Comparative Study of the U.K. U.S. and India’s IP Laws

INTRODUCTION

The Intellectual Property (IP) ecosystem stands as a canopy over the inventions and innovations that have made our lives easier and more convenient. Intellectual Property encompasses all those things that have arisen from the human brain, ranging from ideas, innovations, poems, stories, sonnets, music, and music samples, to processes involved in the development of products and even methods improving the efficiency of such processes and many more. Intellectual Property law regulates the profits arising from such creations, their distribution, as well as manufacturing rights.

“It is to the advantage of the community that there should be a government instrumentality, which can guide the inventor inexperienced in the ways of industry to make the best use of his discovery.”

After seven and a half strenuous years of talks, the Uruguay Round (1986-1994) of negotiation of the WTO resulted in the introduction of intellectual property rules into the multilateral trading system for the first time. The Uruguay Round aims to bring the IP rules under common international law to provide smooth and ideal protection to intellectual property. Despite such efforts, some unavoidable differences between economies still exist to date. This is not an intentional effort but rather a joint result of conventions.

IP LAWS AND THEIR DIFFERENCES

Developed countries, like the USA, have always led the way in intellectual property rights. The United States Constitution states, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is one of the earliest recorded instances of protection granted to discoveries and quite a landmark one. In the US, creative work is automatically protected by copyright as long as it is original and fixed in a tangible form. Whereas in the U.K. & India, copyright protection needs to be invoked or taken up. The USA, UK, and India are signatories to the Berne Convention on copyright. Under this, each member state recognizes the copyright of authors from other member states in the same way as the copyright of its own nationals. Except for differences arising out of older legislations and differences in the duration of copyright, there is not much difference between the copyright laws of India.

In most countries, trademark rights are established through registration - this is known as the ‘First to File’ system. However, in the USA and the UK, the ownership of a trademark is established by whoever first uses it in commerce. This is known as the ‘First to Use’ system and requires you to actually use the mark in connection with goods or services to protect your trademark. Therefore, if there is a dispute between you and another party over a trademark, whoever used it first commercially will own the right, even if they did not register it. In the USA, the first party to use a trademark commercially owns the rights to that trademark.

A distinct feature of the Indian patent system is the concept of “compulsory licensing,” which grants the Indian government the power to issue licenses to appropriate parties if the patent holder fails to meet the demands of the public or fails to fulfil the requirements of the public. This feature of the Indian system signifies that the focus is on fulfilling the public demands of the invention rather than emphasizing granting protection to the inventor. Conversely, the US, as laid down in its Constitution, aims to grant majority protection to the inventor. Under US law, if your invention is publicly disclosed without a patent, you have a grace period of one year to register your patent. However, to promote discoveries and inventions by NGOs and educational institutions, protection and discounts have been granted for registering a patent in both the US and India. In the UK [Article 60 of the EPC] and India [Section 2(y), 6 and 7 of the Patents (Amendment) Act, 2005], the first to have filed the patent application are considered as the inventor, which means that the filing date is considered and is given the first priority even if a second person comes up with the invention before the first. In the case of the USA, in the event of two or more applications for the same invention, a determination is made as to who invented it first. If two or more applications are filed by different inventors claiming substantially the same patentable invention, a proceeding known as an “interference” is instituted by the USPTO to determine who is the first inventor and entitled to the patent. (35 U.S.C. Section 135) provided that the patent has not been issued, nor the application been published, for more than one year prior to the filing of the conflicting application, and also provided that the conflicting application is not barred from being patentable for some other reason. Aside from differences, there are similarities or commonalities amongst the IP systems of the three countries. All three countries are contracting parties of:

• The Berne Convention (each member state recognizes the copyright of authors from other members

states in the same way as the copyright of its own nationals)

• The Paris Convention (under this, any person from a signatory state can apply for a patent or trademark in any other signatory state and will be given the same enforcement rights and status as a national of that country would be)

CONCLUSION

The exploration of IP laws in the U.K., U.S., and India reveals a fascinating interplay between global harmonization efforts and national legal idiosyncrasies. While the Berne and Paris Conventions serve as unifying foundations, the practical implementation of IP protection in these countries shows distinct national characteristics. The U.S. favours the original creators with its 'First to Use' trademark system and grace period for patent disclosures, whereas the U.K. and India's 'First to File' policy for patents emphasizes the race to the patent office. India's approach to compulsory licensing underlines a commitment to public welfare, a contrast to the more inventor-centric U.S. stance. Despite these differences, the shared international commitments of these nations underscore a collective endeavour to balance the interests of creators with broader societal needs. As the global landscape of commerce and innovation continues to evolve, the adaptability and responsiveness of IP laws will remain crucial in fostering an environment where creativity and innovation can flourish.