Professional Documents
Culture Documents
-IIPS
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Why
IP? What is IP and IPR? Rational behind IPR protection Different types of IP
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All kinds of great ideas: man survived & progressed First hand axe 2.5 million years ago Needles 70,000 years ago led to invention of clothes Writing words and languages
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Consumer World - market place dominated by needs & wants Needs & wants met by products (discoveries, ideas or inventions) Sellers woo buyers , buyers demand products The seller seeks rewards social & monetary & the buyer seeks product satisfaction
need
to
ideate,
improvise
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What is an idea? Ingenious intellectual activity Labor of mind Different from manual and physical labor Original, inspired, influenced or even pirated Born out of imagination & knowledge
Imagination breeds creativity and creativity breeds GAINFUL COMMERCIAL ACTIVITY---resulting in Generation of wealth!
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The concept of ownership is critical to the concept of property. In the legal sense, property refers to the bundle of rights that the law confers on a person by virtue of the ownership and possession of an object. By exertion of his intellect, either in the form of ideas or technology, man converts a natural resource into something of utility, making it an item of property. This brings us to the concept of intellectual property. It is simply the property created by the application of human mind.
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Rights CHANGE according to the situation it finds itself in. Sometimes it is being ENTITLED to something from someonean IMMUNITY from having a legal status altereda PRIVILEGE to do somethinga POWER to create a legal relationship. Each invokes a different protection!
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Law
Right =consequences of the ownership
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Property =ownership
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A point to appreciate here is that IP is concerned with mans capacity to produce something new and offer it for public use. The property does not lie in the thing so produced and offered but in the owners rights over the creation of his intellect.
Again, what IP protects is the use or value of ideas and not the abstract ideas themselves; there are no rights, hence no property, over the ideas per se.
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Tools of IPR
Oldest way to avoid competition Invention Association
Specific location
Expression
Appearance
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Natural rights
TRADEMARKS
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Distinctive symbols, signs, logos that help consumer to distinguish between competing goods or services.
Visual: Words, letters, numerals, devices including drawings and symbols or 2-D representations of object or a combination of two or more of these, colour combinations or colour per se, 3-D sign as shape of goods or packaging. Audio: Sounds, Musical Notes Olfactory: Smells
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A trade name is the name of an enterprise which individualizes the enterprise in consumers mind. Service Marks are marks used in any form of service business where actual goods under that mark are not traded. For instance, a Hotel or a restaurant is a service.
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Well
Known Trade Mark Collective Mark: Proprietor is an association of persons, which is legally not a partnership Certification Mark: Does not indicate origin of goods but certifies the goods as conforming to certain characteristics (quality, ingredients, geographical origin etc.) e.g. ISI, AGMARK, Hallmark etc.
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Distinctive
(basic function): - inherent (e.g.RIN), or - acquired by usage (e.g. TATA) Non-deceptive ( to avoid misleading) Not contrary to public order, morality
Special Requirementsor specified classes of goods or services.
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Right to use TM in relation to goods/ services as registered are protected (If TM consists of several parts, protection is for TM as a whole)
State Emblems, Official Hallmarks, Emblems of Intergovernmental Organizations cannot be used as TM.
Term of protection:10 years [renewable]
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GEOGRAPHICAL INDICATIONS
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GI must identify a good. That means that a GI could be any expression -not necessarily the name of the place where the product originated (icon, symbols, words/phrases, non-geographical name) The good must necessarily possess the given quality/reputation/other features that are essentially attributed to the designated geographical area of origin.
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Increases variety and diversity. Allows producers to obtain market recognition and often a premium price. Key source of niche marketing. Also often associated with non-monetary benefits such as the
Having the exclusive right to use a geographical indication is essential for quality assurance and thus consumer protection.
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INDUSTRIAL DESIGN
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Virgin Trains
Swatch watches
'Analog Pad' by Oriol Mogas Bartomeu Manor Born - packaging and branding redesign
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Duracell flashlight
Refers to a products overall/finished form Refers only to the ornamental or aesthetic aspects of a product-impression on sight
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ORIGINAL/New- not previously seen or published NOVELTY- must be substantial- a known design can be applied to a new article- shape of teddy bear for a school bag Test of novelty is in the eye of the arbiterdetermination rests on the general impression A combination of known designs can be registered if the combination produces a new visual appeal
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Protection period ranges from 10 to 25 years- includes in some countries grace period for registration
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Piracy of Designs
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Should be distinctive
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TRADE
Provides
SECRET
Kept confidential
competitive advantage
Potential to make money
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Financial information
Commercial information
Negative information
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Hardware design Software Technical data about product performance Pending patent applications Business plans & strategies New product names Financial projections Marketing plans, unpublished promotional material Cost & pricing information Sales data Customer lists Info re: new business opportunities Personnel performance
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1.The information must be secret 2. It must have commercial value because its secret 3.Owner must have taken reasonable steps to keep it secret
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Identify the trade secret Develop a protection policy Restrict access Mark the documents Physically isolate and protect Restrict public access Maintain computer secrecy Measures for employees and third parties
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Contract law
Criminal laws
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Trade Secrets
no registration
- less costs (but: costs to keep secret) - immediately available
Patents
registration
- fees (registration + maintenance) - takes time to get patent
limited in time
- generally: max 20y - but: can be invalided
no public disclosure
- but: practical need to disclose - if leak out: TS lost
public disclosure
- publication 18m after filing - if P not allowed: no TS
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Trade Secrets
Large subject matter
Protection of virtually anything maintained in secret by a business that gives competitive advantage
Patents
Subject matter limited:
- Requirements: new, non obvious, useful - Scope: patent claim
Exclusive rights
monopoly to exploit the invention
"Power tool"
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Copyright
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Publishers, Editors, Translators, Producers, Actors, Directors, Music composers, Software developers
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Magical
tale of transformation of creativity & IP One Idea- story- book films/TV- products- brand Evident economics of Copyright & other related IPs Multiple industries & livelihood for hundreds Free riders profiting from creative output of others Works of art & expression need to be protected
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Writing books, articles, novels Sound recordings Motion dance 3 dimensions cinema Visually painting Software algorithms
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Literally
right to copy Copyright derived from the expression copier of words first used in the context in 1586 in Oxford dictionary Copyright essentially is an author s, composers etc right to copy his own work to protect the expression of the work created. It is the right to authorize the reproduction of the work(making copies) & distribution of the same So copyright is the right to copy or REPRODUCE the work in which copyright subsist
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Creative of Statute
Automatic protection - The moment someone creates the book, a piece of music, computer prog. painting etc it is copyrighted - Almost everything created privately & originally is copyrighted Negative in nature - Prohibits to prevent others from reproducing the work or exploiting it for their own purpose Monopoly rights - For a specified period
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Reproductive Rights - right of copying, printing, distributing Adaptive Rights - make modified version Distributive rights - distribute copies - selling Performance Rights - perform publicly, broadcast Display Rights - the films, complete programme Attribution Rights - claim authorship of the work & preventive measures Economic Rights to exercise, sell, give online, etc. Moral Rights understood to be - Authors rights to publish or not
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Writer/writers of the book; Painter; Music composer; Translator; Cinematographer; Photographer etc.
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For books and other works of arts it is 60 years after the death of the author (the laws of different countries vary); For photographic work 60 years from making the work; For cinematic works 60 years after making the work available to public.
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Stealing
information or original work is theft Plagiarism is the act of copying a work wholly or partially and pretending to be its original author When there is a violation of ones exclusive right to his property we call it infringement Infringement takes place when one knowingly copies/reproduces the creative work of another without permission (S. 63) Infringement is an offence under all laws of copyright
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Quotations for commentary; Illustration for Teaching; Current News Reporting etc. Free Use is decided by amount of work used and its economic implications to the right holder. The mention of original author/source is must.
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Fair
use is a doctrine developed by courts in the US Allows certain types of copying without permission for the promotion of creativity, research, science & useful arts Advantageous for libraries & archives Judicial proceedings, works of legislatures, course of instructions & examinations including use of copyrighted material in religions & official ceremonies & marriage proceedings are protected Thus a film critic can include a clip from a film in her review to make her point Fair use is a legal exercise that permits one to take quotes from others protected works without violating the law
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The
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It is the grant of
an exclusive right, for limited period, provided by the Government to the patentee, in exchange of full disclosure of his inventions, for excluding others, from
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* Patent
* House
Intellectual property is an asset and can be bought, sold, licensed, exchanged, donated
The holder of the intellectual property has right to prevent any unauthorized use or sell
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Encourages RESEARCH. Induces an inventor to disclose his inventions instead of keeping them as secret. Provides inducement for capital investment encouraging technological development. It encourages establishment of new industries.
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Law of Patents
Enforcement part
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By the government To the inventor or his assignee For an invention For a limited period It is valid within the country of grant
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patent is valid if
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Atomic energy Traditional knowledge Scientific principle Abstract theory Discovery of natural substances New form of a known substance Mixture of known compounds Methods of agriculture
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Perpetual motion machine Mathematical or business method or algorithms or computer program per se
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Presentation of information
Mental activity
Hazardous to living being or environment Mere admixture, Diagnostic and Therapeutic processes, Biological processes, Traditional knowledge
Related to
Atomic
Energy purpose
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Defence
S. 2(1)(j)):
An invention means a new product or process
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OLD
NEW
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The good monopoly is one which serves to give the public through its incentive, something which it has not had before and would not be likely to get without the incentive at least not so soon. The bad monopoly is one which takes from the public that which it already has or could readily have without the added incentive of the patent right. Judge Rich
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1.
An invention shall be considered to be new If it does not form part of the state of the art
[The highest level of development, as of a device, technique, or scientific field, achieved at a particular time: "Forty or fifty years ago the state of the art in radio was represented by crackling noises coming from a console of . . . Aztec-temple shape" (New Yorker).]
1.
The state of the art shall be held to compromise everything made available to the public by means of written or oral description, by use, or in any other way, before the priority date
2.
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A patent for the mere use of a known contrivance, without any additional ingenuity in overcoming fresh difficulties, is bad and cannot be supported. If the new use involves no ingenuity but is in manner and purpose analogous to the old use, although not quite the same, there is no invention. On the other hand a patent for a new use of known contrivance is good and can be supported if the new use involves practical difficulties which the patentee has been first to see and overcome by some ingenuity of his own.
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S.2(1)(ja):
Inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.
Inventive step refers to the ingenuity in making the leap from the closest prior art which was not obvious to the person skilled in the art.
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S.(2)(1)(ac):
capable of industrial application, in relation to an invention, means that the invention is capable of being made or used in an industry.
It implies utility Includes manner of manufacture, which contains both process of manufacture and product resulting from such manufacture \
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CONCERNS
ONLY WITH HIGH TECH GLOBAL VALIDITY GLOBAL ENFORCEMENT RIGHTS PERPETUAL CANNOT BE CHALLENGED
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BROADCASTING DISADVANTAGES SECRET WORKING DISADVANTAGES OPEN WORKING DISADAVNATGES PATENTING ADVANTAGES
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Title Technical Filed (Title and preamble) Background and Description of the Art Problem solution Object of the invention Detailed Description of Invention Examples Claims Drawings Abstract Normally a patent is in force for 20 years from the date of the application
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PRE-GRANT OPPOSITION
Request for examination
POST-GRANT OPPOSITION
PROTECTION STRATEGY
FILING NATIONAL APPLICATION FILING OUTSIDE THE COUNTRY CRITERIA : SAME APPROACH TO BE ADOPTED MARKET ORIENTED LICENSE ORIENTED MANUFACTURE ORIENTED R & D ORIENTED COST ORIENTED PUBLICITY ORIENTED
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USPTO 5,356,330: Apparatus for simulating a high-five shared between fans to express the joy and excitement Unfortunately requires mutual hand slapping of two participants a solitary fan is unable toexpress excitement
US Patent 5,197,216 Combined camouflage and decoy device In order to fool the birds, the inventor suggests the hunter move his head from side to side and flap his cape a little to simulate a happy goose.
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