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AN OVERVIEW OF TRADEMARKS,

COPYRIGHT AND PATENTS

BY
Dr. Basavaraj K. Nanjawade, M.Pharm., Ph.D

Asst. Prof.
Department of Pharmaceutics,
KLES College of Pharmacy,
JN Medical College Campus,
BELGAUM – 590 010
E-mail: bknanjwade@yahoo.co.in
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Constitution

The Congress shall have the power


 . . . to promote the progress of science


and useful arts, by securing for limited
times to traders, authors and inventors
the exclusive right to their respective
trading, writings and discoveries
....

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TRADEMARK

Protection for Traders

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What is a Trademark?

A trademark is something that


distinguishes your products from others
within the market.

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A Trademark cab be:

A word or name
A logo
A slogan
A design

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In certain cases, this can be
extended to…

A colour scheme
A smell
A sound

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Trademark or Trade name
A trade name is slightly different to a
trademark. A trade name refers to the
name of the business or company, where
a trademark refers to products/services.
However a trade name can be used
as a trade mark if it is used to help
distinguish between products and service.
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Objective of Trademarks

1. To prevent confusion among


consumers as to the source of goods
or services;
2. To permit the trade mark owner to
control the products’ or services’
reputation.
3. To protect the good will that the
trademark owner has built up in his
products and services.
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Qualifying as a Trademark

Trade marks cannot be freely


registered and will be investigated
thoroughly before registration is
approved.

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To qualify for registration the
trade mark must;
. A trade mark is a symbol or sign which
differentiates one type of business from
another.
. A sign can include a business logo,
words/content or anything similar.
. In order for a trade mark to be
registered, it must be sufficient distinct for
the service/ goods it is applied to cover.
. Obviously, it must not be similar to
existing trade marks, nor can it be
deceptive or illegal in any way.
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Registering a Trade mark
You cannot simply apply for a trademark
and assume it will be accepted – there is
a rigorous examination process which
takes place by the patent office before
you will find out it your application has
been successful. You can read about the
complete application process
www.uspto.org
www.patent.gov.uk
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What is the  symbol

This symbol stands for registered trade


mark (RTM), and clearly can only be used
once your are the owner of the mark.
The  symbol usually goes after the
trade mark, in a smaller type size than
the mark itself, and in a raised position,
but this is not compulsory.

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Can I Use The TM Symbol

A company/trade can use the TM


symbol, however this does not mean
the trade mark has been registered.

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Service Marks (SM)
A service mark (SM) is exactly the same
as a trade mark with the exception that
it.

The same rules and principles apply will


consider trademarks to include service
marks unless for any reason they need
to be addressed separately.

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What Does , TM & SM mean &
when can I use them?

. A party can display  next to a trademark


or service mark that has been legally
registered.
. This symbol will inform people that you
have the right to take legal action if the
trademark or service mark is violated.
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What Does , TM & SM mean
& when can I use them?
. A Party can display TM next to a
trademark that has not been registered.
However, there must be a public claim to
the trademark.

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What Does , TM & SM mean
& when can I use them?
 False claims to a registered mark-using
the with non-registered marks-is seen
as an act of fraud and offenders will be
prosecuted.
 A party can display SM next to a service
mark that has not been registered.
However, there must be a public claim
to the service mark.

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COPYRIGHTS

Protection for Authors

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COPYRIGHT

 A copyright is an author’s legal


ownership of a creative work.
Examples of such creative works
include a writing, a pictorial work,
a three dimensional sculptural
work, a musical composition.
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What Is Protected by Copyright?

 "original works of authorship fixed


in any tangible medium of
expression, now known or later
developed, from which they can be
perceived, reproduced, or otherwise
communicated, either directly or
with the aid of a machine or device

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Conditions for Copyright

 Must be original work:


Authorship must be original and
cannot simply be copied or
reproduced from another author.

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Conditions for Copyright
 Must be fixed in a tangible
medium: Cannot reside in the
author's mind, but must be
transferred from the author’s mind
onto a fixed tangible medium, such
as a writing, a sculpture, a musical
work, etc.

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Not Protected By Copyright

 Ideas are not protected:


 including concepts, methods of
operation, business systems,
processes, procedures, discoveries
and natural laws.

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Not Protectable By Copyright
 Facts and research results
 Work without original authorship
 Facts or discoveries
 Government works created by the
government.

 These are not proper for copyright


protection, but rather should be
protected viaDept.the
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of Pharmaceutics
Protectable Works
 Literary works and computer programs.

 Pictorial, graphic and sculptural works .

 Copyright in useful articles: The aesthetic


aspects of a useful article may be
protected by CR if they are separable
from the functional, structural
components

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Protectable Works
 Blueprints
 Sound recordings
 Architectural works
 Fictitious characters
 Compilations
 Derivative works

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Rights Under Copyright Law
 1) to reproduce or copy the work;
 2) to prepare derivative works;
 3) to distribute copies to the
public;
 4) to perform in public (such as for
a play, a musical composition);
 5) the right to display the work in public

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Fair Use
 Fair use is not an exception to
infringement, rather, once
infringement has taken place it
provides a legal excuse for having
infringed on the author's
copyright.

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Who Owns The Copyright?
 The author of the work is the initial
owner of the copyright.

 Works made for hire: the copyright is


owned by the employing party

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Work Made For Hire
 1) Work created by an employee
while acting within the scope of
the employment, particularly
where the hiring party has a right
to exercise control over the author
in the way the work is created.

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Work Made For Hire
2) Work by independent contractor
a) the work is a contribution to a
collective work; part of an audiovisual
work; a translation; a supplement; a
compilation; an instructional text;
answers for a test; or an atlas; AND
b) if the parties agree in a written
contract that the work will be
considered a "work made for hire."
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Copyright Notice
 Not required in the U.S.

 Required in other countries.

 Example:

– © 2005 by T-series. All Rights Reserved.

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Copyright Registration
 Copyright is automatic; registration is
not required.

 However, registration puts the world on


notice and provides the author with
additional rights in infringement
litigation.

 Registration is recorded by the


Copyright Office of the National Library
of Congress. Dept. of Pharmaceutics
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Term Of Copyright
Works created during or after 1978:
copyright good for the life of the author
plus 70 years.

Anonymous or pseudonymous work, or


work made for hire: 95 years from
publication or 120 years from creation,
whichever expires first.

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Remedies For Infringement
 Injunction

 Seizure and disposal of


infringing articles

 Monetary recovery
•Actual damages or Statutory damages
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Copyright Expires

When copyright has expired anyone can use the


material without infringing copyright.
Copyright cannot be renewed.

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PATENTS

Protection for Inventors


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What is Patents

A ‘Patent’ gives an inventor exclusive rights to


use their invention for a limited time. These rights
will prevent other parties from copying or selling
the invention without the permission of the
inventor.

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What Invention can be
Patented?

. Products
. Process (functional or technical)
. Software

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A Patent Is A Negative Right
A patent is a government issued deed
which confers upon the patentee(s) (the
inventor who has been granted a
patent) the right to exclude others from
the invention.

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How will I know if my Invention is
New
Inventors can (Optional) file for a process whereby
the patent office searches through existing files to
determine if your invention has already been
patented.
The patent office will also decide whether your
invention is not simply a progression of an existing
product/process on approval, you are free to apply
for a patent.
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Types of Patents

. Utility Patents
. Design Patents
. Plant Patents

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Utility Patent
 Utility Patents: are issued for “. . . any
new and useful process, machine,
manufacture, or composition of
matter, or any new and useful
improvement thereof.”

 Valid for twenty (20) years from the


date of filing or the earliest priority date.

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Types of Patents
 Design Patents: are issued for
novel, non-obvious, ornamental
design in an article of manufacture, in
other words, for its appearance.

 The term of a design patent is


fourteen (14) years from the date of
grant.

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Types of Patents
 Plant Patents: are issued for new
varieties of plants which have been
asexually reproduced.
 The new variety must be novel,
distinct, non-obvious and must have
been asexually reproduced.
 Plants discovered in nature are not
patentable.
 A plant patent has the same length of
term as a utility patent.

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Requirements for Patentability
MUST BE USEFUL

MUST BE NOVEL

MUST BE NONOBVIOUS

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Invention Must Be Useful
“Utility”, is generally self-evident
from a description of the invention

 Utility is usually easy to meet.

 Except in your case.

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Invention Must Be Novel
 The PRIOR ART

 NOVELTY = DIFFERENT

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Invention Must Be Non-Obvious
 Nonobvious to those of ordinary
skill

 Obviousness – degree of novelty

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Anything New Under The Sun

 A new composition of matter


qualifies for a patent, be it inanimate
matter or living matter.

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What Is Not Patentable
 Natural laws
 Mathematical expressions
 Abstract ideas
Anything not USEFUL, NOVEL and
NON-OBVIOUS (perpetual motion
machine)

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Computer Programs
 Computer programs applied to
producing useful results may be
patentable.

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Business Methods

 May be patentable

 If useful, novel,
and non-obvious

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Who Gets The Patent?
 Foreign countries = first to
file

 U.S. = first to invent

 U.S. will likely change

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Public Disclosure
 It is best to file a patent application before
disclosing an invention to the public.

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Don’t Delay in Filing
 Part of the patent law, prohibits issuance of
a patent if "the invention was patented or
described in a printed publication in this or
a foreign country or in public use or on sale
in this country, more than one year prior to
the date of the application for patent in the
United States."

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You Snooze, You Lose
 This year is a critical date

 You will lose all your rights

 Invention goes into public domain

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File Before Disclosing
 The inventor always runs a higher risk
when disclosing the invention before a
patent application is filed.

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What to File?
 Provisional Application

 Regular Utility Application

 International Application

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Provisional Application
– No specific format required
– Must provide enabling disclosure
– Obtain quick filing date (“first to file”)
– Remains in effect for one year
– Must file Utility Application before expiration to
maintain the priority filing date

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Regular Utility Application
 but are not an absolute requirement There is
an accepted format, but at minimum
requires:
– A written description containing an enabling
disclosure; and
– At least one claim.
– One or more drawings may be helpful

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International Application
 Patent Cooperation Treaty (PCT)
 U.S. is signatory member
 Unified examination process
 International search and opinion
 If opinion is favorable, file the PCT
application in jurisdictions of choice

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Patent Pending
 Once a patent application has been filed, the
invention may be marked with the
designation “patent pending” as a means of
notifying the public of a claim to legal
ownership by the inventor.

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Patent Pending Protection?
 NO PROTECTION FROM COPYING

 Right to exclude others = Patent

 Patent pending = notice that a patent


application has been filed

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The Patent Applicant
 U.S. application must be filed in the
name(s) of the inventor(s)

 Employer may be the owner

 Assignment acknowledges ownership

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Who Is An Inventor?
 Inventor = material contribution

 All inventors must be named

 Not like authorship in a paper

 Inventorship confers legal rights


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Collaborative Work
 Co-Investigators from two
Universities

 May be co-inventors

 Both Universities will own the


invention
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Questions of Coinventorship?
 Contact the Office of Technology
Transfer

 They will help you sort this out

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So You Filed, Now What?
 Application published at 18 months

 Administrative actions within six months

 First substantive review may take 1-2


years after filing (Office action)

 Overall process (prosecution) will typically


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take up to about 3 years.
What Do we Need To Know?

 Patent Attorney or Patent Agent


•Must be licensed by PTO

 Must pass the “patent bar exam

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Education Requirement

 Patent Agents and Patent Attorneys


are typically engineers or scientists

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We Are The Expert

 We must help the patent attorney


understand our invention.

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The Attorney or Agent’s Job
 Obtaining a patent is only part of it.

 The trick is to obtain the best patent


possible.

 This may be the broadest patent


coverage permitted by law, in view of
the
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prior art. Dept. of Pharmaceutics 73
Is It Patentable?
“Chance favors the prepared
mind.” Louis Pasteur.

Be on the lookout for


NOVELTY.

Leave the rest to Attorney or


Agent’s.
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Difference between Patent,
Copyright and Trademark
Patent allow the creator of certain kinds of
inventions that contain new ideas to keep others
from making commercial use of those ideas
without the creator’s

Trademark on the other hand is not concerned with


how a new technology is used. It applies to the
names, logos and other devices-such as color,
sound and that are use to identify the source of
goods or service and distinguish them from their
competition.
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Difference between Patent,
Copyright and Trademark

Copyright applies to expressive works such as


novels, fine and graphic arts, music, records,
photography, software, video, cinema and
choreography. It’s possible to get a patent on
technologies used in the arts, but it is copyright
that keeps one artist from stealing another artist’s
creative work.
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Questions?
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