What Is Industrial Property? Distinctive Aspects of Industrial PropertyDistinctive Aspects of Industrial Property –The fact that more than one person can possess or use the same intangible subject matter, without depriving any other possessor of similar use or enjoyment, makes Industrial property an inexhaustible resource, or in economic terms, a free good –Industrial property protection provides fuel for the engine of innovation Emergence of Industrial Property as a Single Field of Law –Until the 1970s, practitioners of what later came to be known as IP law, labored in their separate fields, unconscious of each others work –Recent development in IP law have begun to knit this patchwork of separate legal regimes into a single- coherent fabric

Subfields of Industrial Property PVRs GI

Comparing the Forms of Industrial Property Each area of IP law has its own set of complex rules and statutesEach area of IP law has its own set of complex rules and statutes As a result, Industrial property law is a complex mélange of legal detail that can take the better part of a lifetime to master fullyAs a result, Industrial property law is a complex mélange of legal detail that can take the better part of a lifetime to master fully

Protected Subject Matter Patents - products, processes, compositions of matter and improvements thereof Trade secrets- Very broad: virtually any information or expression, whether or not recorded, qualifies for trade secret protection if its limited availability gives it economic value and is reasonably guarded (includes a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique, or process Semiconductor Chip Protection- The intangible information content in a three-dimensional blueprint for a semiconductor chip, i.e. a mask work Trademarks - verbal symbols, designs, distinctive features of products, sounds, and even fragrances, also trade dress, i.e. the design, packaging, and manner of sale of products and services Copyrights - original works of authorship fixed in any tangible medium of expression (however, not ideas, principles, themes, or facts)

Exploiting the Overlap The five areas of Industrial property protection mentioned above overlap The five areas of Industrial property protection mentioned above overlap Although several distinct types of Industrial property protection may protect a single product or service, there is usually a center of gravity Although several distinct types of Industrial property protection may protect a single product or service, there is usually a center of gravity A positive synergy can be achieved by combining different types of Industrial property protection A positive synergy can be achieved by combining different types of Industrial property protection Using various forms of protection may be helpful in that if one form is invalidated or expires, another may act as a fall-back form of protectionUsing various forms of protection may be helpful in that if one form is invalidated or expires, another may act as a fall-back form of protection Practitioners should avoid narrow specialization Practitioners should avoid narrow specialization

Strength of Protection * Patents: strongest protection of the various formsstrongest protection of the various forms - right to exclude all others from: making, using, and selling (and for processes, importing, using, or selling products of that process)- right to exclude all others from: making, using, and selling (and for processes, importing, using, or selling products of that process)

Strength of Protection * Copyrights - exclusive right to reproduce, distribute, publish, display, perform publicly, and to prepare derivative works

Strength of Protection * Semiconductor Chip Protection exclusive right to reproduce the mask work (in chips or otherwise), and to import and distribute semiconductor chips embodying the mask work (in products or otherwise)

Strength of Protection * Trade Secrets - right to prohibit acquisition of the protected secret by improper means, such as industrial espionage, breach of confidence, bribery or subversion of employees, or breach of contract

Strength of Protection * Trademarks - the right to prevent uses of similar marks or features which are likely to confuse the relevant public or which dilute the distinctive quality of the mark

Duration of Protection Duration from shortest to longest (1) mask work = 10 years if its owner timely applies for registration; otherwise, for 2 years (2) utility and plant patents = 20 years from filing (3) design patents = 14 years from issue (4) copyrights = life of the authors plus 50 years after the death of the last surviving author (5) trademark = as long as the mark is used in commerce (although federal registration must be renewed every 10 years) (6) trade secret = as long as the secret is not in the public domain, has competitive value by virtue of its limited availability, and is guarded with reasonable effort

Requirements for Protection *Patents - to qualify for a utility patent an invention must be: (1) novel; (2) useful*; and (3) industrial appilicability/nonobvious, at the time it was made, to those of ordinary skill in the relevant art: *for design patents the utility requirement is replaced with a requirement that the design be ornamental *for design patents the utility requirement is replaced with a requirement that the design be ornamental *for plant patents the utility requirement is replaced with a requirement that the plant be a distinct new variety that is capable of being asexually reproduced *for plant patents the utility requirement is replaced with a requirement that the plant be a distinct new variety that is capable of being asexually reproduced

Requirements for Protection * Copyrights - to qualify for legal protection a recorded expression need only be: (1) original; and (2) fixed in a tangible medium of expression - in other words, original expression is protected automatically from the moment it is first fixed in a tangible medium - copyright is the best bargain in all Industrialproperty law

Requirements for Protection *Semiconductor Chip Protection - to qualify for legal protection a mask work must: (1) be original; and (2) fixed in a semiconductor chip product (3) registered within two years of its first commercial exploitation

Requirements for Protection *Trade Secrets - to qualify for legal protection a secret must: (1) not be known or readily ascertainable by all of those who could profit from it; (2) have economic value by virtue of its limited availability; and (3) its owner must have taken reasonable effort to guard the secret and to protect it form unauthorized use or disclosure

Requirements for Protection *Trademarks and Related Property -to qualify for legal protection a mark, trade dress, or other symbol must be: (1) distinctive; (2) nonfunctional; and (3) used in commerce

Requirements for Protection * Trademarks and Related Property - in determining if a mark is distinctive, a court generally places it into one of four categories: (1) generic (no legal protection) (2) descriptive (may be protected upon showing of secondary meaning) (3) suggestive (protectible even without showing secondary meaning) (4) arbitrary or fanciful (protectible even without showing secondary meaning) the above categories, or distinctiveness spectrum, was developed for verbal marks and may not apply in the same way to designs and trade dress (e.g. some courts require a demonstration of secondary meaning for all nonverbal marks; others require nonverbal marks to be inherently distinctive) the above categories, or distinctiveness spectrum, was developed for verbal marks and may not apply in the same way to designs and trade dress (e.g. some courts require a demonstration of secondary meaning for all nonverbal marks; others require nonverbal marks to be inherently distinctive)

Contemplation Is it possible that IPRs: (1)do have a great impact on research by disseminating info on advances in technology (2)do promote the innovation process (3)do encourage high risk investments which lead to industrialization (4)do facilitate licensing and technology transfer (5)do have a significant influence on economic progress. & will provide the greatest incentive for Research and development with the aim to achieve useful innovations, and productive investments.

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