THE USE OF IP FOR BUILDING BUSINESSES: CASE STUDIES FROM DEVELOPING COUNTRIES AND WOMEN RUN/ OWNED
- Lalbee S
- Jul 24, 2023
- 4 min read
Written by S. Lalbee, Law Student
The exclusive right to use one's patent, trademark, or copyright for a specific time period is provided by intellectual property rights (IPR), which are legal privileges bestowed by governments within their various sovereignties. By allowing IP owners the chance to recoup their R&D expenses, the primary goal of IPR protection is to encourage innovation.
1. Case Study: From Developing Countries[1]
India IP SME: Indian Employees and the Enforcement of Trade Secrets for Businesses
Non-Disclosure and Confidentiality Agreements are standard components of employment contracts in both India and Europe to safeguard sensitive data that workers could have access to.
BRIEF:
Non-Disclosure and Confidentiality Agreements are standard components of employment contracts in both India and Europe to safeguard sensitive data that employees might have access to. When inserting non-disclosure and confidentiality clauses in employment contracts, it's important to keep in mind that they must not contravene Indian Contract Law. No clause may prevent employees from finding work elsewhere after their services are terminated.
An effective technique to stop a worker from disclosing secret information is an injunction. However, for there to be legal recourse, the owner of the sensitive information must be able to show that the information was actually disclosed; mere suspicion is insufficient. Always keep in mind that regulations might differ significantly from country to country, which can have an impact on parts of a business as fundamental as employment contracts and the obligations that may be placed on employees.
BACKGROUND:
German SME Kreishilfe GmbH, which performs administrative duties for accounting and compliance services, planned to grow into new, attractive sectors. It established a branch in India to carry out that aim. Indian national Mr. X, who was later elevated to General Manager of the Indian branch, was employed by the EU corporation. As a result, Mr. X agreed to sign an employment contract that included provisions for trade secret protection and secrecy.
CHALLENGED:
The confidentiality and garden leave provisions of the agreement should be enforced through legal action, according to legal experts. Kreishilfe filed a civil lawsuit after Mr. X failed to comply. In court, they asserted that: Enforcing the non-compete and garden leave clauses was necessary to stop Mr. X from working for competitors for three months after his resignation and to stop Mr. X from revealing important company information. In order to prevent Mr. X from disclosing any confidential information and from approaching any of Kreishilfe's clients or staff, the EU company filed a lawsuit against him.
DECISION:
Given the arguments, the Judge concluded that any provision limiting an employee's ability to continue working after their employment ends would constitute a trade restraint, in violation of Section 27 of the Indian Contract Act, which states that any agreement that prevents a person from engaging in a lawful profession, trade, or business to that extent is null and void. The Judge also Summarized that:
According to the Garden Leave Clause, it was unfair and improper to prevent Mr. X from finding a legal job elsewhere because it appeared to be in the way of trade. The Court went on to say that restrictions on the use of trade secrets during or after job termination were invalid and could not be upheld. However, it was impossible to conclude that Mr. X had broken his secrecy duties by beginning to work with a representative of Kreishilfe's rival company in the lack of proof to the contrary.
2. Case Study: Women Run/ Owned Businesses
ANUSHA:[2]
Ms. Anusha is a female inventor from Sri Lanka who developed a mixture for adorning cake structures. In 2013, the National Intellectual Property Office (NIPO) granted her patent rights for this invention. Anusha developed a sugar-free mixture using corn flour as the major ingredient after eight years of experimentation. Traditionally, icing sugar is the primary element in cake decorations.
Anusha, 52, a Galle native who later married, relocated to Kandy. She is a proud mother of two adult girls, and her husband is a former army officer. Anusha had noted a few issues with the conventional approach to sugar-based cake embellishments. According to Anusha, she would be willing to sell her patent to someone who was interested in bringing her idea to a global market. Anusha says that "being a woman is the biggest issue" when speaking about the difficulties faced by female innovators and business owners. Although Anusha's invention and the patent in connection with it provided her with immeasurable advantages and benefits on both an economic and social level, they also seem to have assisted her in overcoming obstacles to the growth of her company. Anusha mentioned that her patent and idea brought her financial gain.
Anusha encountered issues and challenges when developing, patenting, and commercializing her new cake-decorating concoction because she is a woman. She started the experiments that led to her idea in 2005. She spent a lot of time in the experimenting phase, but she struggled with the language and had to utilize dictionaries to make sense of what she read online and from other sources. Despite the fact that Anusha filed a patent application with the NIPO in 2010, the patent was not issued until 2013. While she had a lot of support from her family members, especially her mother and husband, she received minimal assistance from other stakeholders. The cost of hiring a lawyer to review her patent application would have been prohibitive for her; at the time, the standard legal expenses were around Rs. 60,000.
References:
[1] Mondaq.com/INDIA/trademark/57856/intellectual-property-rights-in-developing-nations [2]Wipo.int/Export/sites/www/women-and-ip/en/docs/women_and_ip_commercialiazation_asian_region_srilanka.pdf (Accessed on: 21 JUNE,2023)
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