Manual Innovation, Competition and Consumer Welfare in Intellectual Property Law

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Claims in any patent specification constitute the soul of the patent over which legal proprietary is sought. Discovery of a new property in a known material is not patentable. If one can put the property to a practical use one has made an invention which may be patentable. A discovery that a known substance is able to withstand mechanical shock would not be patentable but a railway sleeper made from the material could well be patented.

A substance may not be new but has been found to have a new property. It may be possible to patent it in combination with some other known substances if in combination they exhibit some new result. The reason is that no one has earlier used that combination for producing an insecticide or fertilizer or drug. It is quite possible that an inventor has created a new molecule but its precise structure is not known.

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In such a case, description of the substance along with its properties and the method of producing the same will play an important role. Combination of known substances into useful products may be a subject matter of a patent if the substances have some working relationship when combined together. In this case, no chemical reaction takes place. It confers only a limited protection. Any use by others of individual parts of the combination is beyond the scope of the patent.

For example, a patent on aqua regia will not prohibit any one from mixing the two acids in different proportions and obtaining new patents. Methods of treatment for humans and animals are not patentable in most of the countries one exception is USA as they are not considered capable of industrial application.

In case of new pharmaceutical use of a known substance, one should be careful in writing claims as the claim should not give an impression of a method of treatment. Most of the applications relate to drugs and pharmaceuticals including herbal drugs. A limited number of applications relate to engineering, electronics, and chemicals. It is obvious that management of IP and IPR is a multidimensional task and calls for many different actions and strategies which need to be aligned with national laws and international treaties and practices.

It is no longer driven purely by a national perspective. IP and its associated rights are seriously influenced by the market needs, market response, cost involved in translating IP into commercial venture and so on. In other words, trade and commerce considerations are important in the management of IPR. Different forms of IPR demand different treatment, handling, planning, and strategies and engagement of persons with different domain knowledge such as science, engineering, medicines, law, finance, marketing, and economics.

Each industry should evolve its own IP policies, management style, strategies, etc. Pharmaceutical industry currently has an evolving IP strategy.

Since there exists the increased possibility that some IPR are invalid, antitrust law, therefore, needs to step in to ensure that invalid rights are not being unlawfully asserted to establish and maintain illegitimate, albeit limited, monopolies within the pharmaceutical industry. Still many things remain to be resolved in this context.

CIIPC-CPIP Conference - Panel 5 - Intellectual Property & Competition Policy

Source of Support: Nil. Conflict of Interest: Nil. National Center for Biotechnology Information , U. J Adv Pharm Technol Res. Chandra Nath Saha and Sanjib Bhattacharya 1. Author information Copyright and License information Disclaimer.

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E-mail: moc. This is an open-access article distributed under the terms of the Creative Commons Attribution-Noncommercial-Share Alike 3. This article has been cited by other articles in PMC.

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Abstract Intellectual property rights IPR have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of property. Keywords: Drug, intellectual property, license, patent, pharmaceutical. IPR enhances technology advancement in the following ways:[ 1 — 4 ] a. Rationale of Patent Patent is recognition to the form of IP manifested in invention.

Rationale of License A license is a contract by which the licensor authorizes the licensee to perform certain activities, which would otherwise have been unlawful.

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Some examples of know-how are: i. Management of Intellectual Property in Pharmaceutical Industries More than any other technological area, drugs and pharmaceuticals match the description of globalization and need to have a strong IP system most closely. Nature of Pharmaceutical Industry The race to unlock the secrets of human genome has produced an explosion of scientific knowledge and spurred the development of new technologies that are altering the economics of drug development. Some Special Aspects of Drug Patent Specification Writing patent specification is a highly professional skill, which is acquired over a period of time and needs a good combination of scientific, technological, and legal knowledge.

Singh R. Ltd; Law relating to intellectual property A complete comprehensive material on intellectual property covering acts, rules, conventions, treaties, agreements, case-Law and much more [ Google Scholar ]. Research and development statistics.

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Research and development in industry: An overview. Bainbridge DI. New York: Longman; Intellectual property. The Design Act. The Trademarks Act along with trade Marks Rules The Geographical Indications of Goods registration and protection Act, along with Geographical Indications of Goods registration and protection Rules The Patents Act, as amended by Patents amendment Act Michaels A. London: Sweet and Maxwell; A practical guide to Trade Mark Law. Watal J. London: Kluwer Law International; Intellectual property rights in the WTO and developing countries.

The international intellectual property system: Commentary and materials. Therefore, competition law and policy should be applied complimentary with IPRs to ensure that all stakeholders including innovators, consumers and the economy at large remain protected from undue exploitation. It should be noted that IPRs confers the exclusive use of rights to their holders but that does not mean such rights are not absolute. IPR are subject to competition law principles because the monopoly status they confer to their holders is the very reason why competition law prohibits its abuse.

Competition law thus operates to contain the abusive exercise of the conferred exclusive rights. It is only when allowed bounds and limits of competition are exceeded in the exercise of intellectual property rights that competition law seeks to correct for the benefit of consumer and the economy in general.

This helps markets to remain open and effective by preserving the primary source of competitive pressure. The enforcement of competition law therefore does not always assume IPR to be restrictive but begins with the recognition that IPR confers property rights. Such rights do not always translate to market power which is a concern of competition law but instead forms the basis for entry into markets as innovators rush in to seek rent and in turn competition ensues for the benefit of consumers and the economy in general.

The goal of IPRs is to protect and promote inventions while competition law on the other hand provides the mechanism of removing market distortion, prevent anti-competitive behaviour and prohibits the abuse of monopoly power. However, over extension of IPRs such as the granting of exclusivity over non-differentiated features e. Equally, inadequate protection of rights is a receipt for less innovation as imitations and abuse of rights by non-holders become the order of the day to the detriment of economic growth and consumers.


Competition and Intellectual Property law – Requirements for Compliance of Enterprises

Too little Intellectual Property means genuinely differentiating features cannot be protected. Therefore, as the Commission advocates for more competition, it is very important to protect intellectual property rights as imitators could more rapidly exploit the efforts of innovators and investors without compensation. Rapid imitation would reduce the commercial value of innovation and erode incentives to invest, ultimately to the detriment of consumers. The Competition laws promote innovation and consumer welfare by prohibiting certain actions that may harm competition with respect to either existing or new ways of serving consumers.

Trade marks nowadays do not just convey information about the source of the manu- facturer. Due to advertising and the increasing reputation of brand owners, the appeal of the brand itself has increased, by which the protected signs themselves have gained substantially in value and have turned into an asset. Ghidini fears that the increased protection for trade marks would constitute an entry barrier for competitors. Therefore, inter alia, he proposes the reaffirmation of the importance of the distinguishing func- tion of trade marks and the application of competition law. This chapter provides a good and concise overview of the intersection of intellectual property rights and competition law and highlights the developments in Europe.

For Ghidini, competition law provides an external measure for achieving a balance between the diverging interests of IP stake- holders. The chapter then goes on to discuss unfair competition law and its diverging approaches and relation to intellectual property rights in Europe. Ghidini states that the different laws of unfair competition in Europe have a distinct rationale and one should therefore avoid regarding them as proxies for IP rights. Rather, unfair competition rules should adopt a charter for the wider benefit of consumer welfare.

This somehow marks a break in the pattern of discussion that has been laid out in the previous chapters. This provides that the invention for which the patent was granted is actually put into practice. Ghidini argues that this has detrimental effects for many developing countries as the initial idea of enhancing tech- nology transfer and spill-over effects from developed to developing countries has not been achieved in practice.

In conclusion this book provides a thoughtful and balanced overview of the tensions that intellectual property law creates. Some very useful pointers on how these tensions could be resolved are provided throughout the book which can be of use to legislators.