FORMS OF INTELLECTUAL PROPERTY

FORMS OF INTELLECTUAL PROPERTY

1. Intellectual property rights (IPRs) are rights governed by statute that provide individuals with a right to prevent others from exploiting or abusing their intellectual creations.

   • The more common forms of IPR
     • Patents, trade marks, copyright, design rights, confidential information and know-how
       • Some of these rights require registration
       • others are simply acquired at the point of creation without the need for a formal registration process.
       • Patents
         • is a legal title granted to an applicant for protection of an invention. It is a registerable form of IP.
           • Conventions and treaties
             • most countries today also have signed up to international agreements and treaties on the protection of IP and, thus, their patent systems are harmonised to a great extent, such that patent protection at an international level can be conveniently facilitated, registered and administered transnationally in an efficient and economic manner.
               • Patent Cooperation Treaty
                 • The benefit of a country being a party to this treaty is that a national or resident of a PCT state needs to file only one application in order to obtain patent protection in any of the countries that are members of the PCT treaty.
                   • European Patent Convention
                     • is another international patent treaty, established under the European Patent Convention of 1973 and brought into force in 1977.
                       • Refinements of the European Patent System
                         • the original requirements for translation of either the patent specification or the claims, as the case may be, into the languages of the receiving national offices (in accordance with Article 65(1) of the EPC) do not have to be complied with for those states.
                           • Requirements for a Patent
                             • The invention must be novel (new); It must involve an inventive step (not obvious); It must be capable of industrial application; and It must not fall into the ‘excluded’ category for non-patentable matter.
                               • International Patent Protection
                                 • Patent Priority:To obtain worldwide exclusivity for an invention, a patent application first must be filed in a country that is a member of the Paris Convention mentioned above.
                                 • Interference: después de marzo de 2013, la interferencia de patentes ya no será relevante.
                                 • Territorial Protection: an invention only has protection in the country in which a patent has been applied for.
       • Trade Marks
         • The brand or trade mark, in which a business wants to create value and become identified by in the market, can be a word, a signature, a monogram, a picture or symbol, a logo or a combination of these.
           • Registration of a Trade Mark
             • Must be distinctive; Must not be descriptive of the goods; and Must not be capable of deception or confusion with marks already applied for or registered.
               • International Registration
                 • There are two main international agreements on trade mark protection – the Community Trade Mark (CTM) and the Madrid Protocol.
                   • Duration of a Trade Mark
                     • el plazo y el mantenimiento de una marca comercial están condicionados a que el propietario demuestre el uso de la marca.
                       • Trade Mark Use
                         • A brand is used by printing it on the outside of a company's products, on the product packaging and in the brochure material, to associate those products with the brand.
       • copyright
         • is a form of IP designed to protect the rights of a creator of literary and artistic works, computer programs and databases. It does not provide protection for the ideas, concepts or inventions in these works per se.
           • Granting of Copyright
             • comes into operation automatically the moment a work is completed – that is, it subsists in that work for the creator.
               • Works Protected by Copyright
                 • original literary, dramatic, musical and artistic works, published editions of works, sound recordings, films, videos, broadcasts and cable programmes, computer programs and databases.
                   • International Protection
                     • there are international treaties that deal with copyright and to which most countries have signed up, notably the Berne Convention for the protection of literary and artistic works, and the Universal Copyright Convention (UCC).
                       • Registration of Copyright
                         • the laws of some countries do require registration in order to have a formal record of the work that is protected by copyright.
                           • Ownership of Copyright
                             • The rights covered by copyright can be divided into economic rights and moral rights.
                               • Duration of Copyright
                                 • the duration of copyright today for literary, dramatic, musical and artistic works, computer programs and databases, begins with the date of creation by the author and expires 70 years after his death. For other works, such as sound recordings, broadcasts, cable programmes, etc., until recently the duration of copyright has been 50 years after the date of first recording or transmission of the performance.
       • design rights
         • design rights are now directed towards the ‘individual character’ of a design.
           • The Community Design
             • In October 1998, the EU introduced Directive 98/71/EC, which harmonised the national systems for protection of designs across the member states.
               • Requirements of a Design
                 • It must fall within the definition of a ‘design’; It must be novel (absolute worldwide novelty, similar to patent law); and It must have ‘individual character’.
                   • Registered Community Design
                     • The registered design provides protection for an initial term of five years, and for up to 25 years in total, upon payment of the renewal fees for each successive five-year period.
                       • Unregistered Community Design
                         • This right is more akin to copyright protection of a design – that is, the owner can prevent others from copying the design, but does not have a monopoly on the design, which is the important difference between this right and that for a registered design.
       • SECRET KNOW-HOW
         • This form of IP usually relates to a technology process or manufacturing method, which is not patented either because it does not satisfy the criteria for patentability, or because a decision is made not to patent it, since in order to apply for a patent, full details of the process must be disclosed.
           • the IP laws of many countries provide for ‘prior user’s rights’ as a defence against infringement in such cases, if the original owner can show that the know-how already was being used for some time by him.
             • the form of secret know-how, which forms part of a company’s key manufacturing technology or service should be documented and recorded safely and marked as ‘Trade Secret’ or ‘Secret & Confidential’.