New Frontiers in Intellectual Property Rights

Intellectual property law was not built in a day – and it certainly wasn’t built for a world of microchips, pharmaceutical trade secrets, or centuries-old herbal formulations. For the longest time, IP protection revolved around patents, copyrights, and trademarks. But as technology accelerated and global trade deepened, it became clear that these traditional categories were leaving significant gaps. New forms of creative and economic value were emerging – from the three-dimensional blueprints etched inside a silicon chip to the medicinal wisdom encoded in ancient Ayurvedic texts. This post examines how international law and national frameworks have responded to these gaps, and what it means for the global IP landscape today.

Why the IP system needed to expand 🔗

The original architecture of intellectual property law was designed for a world of physical inventions, literary works, and commercial marks. It did not anticipate the semiconductor revolution of the 1970s and 1980s, or the explosion of global pharmaceutical trade driven partly by appropriating the traditional knowledge of indigenous communities. As markets globalised and technology became the primary driver of economic growth, IP-intensive industries pushed hard for an international framework that could protect these new categories. The result was the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded in 1994 as part of the Uruguay Round of trade negotiations and enforced from January 1, 1995. TRIPS is widely regarded as the most comprehensive multilateral agreement on intellectual property, and it brought several entirely new categories of IP rights under binding international discipline for the first time.

Layout designs of integrated circuits 🔗

One of the most technically specific – and legally novel – protections introduced under TRIPS concerns the layout designs of integrated circuits (ICs). An integrated circuit is a product in which transistors, resistors, and other electronic elements are inseparably formed in and/or on a piece of semiconductor material to perform an electronic function. The layout-design (also called topography) refers to the precise three-dimensional arrangement of those elements – essentially, the architectural map of a chip.

Designing an original IC layout requires enormous investment in engineering talent and time. Yet once a chip is on the market, a competitor can theoretically reverse-engineer and reproduce that layout at a fraction of the original cost. Traditional patent law was poorly suited to protecting this – a chip contains hundreds or thousands of individual elements, each potentially patentable separately, making comprehensive patent coverage impractical. Copyright protection was equally awkward, since circuit layouts are functional rather than purely expressive works.

TRIPS addressed this by requiring all WTO member countries to protect IC layout designs under Articles 35 to 38, building on the earlier Washington IPIC Treaty of 1989. Protection applies to layouts that are original – meaning they result from the creator’s own intellectual effort and are not commonplace in the industry at the time of creation. The exclusive rights granted include reproduction, importation, sale, and other forms of commercial distribution of a protected layout. The protection term is ten years, an improvement over the eight years provided under the IPIC Treaty.

India’s response: The SICLD Act, 2000 🔗

India, as a WTO signatory, enacted the Semiconductor Integrated Circuits Layout-Design Act, 2000 (SICLD Act) to fulfill its TRIPS obligations. This is a sui generis legislation – meaning it is a standalone, purpose-built law rather than an amendment to existing IP statutes – because no existing framework adequately covered this category. The Act defines a layout-design as the arrangement of transistors, circuitry elements, and lead wires in a semiconductor IC, whether expressed physically or in any other manner.

Registration is a prerequisite for protection under the Act. A designer must file an application with the Semiconductor Integrated Circuits Layout-Design Registry, providing schematic diagrams, GDS II format files, and (where available) physical chip samples. Once registered, the proprietor receives exclusive rights for ten years. Willful infringement attracts serious penalties – up to three years’ imprisonment and fines ranging from ₹50,000 to ₹10,00,000. Notably, India’s law is comparatively liberal: unlike in the United States, where protection is typically tied to a chip embedded in a device, Indian law protects the layout design even when it is not implemented in an actual product.

Despite its robust framework, the SICLD Act has seen relatively few registrations in practice – a missed opportunity given that Bengaluru is one of Asia’s leading semiconductor design hubs. Awareness and utilisation of this protection remain significant challenges for the industry.

Undisclosed information and trade secrets 🔗

The second major new category introduced by TRIPS is the protection of undisclosed information, governed by Article 39. This covers what most people recognise as trade secrets: commercially valuable information that is kept confidential and derives its value precisely from not being publicly known. Article 39 sets out three conditions for protection – the information must not be generally known or readily accessible to the relevant circles, it must have commercial value because of its secrecy, and reasonable steps must have been taken to keep it confidential.

Article 39 also contains a specific and somewhat contentious provision on test data submitted to regulatory authorities for the approval of pharmaceutical or agrochemical products. When a company submits undisclosed test data to a government agency to obtain marketing approval for a new product, TRIPS requires member countries to protect that data against unfair commercial use and against disclosure, except where necessary to protect the public. This provision became a major flashpoint between developed and developing nations in subsequent trade negotiations, with developed countries pushing for extended “data exclusivity” periods that would delay generic competition.

In India, trade secret protection is not covered by a dedicated standalone statute. Instead, it is enforced through a combination of contract law (breach of confidentiality agreements), common law principles of breach of confidence, and to some extent the law of tort. There is growing advocacy among legal practitioners for a specific trade secrets law in India, particularly as the country positions itself as a global hub for technology and innovation.

Traditional knowledge: The most contested new frontier 🔗

Of all the emerging IP categories, the protection of traditional knowledge (TK) is perhaps the most philosophically complex. WIPO defines traditional knowledge as the knowledge, skills, and practices developed, sustained, and passed down across generations within a community, often forming part of its cultural or spiritual identity. This includes medicinal formulations, agricultural practices, ecological knowledge, and cultural expressions.

The problem TK protection seeks to address is biopiracy – the appropriation and patenting of traditional knowledge by third parties, often from developed countries, without the consent of the originating communities and without sharing any resulting benefits with them. India encountered this problem acutely: in 1995, the United States Patent and Trademark Office granted a patent on the wound-healing properties of turmeric powder to the University of Mississippi Medical Center. India successfully challenged this patent by proving prior art – but the process was costly and time-consuming. A similar challenge was mounted against a European patent on neem’s antifungal properties.

These cases revealed a systemic vulnerability: patent examiners in foreign offices had no access to India’s vast repository of traditional medicinal knowledge, recorded in Sanskrit, Arabic, Persian, Urdu, and Tamil. What they could not find, they could not reject as prior art.

India’s Traditional Knowledge Digital Library (TKDL) 🔗

India’s response was the Traditional Knowledge Digital Library (TKDL), established in 2001 as a joint project of the Council of Scientific and Industrial Research (CSIR) and the Department of AYUSH. The TKDL is a digital repository that has documented and formatted over 34 million pages of information covering approximately 2,260,000 traditional medicinal formulations drawn from Ayurveda, Unani, Siddha, and Yoga. All of this information has been translated into five international languages – English, German, French, Spanish, and Japanese – and made available to major patent offices around the world under Access and Non-Disclosure Agreements.

The TKDL is a defensive protection mechanism: its primary goal is to prevent erroneous patents by providing patent examiners with searchable prior art, rather than to give communities affirmative rights over their knowledge. Its effectiveness has been remarkable. In Europe alone, India brought about the cancellation or withdrawal of 36 patent applications relating to traditionally known medicinal formulations within a short period. The TKDL team has identified over 1,155 biopiracy claims at various patent offices, many of which were legally restrained. WIPO’s Intergovernmental Committee (IGC) has acknowledged India’s model and is actively encouraging other biodiversity-rich nations to develop similar databases.

However, TKDL’s scope has limits. It primarily covers codified, text-based knowledge from classical medical systems. Oral traditions and local community knowledge remain largely unrecorded and unprotected. Many tribal communities are also wary of participating in documentation exercises due to concerns about how their knowledge might be exploited once it enters a state-managed database.

International developments: Toward a binding treaty 🔗

At the global level, the protection of traditional knowledge has been a subject of intense negotiation within WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In 2024, a significant milestone was reached: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted by consensus among more than 150 countries. This treaty marked the first time that traditional knowledge and genetic resources were formally inscribed into the global IP system. It establishes mandatory disclosure obligations – patent applicants must disclose the origin of any biological resources or traditional knowledge used in their invention. For India, this is a substantial achievement after years of advocacy at multilateral forums.

The broader picture: A global IP system in transition 🔗

The emergence of these new categories reflects a larger truth about IP law: it is not a static system but a constantly evolving response to economic and technological change. As the WTO itself acknowledges, since TRIPS came into force in 1995, the scale and nature of cross-border commercial transactions in knowledge have changed fundamentally. Integrated circuit design, pharmaceutical trade secrets, and traditional medicinal knowledge were all economically significant long before the law caught up with them.

For developing countries like India, the challenge has been a dual one. On one hand, they are obligated under TRIPS to provide robust protection that benefits innovators and knowledge-holders, including their own citizens. On the other, they must ensure that these protections do not entrench inequalities – that the global IP system does not simply transfer wealth from knowledge-rich communities in the Global South to corporations in the Global North. India’s efforts on the TKDL front, and its successful lobbying for the 2024 WIPO Treaty, represent an important rebalancing in that regard.

The road ahead involves deepening these protections – extending TKDL to cover oral and community-specific knowledge, enacting dedicated trade secret legislation, and ensuring that the SICLD Act’s protections are actually used by India’s booming semiconductor design sector. At its core, the expansion of IP rights into these new domains is about one principle: those who create economic and cultural value deserve to be recognised for it and to benefit from it, whether they are chip designers in Bengaluru or Ayurvedic healers in rural Rajasthan.

What do you think? As traditional knowledge becomes part of the formal IP system through mechanisms like TKDL and the 2024 WIPO Treaty, should communities themselves have direct enforceable rights over their knowledge – or is defensive protection through government-managed databases sufficient? And given how rarely India’s SICLD Act is actually used despite the country’s semiconductor design strengths, what would it take to bridge the gap between the law on the books and its practical adoption?

References

1. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
2. https://www.indiacode.nic.in/bitstream/123456789/1998/1/200037.pdf
3. https://stratjuris.com/ip-protection-of-integrated-circuit-ic-layout-uncharted-territory/
4. https://www.wipo.int/web/wipo-magazine/articles/protecting-indias-traditional-knowledge-37721
5. https://chambers.com/articles/safeguarding-traditional-knowledge-under-indian-patent-law-can-legal-frameworks-keep-pace
6. https://www.drishtiias.com/daily-updates/daily-news-analysis/wipo-treaty-protecting-genetic-resources-and-traditional-knowledge
7. https://wto.org/trips