Technological IP includes Patents and Computer programs, while
Non-technological IP includes Trademark, Design and Copyright
Research and Development
Investment in the IP sector
Dissemination of knowledge
Licencing, marketing, distribution and selling
India is one of the signatory states to the TRIPS Agreement. The TRIPS Agreement has established some international rules. These rules lay out a framework of basic protocols to be followed by the member countries.
The TRIPS Agreement has stated in its Article 7 that, protection and establishment of IP rights contribute to the upholding of technology innovation and the technology transfers and dissemination of such knowledge and provides both social and economic welfare; balancing rights and obligations
The Paris Convention: Article 5A of the Paris Convention mentions the rules that call for the mandatory licencing of patents and utility models for short-term protection.
Article 5A (2) speaks of the right of member countries to make legislative provisions and take actions to get the permit for compulsory licencing and prevent any unauthorized use.
Article 5A (4) says that a compulsory licence may not be granted due to failing to work or working insufficiently before the expiration of patent rights. The compulsory license should be non-exclusive and not be transferable.
TRIPS Agreement: Articles 30 and 31 of the TRIPS Agreement talk of exceptions and limitations to the exclusive rights of any World Trade Organization (WTO) Member, that they may issue in their national legislations.
Article 30 allows the Member states to grant some limited exceptions to the exclusive rights provided under a patent, given that, those exceptions, as limited as they may be, are non-conflicting with respect to a normal extent of exploitation of the patent and does not unreasonably deter the well-founded interests of the patent owner, taking into account the same well-founded interests of third parties.
Article 31 provides that a Member State may allow the use of the patented technology other than the ones provided under Article 30, without the permission of the holder to its patent rights. This covers compulsory licencing for the benefit of third parties and government use without the permission of the holder of its patent rights. Such use may only be authorized when the proposed user has made efforts to get authorization from the right holder but that effort has failed to materialize within time. This requirement may be utilized by a Member in case of a national emergency or other circumstances of extreme urgency or in cases of non-commercial public use.
Many of the industrialized and developing countries have laws in place that permit the government and third parties to use a patented invention without the authorization of the patent right holder under certain specific terms. Compulsory licenses are granted against careful consideration and are not provided for free. Regarding voluntary licensing, the rights can be implemented after negotiation and the payment or compensation.
