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{"id":152,"date":"2014-05-02T23:18:53","date_gmt":"2014-05-02T23:18:53","guid":{"rendered":"http:\/\/ijlljs.in\/?page_id=152"},"modified":"2014-05-02T23:18:53","modified_gmt":"2014-05-02T23:18:53","slug":"intellectual-property-rights-and-small-medium-enterprises-smes","status":"publish","type":"page","link":"http:\/\/ijlljs.in\/intellectual-property-rights-and-small-medium-enterprises-smes\/","title":{"rendered":"INTELLECTUAL PROPERTY RIGHTS AND SMALL MEDIUM ENTERPRISES (SME\u2019s)"},"content":{"rendered":"

INTELLECTUAL PROPERTY RIGHTS AND SMALL MEDIUM ENTERPRISES (SME\u2019s)<\/strong><\/p>\n

\n

Author- Vinod Kapoor, 4th<\/sup> year \u00a0and\u00a0<\/strong>Co-author- Priya Nagpal, 3rd<\/sup> year ,<\/strong>Pursuing B.B.A.LL.B (H) with Specialization in Corporate Law (<\/strong>University of Petroleum & Energy Studies (UPES), Dehradun)<\/strong><\/p>\n

\n

ABSTRACT<\/strong><\/p>\n

The increasing advantage of the intangible assets as a source of value creation for the firms has made intellectual property rights more attractive. Where Small and medium sized (SME\u2019S) account for 95% of the business population and also where it plays a significant role in the economy by contributing to the GDP by achieving sustainable national economic development, most governments have put an effort to establish the SME\u2019S sector in their respective countries. Through this paper authors have made an effort to discuss the significance of the intellectual property for the SME\u2019s and also the barriers which are the reasons for ineffective use of the IP system and which has the impact on ability to exploit the innovative capabilities. Also, through this paper authors have put forth many steps in the way of suggestions for encouraging more effective use and enforcement of IP system by entrepreneurs so that SME\u2019s manage to incorporate IP within the broader framework.<\/em><\/p>\n

Keywords: economy, intangible assets, Intellectual property, SME\u2019s<\/em><\/p>\n

1. MICRO & SMALL ENTERPRISES (MSES) SECTOR \u2013 AN INTRODUCTION:<\/strong><\/p>\n

The Micro & Small Enterprises (MSEs) Sector, continues to be a vibrant sector of the Indian economy. Approximately, there are about 12.8 million units (over 90 per cent of total industrial units) in the given sector employing nearly 31 million people.\u00a0 This sector contributes about 39 per cent of the total industrial production which accounts for approximately 33 per cent of the total exports. This sector has registered a higher growth rate than the rest of the industrial sector.\u00a0 There are more than 6500 products ranging from traditional to high-tech items, which are being manufactured by the small enterprises in India. After agriculture, MSEs sector provides maximum opportunities for self-employment and jobs in the country.\u00a0 The small enterprises sector holds good potential for further expansion and growth in the future.\u00a0 In fact, the employment potential of the sector is unmatched by \u00a0other sectors of the economy. \u00a0At present, the Small and Medium Enterprises (SMEs) in India are at a crossroad and there is a strong debate over the questions like what would be the future of these SMEs? How the SMEs can endure in the trade ring? What role the government should play in making these SMEs more competitive? How can the Intellectual property generate wealth in the business?<\/p>\n

WTO has been \u00a0created with the objective of creating Global trade which will give equal opportunities to the \u00a0member countries. This means a level \u00a0field for all members \u00a0without any unfair protectionism or barriers of any kind such as entry barriers, tariff barriers etc. This also means respecting Intellectual property of other countries. No more copying or reverse engineering of other company’s research products. Thus the impacts of this will be-This will impact SMEs in three ways and the sheer survival of SMEs will depend on Tripod of (1) Cost (2) Quality and (3) Delivery.<\/p>\n

While the government might be considerate to SMEs in terms of it’s policies, consumers do not differentiate between the “goods and services” of large companies or SMEs. Today customers want more and more for less and less. This will further lead to Intense Competition: More the players in the market, the fierce will be the competition, which means only the “fittest will survive”.\u00a0[1]The concept of intellectual property rights has gained importance in the recent years. Intellectual property is also seen as an important source of competitive advantage and a means for the creation of wealth. IPR are meant to encourage innovation. The accompanying legislation allows the society at large to reap all the benefits of the new knowledge that has been generated. It enables a society to evolve economically which results in higher livingstandards. The monopoly offered by these rights is a major incentive to work on new knowledge creation without any fear of unjust appropriation. Besides, the disclosure of knowledge leads to the expansion of the knowledge base. Moreover, it also deters duplication, thus promoting the generation of newer knowledge. Also, importantly, some time slot to commercially benefit from the new knowledge becomes available. If this regime didnot exist, no knowledge would have proprietary value.[2]<\/p>\n

1.1 Significance of Intellectual Property for Small and Medium Enterprises ( SMEs )<\/strong><\/p>\n

Small & Medium Enterprises are the pillars of the Indian manufacturing sector and have become significant in the stable monetary growth of India. There are more than lakhs of SME units in India with investment of above Rs.\u00a01\u00a0lakh crore. The sector has recorded strong growth during the past fiscal years and contributes approx. 40 percent to industrial production and 6 percent to country’s GDP. Approximately 70 percent of the employment growth comes from the SMEs in the Asian region and they contribute towards 90% of industrial units in India and 40% of value addition in the manufacturing sector. In India they accounts for 90% of the industrial units in India1. As the name suggest these businesses are varied from small organization and trading concerns to large retail chains. According to the estimate, there are over 13 million SMEs in India providing employment to 42 million peoples.[3]<\/sup>Due to these reasons it is vital for these companies to invest in their own IP. by adopting unique trademarks and brand names, every trader can create a strong recall value and a position for its product and\/or service in the market.<\/p>\n

\u00a0Earlier, only tangible assets were given great importance in the count of a business. However, at present, intangible assets, such as Intellectual Ventures (IV), Innovation and Technologies form an \u00a0important part in value addition to a business, maybe even more than the tangible assets.<\/p>\n

Intangible assets include-<\/strong><\/p>\n

\u2022 Patents and also utility models for Innovative products and processes;<\/p>\n

\u2022 Copyright and \u00a0related rights for cultural, artistic, literary works and \u00a0for computer software;<\/p>\n

\u2022 Trademarks for their distinctive signs,<\/p>\n

\u2022 Industrial Design for creative designs, including textile designs;<\/p>\n

\u2022 Topographies of the integrated circuits for microchips;<\/p>\n

\u2022 Geographical Indication of goods of a given quality or reputation attributable to the geographical origin \u00a0and<\/p>\n

\u2022 Trade secrets for business secrets for commercial purpose.<\/p>\n

2. DISCUSSION<\/strong><\/p>\n

There was a need for National IPR Programme for SME\u2019s in India. Therefore a proposal was enacted to sustain the growth of the SME sector in India.<\/p>\n

The IPR proposal is for enhancing the awareness about the Intellectual Property Rights (IPR) to enable SME to make it more competitive in the present g environment.\u00a0 The objective is to enhance the awareness about the Intellectual Property Rights (IPR) to enable SME to make right \u00a0decisions about protecting their ideas and business strategies, effective utilization of IPR tools by SME for the technology up gradation and also enhancing competitiveness by providing access to technical facilities and expertise for the \u00a0value addition to their business.\u00a0 This project is to be implemented with a total outlay of US$ 12.5 million over a period of five years.[4]\u00a0\u00a0 India ratified the agreement establishing the World Trade Organization [WTO] which \u00a0contains agreement on Trade Related Aspects of Intellectual Proper rights [TRIPS] which came into force from 1st<\/sup> January 1995.\u00a0 It provides for minimum standards for the \u00a0protection and enforcement on intellectual property rights in the member countries which are required to promote effective, adequate protection of IPR with a view to reducing distortions and \u00a0also impediments to international trade.\u00a0 The obligations under the TRIPS agreements relates to provision of minimum standards of protection within the member countries. In India, Intellectual property rights play an important role in SME development and its protection. They should identify various prospects viz. how to best use an IP structure for own payback and profits. IP may support the SMEs in every part of business development and also competitive strategy which ranges from product development to product design, product marketing to service and from raising financial resources to export or mounting business abroad through IP assignments including franchising and licensing.[5] SME can be used to identify various potential ways such as improvement in the market values and by improving competitiveness of SME by generating the income for SME through IP assignments of IP protected products. IP helps in enhancing the value of the company in the eyes of investors and financial institutions. The Government of India has taken several measures in the field of IPR, including amendments in patent laws and modernization of the IPR \/ Patent Offices, as a response to the globalization and also liberalization of the Indian economy.\u00a0 In a patent regime, Indian firms would have to look for new sources of growth in the future and productive R & D. Improving awareness on IPR amongst businesses, particularly MSMEs, means that they will be able to make informed decisions for protecting their ideas and business strategies.\u00a0 Effective utilization of IPR, particularly patents, has acquired great importance for technology up gradation and growth in the industry as well for becoming competitive in the globalized market. In a market driven global economy, it is necessary that knowledge driven industries in India should increasingly attempt to embrace a network of innovation and R & D by intensifying their collaboration with research institutes, universities and other counterparts. Such efforts need to be particularly supported and encouraged for the\u00a0 SMEs. India generally enjoys large assets of R&D personals and research facilities.\u00a0 While majority of the countries have by the way \u00a0adopted strategy for implementing strong IPR protection for strengthening their industrial demands\u00a0 and trade Indian industries,particularly the small and medium enterprises are lagging behind in recognizing the indispensability \u00a0of IPR and responding positively to the global changes in the IPR. Indian industries, especially the MSME, are not ready to come \u00a0forward for adopting IPR as a business strategy and a means to enhance competitiveness and becoming an efficient player in the global market.\u00a0 It is observed that there is widespread lack of awareness about IPR as a means for creating a competitive edge in the trade and technology market and for value addition to the business.\u00a0 The Indian MSME sector needs more information, orientation and facilities for protecting their intellectual powers.\u00a0 It is essential that the MSME in India should show a positive approach towards creation, protection and management of IPR, so as to enable them to compete in the global market and achieve growth in business.[6]<\/p>\n

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Barriers faced by SMEs in using the IP system<\/strong><\/p>\n

Studies reveal that SMEs have been facing number of hurdles in using the IP system. This is due to their limited knowledge if IP areas and laws, lack of precision about its significance to their business and its application, the system too being complex and expensive to use. Available studies and research on the use of the IP system by SMEs is mostly limited to making use of of patents.<\/p>\n

In a survey conducted by the Institute of Roland Berger Forschungs for the European Patent Office (EPO) for the use of patent by the production industries (excluding micro-enterprises and enterprises in the handicraft sector), results showed that one out of every three companies are likely to be patent applicants as they involved in R&D activities, but only one in six really apply for patents (EPO, 1994). SMEs generally do not apply for IP Protection the core reason being the capital and time required for filing applications, though some SMEs also stated the ineffectiveness and improper functioning of the patent system. It was concluded that there is a major information discrepancy among SMEs on the patent system, which results in small number of applicants filing for patent, and large number of barriers faced due to inefficient and noncooperation of government towards helping entities.<\/p>\n

The capital required for patenting is generally considered as one of the major issues for SMEs.[7]In budgeting the expenditure relating to the acquiring of IP rights, companies not only have to cover application fees, publication cost and maintenance charge but also the costs with respect to legal advice and translation costs entity intends to go for protection abroad.<\/p>\n

Apart from the costs, there are other prevailing elements including application process that may act as a deterrent for SMEs to hunt for IP protection, including timely process for grant of a patent or to obtain a trademark. The increase in number of application for IP protection has resulted in backlog of earlier registration and more time is required for the registration process. There may be a possibility that licenses or partners or exploitation of invention may take place due to delay and uncertainty in granting IP protection to SMEs.<\/p>\n

The use of secrecy as a means to suitable innovation, companies may be dependent on legislation on trade secrets and unfair market competition that prevails and to protect market information. WTO\/ TRIPS Agreement also recognize trade secrets included in IP. However SMEs are unaware how to protect their trade secrets and up to what limit the protection is offered by specific country on trade secrets. SMEs avoid administrative expense and procedures involving patent protection and do not take sufficient measure to safeguard confidential information to protect trade secret. In order to provide protection to trade secret, there is a need to prove the information is secret, it is of commercial value and the true holder of the information has taken all measures to keep it secret or confidential by way of confidentiality agreements, non-disclosure agreements.<\/p>\n

Enforcement of IP rights is another difficulty for SMEs. There should be distinctiveness in the first place that the firms may face a problem in monitoring IP protection.. In the European Union, it was argued that in 49% of sampled firms, are under fear of patent-defence litigation which affects investments in generating inventions.[8]In the States, more of a problem for small enterprises the enforcement of IP rights is than for large firms; as the patents owned by small entities are more often infringed than those by large firms, the small firms less often enter in to litigation. (Koen, 1992).<\/p>\n

The barriers are much broader and more efficient use of IP systems is many. Firstly, lack of awareness of the system reduces the opportunity offered by IP laws and SMEs are unable to avail those, including not just patents but also utility models, trademarks, industrial designs, trade secrets, patent databases, copyright and other IP rights. Lacking in IP management skills within SMEs reducing their capability to avail benefits from the system and, therefore, discourages and stops its future use. Secondly, limited access to the experts and technical member in the field providing legal advice in the IP system complicates and reduces the probability of success in the application procedure for registration and granting of IP rights. Well-organized IP management requires a series of skills starting from the legal to the scientific, expertise and technical and the commercial which SMEs do not possess. Truly, such expertise is lacking in many SME institutions; which also includes some SME consultants and business advisors in the private segment. Thirdly, high costs and capital, not only for acquiring and maintaining IP rights but also for monitoring and controlling IP rights are an further future barrier, chiefly for firms that are working in various geographically dispersed markets and areas.<\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

Some of the key hurdles are:<\/strong><\/p>\n