Happy World Intellectual Property Day - April 26th

This is the 11th World Intellectual Property Day.This years theme is "Designing the future".On account of this day I wish the whole Intellectual Property Practitioners and the one who belong to intellectual property family  a very Happy World Intellectual Property Day :) As per the theme lets design the future that's suitable for the environment and which strikes a balance between the public interest and the private interest as well :)

Paris convention for the protection of Industrial Property - I

We will be answering some of the “wh” questions in the forth coming international conventions.Wh questions are why,where,when,what,which,how.To begin with, Paris convention was one of the first and foremost international conventions that was convened for protecting industrial properties which is now known as intellectual property.

Position Prior to Paris convention

The position of law to protect industrial properties differed in each and every country before Paris convention came into existence.Mainly with respect to patents there were widely varying rules in countries.

For eg.- in some countries technical disclosures of patent were held until the term of patent expired

           - some countries published the patent as soon as it was filed, and 

           - in some countries it was published after granting patent to such inventions.

So when one country published patent disclosures upon filing, the patent is thereby known to public which lacks novelty.This in turn makes it difficult to apply patent in other countries where absolute novelty was a pre-condition.Also as trade developed, knowledge of  inventions flowed from one country to another without the consent of inventors,hence there was a prior knowledge of patent known to public which hindered the inventor to get patent protection in foreign countries.

Why Paris Convention?

            To streamline the process of protection of industrial property in a world wide basis.

            To harmonize the laws among all conuntries and achieve unification globally in terms of protection and procedures to be followed.

            To develop economy of each country by protecting one's own citizen and other foreign inventors, so that inflow and out flow of country's profit i.e the export and import is balanced.

Which instance paved way to create Paris convention?

             In 1873, Empire of Austrian-Hungarian conducted an international exhibition for inventions which had invited the inventors from all parts of the world to showcase their inventions.Not many inventors showed interest to exhibit their inventions as it would prevent them from acquiring patent protection due to lack of novelty.The main crux of patent is that it should not be previously published and that it should satisfy the three criteria i.e novelty,inventive step and industrial application.

It was after this exhibition that the austria enacted law to provide protection to foreign inventions.Also the congress of vienna for patent reform was convened in the same year 1873.There after an international congress for industrial property was convened  at paris in 1878.

When  and Where Paris Convention was convened?

In 1883, the paris convention for protection of industrial property came into existence.Until now it has been revised 6 times and the last revision was done in Stockholm.
To conclude, the major concern was to increase the economic conditions and industrial development of country by providing effective protectionist measures.

Thus, the next post would deal with provisions of paris convention had for patents and its impact in achieving a uniformity and harmonization of laws will be analysed.

Industrial Property or Intellectual Property?

In the previous post we saw what is law and international law.Now we will get to know what is intellectual property and its international aspect.Intellectual property is an area where every business is rushing to protect , either it is an MNC or SME or R&D etc. Intellectual property is now prevailing almost in all kinds of things that we use in our day to day life for eg. be it a mobile,TV, noodles,apparel,pen,pencil and the list is endless.Earlier "intellectual property" was commonly known as industrial property. It was in the late 19th century that the term intellectual property replaced industrial property which was coined by Josef and Edmond Picard.It is called as intellectual property since such property is created by a human mind or intellect.Lets explore briefly as to what is property before getting to know what intellectual property is?

Property means one which confers bundle of rights through ownership and possession and there is also exclusive right over such property.There are different types of property like corporeal and incorporeal property.Rights granted over tangible things like building,land are called as corporeal property and rights granted over intangible things like idea,expression are incorporeal property.Thus intellectual properties fall under the category of incorporeal property.

What is intellectual property?

Any product created by human mind or any idea perceived by human intellect which is reduced to product is called as intellectual property.Intellectual property is intangible in nature but such property is granted rights only if it has been reduced to a tangible medium.For eg. if you have an idea to invent a device or any product for that matter, right will be granted over such idea only if it has been created.If it is an invention then Patent will be granted. Supposing if it is a story book or any artistic work or any photo taken by you, then you have a copyright over such book,artistic work or photography.The copyright is given for expressions. Each and every IP right is different in its own kind.

Other different forms of intellectual property are Trademark, Designs, Geographical Indication, Semiconductor integrated circuits and layout designs and Trade secret.These will be explained in the forth coming posts.As every law has its source, intellectual property laws also have their own sources.

Sources of International Intellectual Property Law can be bifurcated as Berne convention and Paris convention.In the history of Intellectual property, Paris convention is a landmark source of law that was convened in 1883. It had provisions mainly for Patents,Trademark,Industrial Design and later Service mark,Trade name were included.Exactly after 3 years in 1886 Berne convention came into effect that contained provisions for literary , artistic works which is the source of Copyright Law.

The other sources are International conventions such as Rome convention,Universal Copyright Convention,Hague Convention,Madrid Agreement, madrid protocol,Convention on biological diversity,UPOV ,Uniform Dispute Resolution Policy,ICANN etc.Apart from conventions there are also treaties like Patent Cooperation Treaty, Budapest Treaty,TRIPS Agreement,WIPO Internet Treaty.With respect to International custom ,passing off is the only custom that has been accepted as a common law remedy in intellectual property laws.

Thus, we saw briefly of what is property,intellectual property and its international sources.In the next post we shall deal elaborately with each and every convention.

Note:For extensive reading on this topic kindly refer the book: International Intellectual Property Law, Edited by Anthony D' Amato and Doris Estellee Long ,Published by Kluwer Law International.

What is Law?

I have been pursuing Intellectual Property Laws Course for the past 1 year but today's class was wonderful which every Lawyer should know about.It was a basic introduction of what law is. As we are going to explore the area International Intellectual Property Rights i.e in an international level it is necessary to know basics of what law is ,its purpose etc.So far in previous classes we dealt with municipal law i.e laws within the country.For eg. Indian Patent Act,1970 Indian copyright act,1957 etc.We will now go through definition of law and deal later with the international aspect of IPR.

So,what is law?

Law is set of rules or set of principles which is a common answer given by the students.It is advisable that whenever you go through any definition of law or definition in any area,the first thing is to find its source because definitions should always be authentic.Today we discussed two definitions which was given by Salmond and Austin who belong to Positive school of thoughts.Law according to Salmond is "set of rules or body of principles recognised and enforced by the state for the administration of justice".Thus a law must be recognised and enforced by the state for the purpose of administration of justice as defined by Salmond.Likewise Austin claimed that Law is a command of sovereign ,he never outweighed Law with that of sovereign and held that sovereign is supreme.The definition part is over and next is to throw some light on its sources i.e where does the law come from?

The sources are Statutes,Custom and Precedent.Moving on to International perspective, international law is for inter-state relations unlike municipal law as said earlier.Municipal law is a law that is legislated within a country and only for that particular country.But when it comes to international law, it is followed by the states duly after consenting to it.International law has been defined as:

(i) those rules of international conduct which are met,
(ii) general acceptance among the community of nation it reflect and
(iii) record those accomodation which over centuries state have found it in their interest to make .Above whole is the definition,for better understanding I have split it.

The sources of international law as provided under Article.38 of International Court of justice are:
(i) International conventions- whether general or particular establishing rules expressly recognised by the contracting states.[General means to the entire world and particular means for 2 or more states]
(ii) International custom - evidence of general practice accepted as law.
(iii) General principles of law recognised by civilized nation- here law is not of international perspective but the law consented by the state and not natural law.
Above are the primary sources and the secondary sources are judicial decisions and teaching of most highly qualified writers of the various nations.
[Note: Doctrine of stare decisis and Precedent is not followed in ICJ,also they are not bound by their previous decisions . But decisions are referred to distinguish with present case]

Thus, international law is non self executory in the state.It should be ratified and law should be legislated in the state that is intune with the international law.So far we saw what is law and international law,in the next post we will see what is International Intellectual Property Law.