1. The proprietary world: the WIPO model of intellectual property
IPNM 2007
Kaido Kikkas
This document uses the GNU Free Documentation License (v1.2 or newer).

2. Two traditions Continental European <= Roman Law
Anglo-American <= Statute of Anne a.o.
Estonia – mostly Continental

3. Public vs private
Public law - governs the relationship between individuals (citizens, companies) and the state. Examples: constitutional, criminal and administrative law
Private law - involves relationships between individuals. Examples: business law, family law
IP is considered a private law

4. Horizontal vs vertical
Coordination - 'horizontal' legal relationship (between equal peers); typically in private law
Subordination - 'vertical' legal relationship (between the master and the servant); typically in public law
Not absolute distinction – may mix up

5. WIPO Established in Stockholm 1967 Two goals:
on one hand, to provide fair compensation for creators
on the other hand, to allow the society to use the creation
defines intellectual property as any result of human intellectual activity (ideas, inventions, scientific theories, works of art etc)

6. IP Shares many qualities with physical property:
can be rented, sold and bought
can be given away or stolen
Specific features:
immaterial
territorial
temporary

7. Main categories Copyright (+ related/neighbouring rights)
Industrial property
patent (+ utility model rights)
trademark
trade secret
industrial design
Competition laws

8. Copyright vs industrial property
The Object
art, literature and science vs industry
The Owner
author vs applicant
application system vs author system
The Rights
automatic vs set procedure
The Duration
eternal/life+70 vs shorter durations

9. Durations in industrial property
Patent - 20 years after the date of application submission
Utility model: 4 years initially, further protection for 4+2 years is possible upon application
Trademarks: 10 years initially, further 10-year periods can be applied for
Industrial design: 5 years initially, further 5- year periods can be applied for, up to the total of 25 years

10. Patent
Latin 'patens' = public; main idea: publish and compensate instead of keeping secret
mostly used for inventions: "a new way to create something old, or vice versa"
Patenting criteria:
novelty - differs enough from the existing things
grade of invention - must be nontrivial
usability - can be produced/used in larger scale

11. Patentable or not Can be: devices methods
substances (including biological)
the combinations of the previous
Cannot be:
design solutions
animal breeds
scientific discoveries
algorithms and computer programs

12. Remarks
Can generally be transferred (with or without consideration), licensed (or rented), or mortgaged to third parties
In case a patent is not used by the owner, any interested party can apply for a forced license in a court of law

13. Trademark verbal mark - intelligible, easy to remember
visual mark (image) - the oldest form, logos
combined mark - the combination (IBM, HP)
spatial mark – 3D-marks (the Michelin Man)
sound mark - callsigns (radio)
moving mark - text or image changes in time
scent mark - must be clearly distinguished
Last 3 cannot be protected in Estonia!

14. Trade secret A piece of confidential information that
is not generally known to the relevant portion of the public
confers some sort of economic benefit on its holder (where this benefit must derive specifically from its not being generally known, not just from the value of the information itself)
is the subject of reasonable efforts to maintain its secrecy
Works like a mouse trap

15. Trade secret protection
Only protected until:
released by the owner
discovered independently
discovered by reverse engineering or similar process
discovered in an illegal way => one-time prosecution!

16. Industrial design Covers the outer design of objects. Must be new
have distinct features
be producible in industry settings (otherwise the object will be regarded as a work of art and protected by copyright)
Cannot be used when the form of the object is technically derived from its intended use (e.g. the shape of a rocket)!
Used for e.g. the shape, material or colour of a keyboard (e.g. MS Natural Keyboard)

17. Competition law
Considered a part of IP law since Outlaws unfair and questionable practices:
unfair, misleading, derogatory or hidden advertisement
illegal use of trademark, business name or other features of competitors
derogation of a competitor or his/her product
abuse of trade secret
setting illegal limits on sales of competitors' goods (e.g. calling for a boycott)

18. Final words Licensing will be covered separately
The critical view will also come later, as well as alternative models...