Introduction to the Basics of Intellectual Property

“Intellectual property is a product of the mind”

“The creator of an Intellectual Property, need to have a monopoly.
Because If the creator has no monopoly in the creation,
There is little or no commercial value of it.”

 

  1. Overview of the traditional form of Intellectual Property
PATENTCOPYRIGHTTRADEMARK
IdentityInventions (Anything,Process,Idea)Original (Not copied) ideaA word, phrase, sign, symbol, shape, or label
WhatNot already known (Novel).
Valuable, Useful to the society.
Creatively produced.
Fixed in tangible medium.
Distinctive identifier of the goods and services.
Used to distinguish your product from others competitive products.
DifferenceConceived / discovered by the inventor.Copyright will not protect the idea only the expression.Unlike copyright or patent, a trademark right is granted only with respect to the specific product claimed by the trademark owner.
How LongFor a finite term
(In Sri Lanka 20 years)
For a finite term.
(life of the inventor + 70 years)
For an indefinite period.
(Usually 10 years, Subjected to renewal before the term expires)

Patent

Patent
  1. What is a “Patent” ?
    1. It is
      • An exclusive right granted by an Act.
      • To the the person who conceives or discovers
      • A non obvious and novel invention
      • To use or further develop
      • Prevent others from manufacturing, using or selling it
      • For a limited time
  1. What is a “Novel” and “Non-obvious” Invention
    1. Novel means that the invention must offer a new development.
    2. “Non-obvious” means a surprising or unexpected development when considered by a person of ordinary skill within the particular field of the invention.
  1. What are the common types of patents?
    1. Utility Patent – for a new invention in respect of a process, machine, manufacture, composition of matter, improvement of existing idea.
    2. Design Patent – For a new design which is in itself nonfunctional but is part of a functional product.
    3. Plant Patent – For a new reproducible plant,whether reproduction occurs asexually or sexually( such as flower).
  2. Does the product must be a novel/creative thing?
    1. No, Usually Patents are granted to novel products, but even if the inventor found a way to employ or alter the natural substances, new useful application is developed they are also protected by patent.

CopyRight

  1. What is a copyright?
    1. It is an exclusive right of copyright holder to an original expression or creative work(“Work of authorshIntellectual Property)
    2. Expression must be,
      • Original
      • made/conceived using some creativity
      • Fixed in a tangible medium
  2. What are the types of creative work?
    1. Collective Works – Several authors combined to make a single/independent work.All are given separate credit for the contribution.
    2. Compilation Works – Preexisting materials,works and information collected and present in a novel fashion.
    3. Derivative Work – New work based on old work where the old work already copyrighted.A derivative work must have sufficient original work added to render it a new work.The right to create and protect a derivative work is included within the exclusive copyright of the original work,and therefore only the original author has the right to create a derivative work,the author may transfer this right by license or assignment. If several authors have created separate works, they may later decide to combine them into a single work,in which event the derivative would be coauthored.
    4. Factual Work – are works that are Non fictional and which contain facts that are in public domain.The ideas and data in a factual work can not be copyrighted,but the presentation is subject to copyright.
      Eg:”Warner Bros might have to pay 900 million if it can’t prove the ghosts are real”.
      This has to be one of the most bizarre Lawsuits in the Hollywood history.An author is suing the studio behind super successful “Conjuring” franchise for 900 million..It is more than The company making the Box office (886 Million). The “Conjuring” movies, and the spin off “Anneabelle” tout themselves as being “Based on the true case files of the Warrens. The Warrens were a married pair of paranormal investigators.Gerald Brittle wrote a book about them in 1980 called “The Demonologist”. Brittle said the Warrens signed an agreement with him in 1978 stating that they aren’t allowed to make or contract any works based on the same subject as Brittle’s book with anyone but him.But in 1997 Warner Brothers signed an agreement with the Warrens for the rights to make movies based on their case files, Which Brittle says violates his pre-existing contract with the Warrens.In 2015 Brittle sent a cease and desist letter trying to fight the release of “The Conjuring 2” saying that he had the exclusive rights to the warrens’ case files.Warner Brothers responded by saying the filmsweren’s based on “The demonologist”,but instead on “Historical Facts”That’s where Brittle and his legal team think they have a chance to beat Warner Brothers.Brittle says there’s nothing “Factual” about the warrens’ case files.because ghosts and witches are not real and neither are dolls who murder people.Brittle and many other skeptics claim that the Warrens perpetuated a hoax for years.Brittle’s lawyer said this “To the extent the Defendants’ movies are not based on historical facts, they can not claim they are protected by the fair use doctrine exemption to copyright”. In order to prove that the Warrens’ findings are indeed “Historical Facts”. Warner Brothers would have to make the biggest paranormal breakthrough in history,and prove that a witch killed herself outside a farmhouse, that evil spirits are real, and that “Aannabelle” is coming to get you.
    5. Work Made for Hire – Work created by an employee within the scope or the under a written contract.The copyright in a work made for hire belongs to the employer or the party that commissioned the work.
  1. What is meant by “Original Expression”?
    1. Facts,ideas and work must be an original creation of author/s.
    2. Facts, ideas and work that have become part of the public domain are not “ original creations” unless the author has added his or her own creative expression.
  2. What is plagiarism?
    1. It is the work copied from another person’s’ work. This is a criminal offense in certain countries.

Trademark

trd
  1. What is a Trademark?
    1. It is a
      • mark(Letter, word, symbol, smell, sound,combination of these)
      • Is used in Commercial/trading activities.
      • To identify producers’ product.
      • To distinguish your product from other competing products
  2. What is the main difference between “Trademarks” and “Copyrights or Patent”?
    1. Trademark right is granted only with respect to the specific goods or services claimed by the trademark owner.There are two categories of classes.
      1. Goods – Class 01 to Class 34
      2. Services – Class 35 to Class 45
  3. Do I need to renew the Trademark?
    1. Yes TradeMark must be periodically renewed (In Sri Lanka 10 years) for an indefinite number of terms.
  4. What are the types of TradeMark?
    1. Associated Mark – Mark which is identical/similar to another existing mark.Second mark is associated with the first.
    2. Certification Mark – this indicates to the public that the product on which it is displayed have certain characteristics or qualities such that they meet specific standards set by the owner of the trademark.
    3. Series Marks – Several similar marks claimed by one person.Marks are similar but not identical by colour and minor alterations.Each mark needs to be registered separately.
    4. Coloured Mark – Mark is limited to specific colour/s as stated in the registration.
    5. Defensive Mark – It’s a very distinctive character of the Trademark which can be protected by registering it.
  5. If I register my Trademark do i need to use it?
    1. Indeed, the use of Trademark in commerce is very important,when renewal also sometimes proof of use is required,if not trademark will be subjected to cancellation.
  6. Is distinctiveness important to Trademark?
    1. The purpose of having a Trademark is to distinguish your product from another’s product.Therefore your Trademark should not be an identical/similar one to another registered Trademark or comprised of forbidden or reserved matters.(Government Crest,Flag,Slogan)
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