Intellectual Property Law: Technology Transfer and IP

Abstract

Technology transfer has been instrumental in promoting global innovation and development by facilitating the seamless exchange of advanced and complex technologies between companies and across countries. This paper provides detailed analysis of the role of intellectual properties with respect to technology transfer, highlighting how important is IP in providing protection to these technological developments and cover various aspects of the technology transfer including its types.

This paper outlines the various laws, agreements and treaties that govern and deal with technology transfer. The various benefits of entering into agreements, including its legal enforceability, IP protection and dispute resolution are being listed. The role of national laws and international treaties is studied in the context of technology transfer development.

Case study of cheetah reintroduction by Indian government is being examined wherein the practical application of technology transfer is looked into. The conservation efforts and international collaborations by our Indian government are being highlighted. At last, the paper concludes by stating some suggestions and giving a gist of the need and importance of technology transfer and also highlighting the important role of Intellectual property.

Keywords

Technology Transfer, Intellectual Property Rights, Technology Transfer Agreements

Introduction

Technology Transfer (TT) is a process of providing authorization for transfer or movement of inventions, scientific knowledge, trade secrets, intellectual property, skills etc. from the inventor, producer, institutions to some other person or the user. The main objective of technology transfer is to ensure overall development and transformation of individuals, organizations, society or countries using the transferred technology.

Intellectual Property (IP) is an intangible design or creation made with the help of human intelligence. The relationship between Technology Transfer and Intellectual Property is very crucial, as IP plays an important role in promoting, controlling and regulating the transfer of technology.

This article provides a brief insight about how Intellectual Property and Technology Transfer are deeply interconnected? How the IP helps in securing rights, defining the ownership and facilitating the transfer of technology? What measures does our country take to encourage technology transfer, and how are regulations framed to safeguard it?

Technology Transfer

Technology Transfer (TT) means sharing, transferring, or distribution of knowledge, skills, technology, scientific methods, processes, and intellectual property from one person to another person. The main aim of technology transfer is to have a hold upon scientific and technological advances for promoting innovation, economic growth, and its practical applications. Technology Transfer can be of different types like:

1. International technology transfer: In this movement of technology takes place across national borders, such as when a developed country transfers advanced technology to developing countries and countries having their economies in transition.
2. Domestic technology transfer: It refers to the sharing or dissemination of technology from one part of the country to another part.
3. Inter-industry or inter-sectoral technology transfer: In this, the movement of technology happens from one industry to another or from one sector to another.
4. Cross-firm technology transfer: When a technology is shared or transferred by one company to another company.
5. Intra-firm technology transfer: In this, the technology is used and shared amongst the same organization or within the same company operating at different locations. For example, technology relating to firewall protection was transferred by the SBI Mumbai division to the SBI Kolkata division.

Technology transfer is extensively used in nearly all scientific and industrial sectors like pharmaceuticals, medical gadgetry, artificial intelligence, aerospace, defence, energy sources, etc.

Role of Intellectual Property in Technology Transfer

Transfer of technology usually takes place amongst countries, firms, and business for commercial purposes like purchasing, selling, or granting authorization for the usage of the skills, knowledge, or products to generate royalty income out of it. Intellectual property plays a very crucial role in securing the technology transfer by providing the owner or the organization absolute rights which in turn helps to boost the business’s performance. Safeguarding the transfer of technology with the use of Intellectual Property Rights can minimize the possibility of commercialization of that technology by the adversary.

Different kinds of Intellectual Property linked with technology transfer are as follows:

1. Patents: New innovations, scientific processes, or technological advancements are provided legal protection under Patent law by giving the possessor exclusive rights to use, produce, sell, and license the invention for a specified period of time.
2. Trademarks: The Trademarks Act helps the inventor safeguard his brand’s image and reputation by providing clear differences between the inventor’s symbols, logo, etc. from his competitors.
3. Copyright: The copyright Act provides creators of original works, including software and artistic creations, with the exclusive authority to control the use and disposal of their works.
4. Trade Secrets: Trade secrets consist of confidential business knowledge or techniques, such as formulas, methods, or processes, which provide a competitive advantage to the inventors over their competitors and are protected as long as they are kept secret.
5. Industrial Designs: During technology transfer, the buyer may use the design elements provided to develop and market new products which in turn improves both the attractiveness and utility of the technology.
6. Plant and Biodiversity Variety Rights: Here, the rights relating to genetic resources are being protected and it is ensured that its usage is done in a responsible manner. Technology transfer involves sharing these protected plant or biological varieties and related technology with other entities to promote the conservation and sustainable use of biodiversity.

Conceptual Framework of Technology Transfer and Intellectual Property

In India, there are various national laws and guidelines that are set up to regulate the technology transfer with an aim to promote the dissemination of technology and safeguarding the intellectual property by aligning them with the national interests.

Technology Transfer Agreements (TTA)

When two or more parties enter into a legal contract that specifies the terms and conditions for the usage, manufacturing, selling, disposal, and import-export of a technology or intellectual property rights, it is known as a Technology Transfer Agreement. These types of agreements are usually executed to promote and safeguard the transfer of technology, skills, products, and many more. There are certain benefits with respect to these agreements, namely:

1. Legal Enforceability: The parties to the contract mutually agree to perform their respective obligations and adhere to the terms and conditions outlined in the agreement, which is drafted by applicable laws.
2. Intellectual Property (IP) Protection: The technology owner can safeguard their rights by drafting a formal agreement that provides guidelines with respect to the permissible and prohibited uses of the technology by the transferee. This agreement provides legal recourse in the event of unauthorized or illegal use.
3. Dispute Resolution: The agreement lays down provisions relating to dispute resolution, allowing the parties to address and settle the matter in an amicable way.
4. Commercializing Technology: The transferor can secure a safe income path from the technology through a technology transfer agreement, which may include provisions for the payment of royalties, licensing fees, or other forms of revenue.
5. Cost Effectiveness: The transferee can easily gain access to complex technologies by entering into a collaboration or partnership with the transferor, thereby reducing research and development costs and expenses.

Intellectual Property Rights (IPR)

In India, the interests of intellectual property holders are protected through various statutes, including the Patents Act, of 1970, the Trademarks Act, 1999, the Copyright Act, 1957, the Designs Act, 2000 and others. These Acts provide a legal framework for the regulation and execution of agreements related to technology transfer.

The Patents Act, 1970[1]: The Patents Act lays down provisions related to the licensing of patents, granting the licensee the rights to use, manufacture, and sell the patented technology. The Act clearly delineates the distinction between the patent owner and the licensee, specifying their respective rights and liabilities. The Act clearly requires that an agreement be executed in writing by the parties to ensure its validity (Section 68). The Act provides remedies and reliefs for cases of infringement or unauthorized use of the technology (Section 104 to 115).

Non-Disclosure agreements/ Confidential Agreements: This type of legal agreement is executed by the parties involved in the technology transfer to ensure that the transferee does not misuse or exceed the rights and interests transferred to them or disclose trade secrets to the general public.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[2]: The TRIPS Agreement plays a critical role in technology transfer by establishing a global framework for the protection of intellectual property. It sets forth comprehensive guidelines and standards for the enforcement and protection of intellectual property rights, with the objective of ensuring uniformity in IP laws across its member countries. Article 66.2 of this agreement states that institutions and enterprises should be granted incentives with an aim to promote and encourage transfer of technology from the developed member countries to the less developed member countries. In this manner, a robust and sustainable technological foundation will be established in less developed countries.

Protection of Trade Secrets Bill, 2024[3]: “In March 2024, recommendation was made by Law Commission of India with respect to this Bill. The main aim of this bill is to make sure that a proper legal procedure is being established with respect to protection of the trade secrets. This Act will significantly affect both intellectual property rights and technology transfer by establishing strict policies and regulations to prevent the misuse and unauthorized disclosure of trade secrets. This will promote and encourage technology transfer and foreign collaborations, thereby contributing to the overall development of the country and its people. The Bill includes various aspects such as provisions relating to the rights and responsibilities of shareholders, infringements and legal remedies, compulsory licensing and many more”.

Key Sectors Involving Technology Transfer

In today’s evolving world technology transfer happens in almost every sector with a view to foster transformation and innovation, as well as to serve for the betterment and welfare of the society. Some of the sectors where most of the technology transfer takes place are as follows:

Pharmaceutical Industry: Pharma sector is one of the prominent sectors using technology transfer mechanism as it involves lots of Research & Development which is highly time consuming as well as requires huge costs and investments to be made. Here, mostly formulas relating to drugs and medicines, highly advanced medical devices etc. are usually transferred.

Defence Industry: This industry is one of the largest sectors that heavily relies on the technology transfer process, as many developing and underdeveloped countries encounter challenges related to national security, protection, and development. To address these issues, these countries collaborate with more developed nations to acquire advanced technologies, such as satellite tracking systems, sophisticated military equipment, and technologies related to nuclear and hydrogen utilization.

Information Technology Industry: The IT industry has significantly benefited from technology transfer mechanisms, which have facilitated the transfer of complex software technologies, hardware tools, and processes. This has enabled companies to develop and enhance their products. Additionally, the transfer of artificial intelligence and machine learning technologies has allowed companies to manage resources more efficiently, automate processes, and reduce overall costs.

Case Study

Project Cheetah by Government of India[4]

The cheetah program is one of the best examples of technology transfer. In this program, the government of India had put in a lot of efforts with an aim to reintroduce the cheetah again on the Indian land.

Here, the countries of Namibia and South Africa entered into an agreement by agreeing to transfer the knowledge about the Cheetah, its genetic framework, breeding, protection and habitat management. Numerous international experts were called upon to evaluate, oversee, and ensure the successful reintroduction of cheetahs into the Indian environment. Various advance machines, gadgetries and instruments, such as camera traps, satellite tracking and monitoring systems, were transferred from other countries into India. Indian experts were being sent to other countries to acquire expertise and training related to cheetah management and behaviour.

This case explains how technology transfer plays an important role with respect to the conservation and introduction of new organisms between different countries to encourage and build good relations amongst each other and head towards collective development.

Analysis

Technology Transfer is going to be the future of this world which is rapidly heading towards modernization. However, there are several aspects of this field that need to be addressed and looked upon by the institutions, organizations and countries to ensure smooth functioning of the Technology Transfer mechanism. These include:

High deployment cost: Many technologies require huge amount of investments and costs to be incurred for successful setup and operations which poses challenges for most underdeveloped and developing countries. Developed nations should provide incentives and funding to less developed countries to encourage and promote welfare and sustainable development.

Intellectual Property Rights Barriers: At the time of covid pandemic, World Health Organization (WHO) had presented a proposal to many wealthy nations and the European Union in order to waive of their rights relating to patents on vaccine and medical technology. Various leading pharmaceutical organizations declined the proposals to transfer their technologies.

In my view, during challenging times, it is essential for everyone to come together to support and assist those who cannot afford the high costs of medicinal and healthcare facilities, regardless of national interests, monetary benefits or personal goals.

Suggestions

After analysing this information, we get know that there are many aspects where improvements and changes can be made to security and innovation in the field of technology transfer. Some suggestions to be addressed and taken into account are:

• Standardization of Technology Transfer Agreements and Regulations Worldwide: The World Trade Organization (WTO) should collectively along with its member nations develop standardized rules and regulations aimed at streamlining the technology transfer process. This collective effort will ensure that intellectual property laws are harmonized and consistent across all member countries.
• Promoting and Easing Access of IP to New Ventures and Small Enterprise: Countries should take proactive measures to support emerging and small businesses by simplifying the licensing process for accessing intellectual properties and providing financial resources and investments to facilitate the acquisition of advanced technologies.

Conclusion

Technology transfer is an important aspect of this modern world which ensures promotion of innovation, growth and global development. It encourages sharing of advance technologies with an aim to boost the economic progress and improve the people’s quality of life. As the world is heading towards globalization and modernization, the scope of technology transfer is continuously going to grow.

Intellectual Property Rights and Technology Transfer go hand in hand in order to make sure that a proper and secure legal framework is provided to protect the technologies as well as the inventors and creators are not deprived of their rights to get fairly compensated and protected. To take technology transfer to its full potential, it is necessary to establish a comprehensive and supportive legal framework that governs the promotion, utilization, and equitable access to these technologies on international as well as domestic level.

To conclude my article, I would like to highlight a quote that precisely captures the essence and significance of technology transfer.

“Give a man a fish and you feed him for a day. Give a man a fishing rod, and he feeds himself and his family for as long as the rod lasts. Help a man develop the knowledge and means to improve the fishing rod and to design and produce new ones, and he may feed himself and his society for years to come.”[5]

This analogy portrays how technology transfer not only provides individuals and organizations with immediate solutions but also fosters long-term growth and development by enabling innovation and self-sufficiency.

References

[1] Patents Act 1970

[2] Agreement on Trade-Related Aspects of Intellectual Property Rights, (1995) T.I.A.S. No. 348

[3] Vikrant Rana, Gaurav Goswami, ‘Safeguarding Secrets: 22nd Law Commission’s push for Trade Secrets in India’ (2024) Bar and Bench < https://www.barandbench.com/law-firms/view-point/safeguarding-secrets-22nd-law-commission-push-for-trade-secrets-in-india#:~:text=The%20Bill%20includes%20provisions%20for,practices%20within%20businesses%20and%20industries.> accessed 3 February 2024

[4] ‘Project Cheetah in India’ (2024) National Tiger Conservation Authority <https://ntca.gov.in/assets/uploads/Reports/AITM/Cheetah_narrow_booklet-6×11-lowre.pdf> accessed 3 February 2024

[5] Arunabha Ghosh, Nandini Harihar, Prayank Jain, ‘Co-development of the technologies of future’ (2022) Stockholm Environment Institute (SEI) <https://www.sei.org/wp-content/uploads/2022/05/co-development-technologies-stockholm50backgroundpaper.pdf> accessed 3 August 2024