Intellectual Property Overlaps: An Indian Perspective

Abstract

Very often, more than one set of intellectual property rights might apply to a common subject-matter. Illustratively, consider computer software, which merits both patent and copyright protection in some countries. Or pharmaceutical drugs, protectable under both patent law as also a regulatory data exclusivity regime.

Given the creativity of lawyers and the ever-widening range and scope of subject matter now amenable to intellectual property protection, the rate and range of overlaps has increased in almost geometrical progression. The question now is: how best do we deal with them? Do we suffer them, eliminate them, or streamline them?

These interrogations form the bulk of this book. While most chapters deal with overlaps from the vantage point of the US or the UK, the discussion and insights therein are of some relevance to India, a country with a shared common law heritage.

As the ensuing chapters demonstrate, courts and legislators continue to grapple with the issue of overlaps. The approach of the US Supreme Court (minimizing the scope for overlaps by carefully circumscribing the scope of individual IP regimes) has much to recommend for it.

The Indian approach is an interesting one, not least because this South Asian giant, much like its political history, has been open to international influences and invasions of every kind. Given that many of our IP statutes share a colonial legacy, and our judicial decisions embody a fair sprinkling of international precedent, one might argue that the Indian approach is inherently a comparative one. Indeed, our judges appear to have internalized the Gandhian wisdom that while their windows are open to foreign winds, they refuse to be swept off their feet by them.

In the end, the issue of overlaps forces us to revaluate the rationale of existing IP regimes and their bounds. To this extent, this book will be of value to not only intellectual property practitioners, but also to students, policy makers and others who wish to hark back to the basics of intellectual property protection.

Keywords: intellectual property, overlaps, copyright, trademarks, patents, designs, india, traditional knowledge

JEL Classification: O34, K10, K33