Licence in respect of definite patent or modules of patent and
  • Licence in respect of a patent without which other patents cannot work.

Even after having a compulsory licence if the public remains displeased or if the patented invention is not obtainable to the community at a reasonable price, the Controller of Patents will take up the dispute. In such situations the controller may even revoke the patent.

However, all these decisions passed by the quasi-judicial boards may be appealed in higher courts.

Role of the Judiciary in Enforcing IP

The last and fourth stage of IP Life Cycle is also the most important stage. This stage is designed to prevent others from utilising and exploiting a protected intellectual property illegally without any authorisation. However, there will be specific duration of such protection. Any misappropriation and infringement of intellectual property is considered as a crime. The Statutes that govern the IP list includes copyright infringements according to the definition of it as mentioned in The Copyright Act.

Ideally, the role of the judiciary and the IP lawyers involve the protection of any intellectual creation in the best possible way.

Amy Jones is an expert legal advisor working at Ahlawat & Associates, a well-known law firm in India. She is one of the foremost lawyers in India who loves to help people in all aspects of the practice area.