INTELLECTUAL PROPERTY

INTELLECTUAL PROPERTY

1. Intellectual property rights (IPR) are rights that are governed by the statute they offer to people with the right to prevent third parties from exploiting or abusing their intellectual creations. The most common forms of intellectual property rights are patents, trademarks, copyright, design rights, confidential information and know-how, and they all play a important role in the innovation process.

   • PATENTS
     • A patent is a legal title that has an applicant for protection of an invention. It is a registrable form of IP. It must be requested at the patent office by presenting a 'patent memory' reveal how the invention works. The patent is granted for a limited period by the patent office, which acts as a government instrument in the country in which the patent.
       • Conventions and treaties
         • Every country’s legislation includes laws for the protection of IP, in which there is a provision for patent laws to govern the protection of inventions in that country. These laws establish the country’s national patent and trade mark office, which then administers the country’s patent and trade mark systems.
           • The Paris Convention
             • the Protection of Industrial Property of 1883 is the oldest treaty in the world dealing with the protection of IPR.
               • The body charged with administration of the Paris Convention is the World Intellectual Property Organisation (WIPO), an agency of the United Nations, established in 1967 under the WIPO Convention to promote the protection of IP worldwide.
                 • In 1995, the World Trade Organisation (WTO) introduced an agreement to cover all aspects of IP as it relates to international trading. This agreement, referred to as TRIPS (Agreement on Trade Related Intellectual Property Rights), is the first and most comprehensive international agreement to date on IP law in this regard.
           • 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. The PCT application, also referred to as an ‘international patent application’, provides for a single patent application being filed at a single receiving office, in one language and in accordance with one set of rules.
               • The convention, through the institution of the European Patent Office (EPO), introduced an autonomous legal framework for the provision of patent protection in its member states.The benefit of the EPC system is that one application may be filed at the European Patent Office in Munich (or one of its branch offices) and a European patent is then granted for the member states in which the applicant seeks protection. However, similar to the PCT system, the granted patent is not a single patent covering all the requested states, but rather a series of individual patents, which have to be ‘validated’ by the national patent offices of each Member State.
     • Requirements for a Patent
       • Patent law requires that certain conditions are met in order for an invention to be patentable. Specifically, the following criteria must be fulfilled: 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. Additionally, the applicant is required to disclose sufficient information in the patent application to show how the invention works.
   • BRANDS
     • A trade mark is the symbol by which the goods of a particular manufacturer or trader can be identified and distinguished from the goods of others. Trade marks and service marks provide protection for the goodwill and reputation of a company in its products and services, as opposed to protection of the products
       • registration of a trade mark
         • It may be possible in certain countries for a company to assert ‘unregistered rights’ over a mark if it has been used by the company in the marketplace for some time and has become synonymous with the company and its goods (without infringing the registered mark of another business). However, in today’s competitive climate of a global economy, a trade mark is an integral part of a company’s
       • Protection for a trade mark
         • is granted by the patent and trade mark office in the country in which protection is sought. To qualify for registration, the 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.
       • Duration of a Trade Mark
         • The term of a trade mark in most countries is for 10 years, which may be renewed indefinitely for subsequent 10-year terms. The term and maintenance of a trade mark, however, is conditional upon the owner demonstrating use of the mark. Under the CTM system, it is necessary to prove use within five years of registration. Like wise, it is important to monitor and to strictly enforce the mark, in order to maintain exclusive rights to it.
       • Trade Mark Use
         • It is important to understand the grammatical nature and use of a trade mark. A trade mark is an adjective and not a noun or a verb, which are ‘generic terms’. Generic terms are words that have everyday use and, therefore, are not permitted as trade marks. By using the mark as a noun or verb, the word becomes genericised – that is, used as the name of the product (descriptive), instead of qualifying the product by indicating the source of it (distinctive). The form of use therefore, is the ‘mark’ (adjective) followed by the ‘noun’ (a generic word) – for example, a Macintosh computer. ® The mark also must be preserved in the form in which it is first registered, otherwise modifications or changes to it cause the word to become a generic term and protection for it will be lost.