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© Frank Bott and Aberystwyth University 1 Patents (Patents Act 1977) give an inventor the exclusive right to use or exploit his invention (or sell it) for up to 20 years. To be patentable, the invention must: –be new; –involve an 'inventive' step; –be capable of industrial application; –not be specifically excluded. All patents are published and are publicly available. 28-Feb-13
© Frank Bott and Aberystwyth University 2 Inventions specifically excluded scientific theories; mathematical methods; literary, dramatic, musical, or artistic works; presentation of information; schemes, rules, or methods for performing a mental act, playing a game or doing business, or a program for a computer. 28-Feb-13
© Frank Bott and Aberystwyth University 3 European Patent Law The European Patent Convention was agreed in 1973 and came into force in 1977. The Patent Act 1977 implemented the Convention in the UK. All countries in the EU, plus Iceland, Switzerland, Norway. No agreement yet on a single European patent. 28-Feb-13
© Frank Bott and Aberystwyth University 4 European Patent Law (cont) 28-Feb-13
© Frank Bott and Aberystwyth University 5 International Patent Law The Patent Cooperation Treaty was signed in 1970. Most (111 at present) countries are signatories. Administered by the World Intellectual Property Organisation (WIPO), a United Nations agency in Geneva. A single application to WIPO establishes a worldwide priority date. 28-Feb-13
© Frank Bott and Aberystwyth University 6 Who can get a patent? Patents are only granted to inventors or subsequent assignees. Employees are treated as inventors unless the invention is made in the course of their normal duties, in which case the employer is treated as inventor. (Special rules for senior management.) 28-Feb-13
© Frank Bott and Aberystwyth University 7 Getting a patent (1) It is essential to establish priority when applying for a patent. You therefore need to apply early, even of the invention is not yet perfect. Usually desirable to get patents in all major markets. 28-Feb-13
© Frank Bott and Aberystwyth University 8 Getting a patent (2) File a preliminary application with the UK Intellectual Property Office. Specify that you want to follow the European route. but file international applications within one year. You can file an international patent application with the World Intellectual Property Organisation. 28-Feb-13
Software patents (Europe) The European Patent Convention states that software is not patentable. The European Patent Office has been granting patents to software since the late 1980s. On the few occasions that these have come before the courts they have usually been declared invalid. Owners of software patents are reluctant to try to enforce them in courts in Europe for fear they will be declared invalid. © Frank Bott and Aberystwyth University 928-Feb-13
European Patent Convention meetings in 2000 and 2002 have failed to settle the issue of software patents. In 2005, the European Parliament rejected an attempt to change the EPC to permit software patents. 28-Feb-13© Frank Bott and Aberystwyth University 10
Software patents (USA) The Patent Office grants patents freely to software and US courts enforce them in some cases. Particular problems are caused by patents on compression techniques, audio and video processing, and cryptography. US courts have thrown out many attempts to enforce software patents that obviously should not have been granted but they have enforced some more sensible ones. © Frank Bott and Aberystwyth University 1128-Feb-13
© Frank Bott and Aberystwyth University 12 Software patents: web pages (1) The following site has a good general discussion, written by someone who is legally and technically knowledgeable: http://www.iusmentis.com/patents/software/epc/ It also has a link to a good discussion of the inventive step in the software context at http://www.iusmentis.com/patents/obviousness/ The following site gives a good description of the convoluted processes that have led to the present situation: http://swpat.ffii.org/analysis/epc52/index.en.html 28-Feb-13
Software patents: web pages (2) The following page contains the judgement handed down in July 2005 in a case where a company appealed against the Patent Office’s refusal to grant a patent to a method for managing on-line betting that was something between software and a business method. http://www.bailii.org/ew/cases/EWHC/Patents/2005/1589.html 28-Feb-13© Frank Bott and Aberystwyth University 13
© Frank Bott and Aberystwyth University 14 Confidential information Information cannot be ‘stolen’. You can prevent information being disclosed or used, provided an obligation of confidence exists. An obligation of confidence comes into existence either through a contract (contract of employment or any other sort of contract) or through equity (fairness or the common law). In some cases, the public interest can override the obligation of confidentiality. 28-Feb-13
© Frank Bott and Aberystwyth University 15 Obligations of confidence are used: to prevent sales staff taking sales leads with them when they leave (contract of employment); between companies that wish to collaborate (through a non-disclosure agreement); to prevent employees who leave from taking technical secrets to other companies (contract of employment); to prevent technical information being used by competitors (through licence agreements). In some cases the obligation of confidence would be unenforceable because the information is already in the public domain. 28-Feb-13
© Frank Bott and Aberystwyth University 16 Trade mark protection includes trade marks (logos, etc), trade names (Coca Cola) and distinctive ‘get-up’ (e.g. the costume of Singapore Airlines hostesses). There are international agreements, to which most countries subscribe and which oblige them to enact domestic laws that fulfil the requirements of the agreements. A trade mark must be registered in each country in which protection is desired. 28-Feb-13
© Frank Bott and Aberystwyth University 17 Trade marks (cont) A trade mark only protects goods in the category for which it is registered. Trade marks can be protected either under the Trade Marks Act 1994 or, at common law, under the tort of passing off. Not everything can be registered as a trade mark but the rules vary from country to country. 'Ada' and 'Digital' have both been refused registration in the UK. 'Java' would be refused if anyone tried. 28-Feb-13
© Frank Bott and Aberystwyth University 18 Trade mark protection against software piracy The 1994 Act makes it criminal offence to use an unauthorised trad emark commercially, so it is an offence to put someone else’s trade mark on software you are selling, unless you have their permission; it is an offence for someone else to put your trade mark on software they are selling. Putting a trade mark on software is usually done by displaying it when the software is loaded. 28-Feb-13
Domain names (1) originally meant as a simple way of connecting over the Internet but now regarded as a marketing tool; assigned by ICANN (the Internet Corporation for Assigned Names and Numbers ; can conflict with trademarks because trademarks are not global and not unique; 28-Feb-13© Frank Bott and Aberystwyth University 19
Domain names (2) “cyber squatting”; ICANN dispute resolution procedure. 28-Feb-13© Frank Bott and Aberystwyth University 20
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