December 6, 2002
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‘Violations Of Industrial Property Rights Have Immense Negative Impact’

— MADHUSUDAN POUDYAL

madhusudan
Madhusudan Poudyal is the director of Industrial Property Section at the Department of Industry. The section is the focal body that deals with issues of industrial property protection. He spoke to SANJAYA DHAKAL on the current situation of industrial property protection in the country. Excerpts:

What do you mean by industrial property?

The industrial property, as recognized by the WIPO, include patents (inventions and innovations), design, trademark, geographic indications of source, utility models and protection of secret information. Patents pertain to inventions and technological innovation including both the new invention as well as innovative use of existing material that can be commercially exploited. Design relates to specific shapes or attraction that could be colored, sculpted or so on. Trademarks are the signs, symbols, figures that introduce a certain product.

To what extent does violation of industrial property rights affect the country?

Such violations have immense negative impact and it hits on several fronts. A genuine producer will have spent huge amount of money to advertise and promote their products. But the pirates escape this cost and sell their products at the cost of genuine producer. So, the genuine producer will feel the biggest impact. However, customers, too, will be equally hurt. They will be misguided and waylaid to buy fake products that may not have the same quality as desired. Likewise, this practice also erodes the revenue base of the government. The social ethics and minimum norms of business stand thoroughly violated. So it has an all-round effect.

How much money does society lose due to such violation?

There has been no research to find the exact loss because of the violation of industrial property rights. But it is immense and runs into millions. The piracy and violation has increased in our country along with the increase in the trade volume. We have been making best use of the existing laws to penalize the culprits. We regularly inform our custom officials on this aspect, as well. But often we have seen that some unscrupulous persons attempt to protect these culprits.

What are the existing legal instruments to protect industrial property?

Right now the Patent, Design and Trademark Act 2022 B.S (1965 AD). is active. The Consumer Protection Act also has few provisions to control unfair activities. So far, as the protection of audio-visual items and other materials, a new Copyright Act has come into force.

Are there any initiatives to bring in a new act to govern industrial property rights?

Definitely, we are in the process of introducing new act to replace the Patent, Design and Trademark Act 2022 B.S.

How do you find the trend of registering patents, designs and trademarks in our country?

Due to rise in trade volume, the trend is increasing. There is an adequate demand for trademark registration. But as far as patent and design are concerned, they are not much registered. Maybe there is a lack of knowledge on our part. There is a tendency among us to flash and publicize new inventions before patenting them. Whereas in other countries people flash their inventions only after getting patent from the state, which grants them the monopoly to commercialize it. At present, there are 17,500 trademark registration at the department. But there are only 50 patent and 60 design registration.

What is the volume of complains the department handles regarding the violation of industrial property rights?

There are many complaints. The department of industry is empowered to hear the complaints first. Only if the parties are not satisfied, can they go to the court.

How would the enforcement of TRIPS affect us, then?

Well the provisions of TRIPS are not much than what we discussed above. It all boils down to protecting the aforementioned rights. The TRIPS embraces these rights in the case of international trade. It intends to forcefully implement the protection of these rights in the international trade.

There are also concerns that westerners are exploiting patent rights and have patented the use of our ancient herbal medicines and so on. What do you say?

There is much misunderstanding on this point. Patenting cannot be done right away. It has to be backed by documents and proofs. Patent involves novelty, inventive step and industrial applicability. No one can patent something that is already in use. They may patent for innovative use of existing materials. Patent can also be had for microbiological and genetic derivative. Whenever any state grants patents on say some herbal medicines, they first publish facts and documents. We need to study them and object if they are not true. One can always falsify patent claims if they are not genuine. In fact, they have falsified the claims on few patents of Basmati rice. What we can do is submit our documents listing the details of use of herbal and ayurvedic medicines and things like that. This will help us from such undue patenting.