Intellectual Property Essay

1) Compare and contrast the differing protection offered by the law of patents and the law of copyright. In your opinion, are these differences accidental or do they have a sound commercial or legal basis ? Intellectual property rights are exclusive rights for their owners. Third parties are then generally prohibited from the use or exploitation of what is excluded by these rights. It is to be clarified that it is intended to focus solely on copyrights and patents. Trademark, confidentiality and designs, the other main types of intellectual property are beyond the scope of this essay. There is one simple way to comprehend the two concepts of patents and copyrights. On the one hand patent are rights over an invention. An invention is the result of reasoning. It is the production of some new or improved process or products that are both not obvious for a person skilled in the field and useful. On the other hand, copyrights are rights that protect art in general, art being any products of human's creative activities provided that more than trivial work has been done. The patent law can be seen as a monopoly created by parliament. In the year 1623 the Statute of Monopolies declared that all monopolies are void and of no effect. But an exception was made for the future grand of patent for the term of fourteen years to the first inventor provided it was not contrary to reason of raising price or restrictive of trade. Nowadays, it is basically the same principles that are applied. The copyright law can be seen as a way to restraint trade granted by Parliament. In 1709, the Copyright Act gave an author the exclusive right of printing his work for fourteen years. If the law has extended, the same concepts are still applied. The first point is the difference between what is ruled by patent and copyright. Patent law is protecting inventions. Patent Act 1977 defined an invention as something new thus which does not form part of the state of the art (s. 2(1))1. The state of the art being what was made available to the public in any way before the priority date of the patent (s. 2(2))2, this date correspond to the date of filling on which certain formalities are satisfied. The question to be asked in order to know if it was part of the art is not whether an information has actually been accessed but whether information could have been accessed prior the filling date. An old illustration of this would be the case of Lang v Gisborne3. In relation to a book, the question was whether the information was available and not whether the book had actually been sold. Thus we need to define what is construed as available to the public. In the Windsurfer4 case, a 12 year old boy, who built a sailboard and used it in public during his holidays, had been enough to make this invention available to the public. Moreover, in assessing if a disclosure of information is enough; it will be considered whether the person skilled in the art will be able to carry out trial and experiments to get to the invention (Synthon5). The last main hurdle for the obtention of a patent will be the requirement of inventiveness. An inventive step is one that is not obvious to a person skilled in the art (s. 3)6 and whether there is an inventive step or not has to be decided without hindsight (Haberman v Jackel7). A person 1 Patents Act 1977 s. 2(1) Patents Act 1977 s. 2(2) 3 Lang v Gisborne, 31 LJ. Ch 769 (1862) 4 Windsurfer International v Tabur Marine [1985] RPC 59, CA 5 Synthon v Smithkline Beecham [2005] UKHL 59, [2006] RPC 10 6 Patents Act 1977 s. 7 Haberman v Jackel International Ltd (1999) The times 21 January 1999 2 1 skilled in the art has been described as a graduate or engineer in the field concerned with a few years of experience (Dyson v Hoover8) , it was also held that it should be a â€Å"composite entity†, in other words a team of graduate and engineer (General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd9). Furthermore, an invention needs to be capable of industrial application which is rarely an issue. It will be analysed as such if it can be produced or used in any kind of industry, including agriculture (s. )10. Finally, an invention is patentable if not belonging to one of the excluded matter. A discovery, scientific theory, mathematical method, a scheme, rule or method of performing a mental act and playing a game or doing business are excluded (s. 1(2))11. Some others interesting exclusions exist, such as a literary, dramatic, musical or artistic work or any other aesthetic creation, a program for a computer and the presentation of information. These exclusions are interesting because they form part of what is subject to copyright, so what is protected by copyright. Indeed, copyright subsist in original literary, dramatic, musical or artistic works, sound recordings, films or broadcasting and typographical arrangement of published edition (s. 1)12. As with patent, a copyright need to fulfil certain criteria in order to be granted. There is a requirement of originality that applies to literary, musical, dramatic and artistic works but not to sound recording, films or broadcast. In the case of Univeristy of London Press13, it was established that the work must not be copied from another work but should originate from the author otherwise it will infringe. If the author has spent sufficient degree of skill, labour and judgement to establish originality then his work would be able to be protected by copyright. But often there is no requirement as to that quality. Thus, there is no requirement that a work should actually have literary value (Univeristy of London Press)14, it must be more than de minimis so that single words will not be protected by copyright (Exxon Corp)15. On the same line, there is no requirement of quality or merit of music as long as the sounds are not too simple and trivial. Furthermore, artistic works need not to present any merit (Vermaat and Powell v Boncrest)16. Finally, the protection offered by copyright only protects works that have been expressed in tangible format. In order to have ownership in the copyright, it is important to be able to prove authorship, often by producing the original creation of the work. If the process to get a copyright seems to be a simple and short process the process to obtain a patent is long and complicated. A formal registration is needed, has to be done within the UK Patent Office. One could say that is to allow authors which do not belong to a large company to be protected easily with copyright as soon as they make their original work in a Haberman v Jackel International Ltd [1999] FSR 683 Dyson Appliances v Hoover [1997] RPC 1, CA 9 General Tire & Rubber Co v Firestone Tyre & Rubber Co [1972] RPC 457 10 Patents Act 1977 s. 4 11 Patents Act 1977 s. 1(2) 12 Copyright, Designs and Patents Act 1988 s. 1 13 University of London Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch. 601 14 University of London Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch. 601 15 Exxon Corp v Exxon Insurance Consultants International Ltd [1981] 3 All ER 241 16 Vermaat and Powell v Boncrest Ltd (No. 2) [2002] FSR 21 8 2 angible format. It is why copyright is an accepted theory and seen as a limited monopoly17. Such monopoly is necessary to promote â€Å"the three level of competition in modern business, which are production consumption and innovation’’18. On the contrary patent protects large companies’ invention. It is fair to require more formalities from them to obtain a protection as they are able to call large resources and facilities. Many steps have to be followed but only a brief explanation will be given as it is a complex area. The most important thing is the specification that has to be made (s. 4(2))19. The specification need to be very precise. It shall describe the invention in a clear and completed way so that the invention can be performed by a person skilled in the art (s. 14(3))20. Therefore the specification should explain what has been created, the problems that the invention solves, how the invention differs from what has been created before. It has been explained previously how the patent and copyright cover different subject, so that, for example, music is protected by copyright and the Dyson mechanism of vacuum cleaner is protected by patent. If they cover different area, they also provide protection in rather different manners. In the patent law, there are two main infringements, infringement of a process, infringement of a product by process patents and infringement of a product. There is an infringement by a party when a party use a process and when the party must have known or it must have been obvious in the circumstance that the use of the process would infringe the patent (s. 60(1)(b))21. For product patents, the intention is irrelevant (Procter v. Bennis)22. Only the patentee has the right to dispose of the product, which is interpreted mainly as the right to sell the product (s. 60(1)(a))23. Note that it does not exclude the right to sell the product at a later date, this is the doctrine of exhaustion. In the same way, he is the only one who can import the product. An infringement will be constituted if someone imports a product when in trade. The right to keep the product for disposal or otherwise is also an exclusive right of the patentee. Lastly, the most important is the right to make the product. It has been held, that modifications or repairs of a patented product could be infringement as well (United Wire)24. It is possible to compare the interpretation in United Wire to the owner's rights of a copyright over adaptations of the original work. The copyright owner of a musical, dramatic or literary work is the only one to have the right to make an adaptation of the work (s. 16(1))25. An adaptation will be interpreted as such only if it relates to a substantial part of the copyright work (Sillitoe)26. The rights over the adaptation are the same as the one over the original work. The question is what these rights are over the original work. First, copying the work is an infringement. An exact copy of the work is forbidden. If not completely identical, a two part test has been established (Francis Day and Hunter)27. Firstly a degree of similarity is required between the two works. A substantial part must have been copied, in order to establish it, a qualitative test and not a quantitative test has to be applied (Ladborke v William 17 The institutionalist theory of law, Neil MacCormick. Copyright law, Monopoly or Monstrosity, by Alan Beckley. (Butterworth and Co 1996) 19 Patents Act 1977 s. 4(2) 20 Patents Act 1977 s. 14(3) 21 Patents Act 1977 s. 60(1)(b) 22 Procter v. Bennis et al. (1887), 4 R. P. C. 333 23 Patents Act 1977 s. 60(1)(a) 24 United Wire v Screen Repair Services (Scotland) [2000] 4 All ER 353, HL 25 Copyright, Designs and Patents Act 1988 s. 16(1) 26 Sillitoe v McGraw Hill Book Co. (UK) Ltd. [1983] FSR 545 27 Francis Day & Hunter Ltd v Bron [1963] Ch 587 (UK CofA) RR 207 18 3 Hill)28. Secondly, the infringing work must have some casual connection with the original work, which means that the infringing work must have some origin in the plaintiff's work. There are other main forbidden acts, such as issuing copies of the work to the public, performing, showing or playing the work in public, to broadcast the work or include it in a cable program service. It is also forbidden to authorise another to do a restricted act (s16(2))29. As seen previously, there is a wide protection for owners of copyright and patent, but in order to achieve a balance between owners and the public, some defence have been created in both patent and copyright law. In copyright law, there is a defence of fair dealing which allows research and private study only if is not undertaken for commercial purposes (s. 78)30 and only if it is for the person's own use (Sillitoe)31. Moreover, multiple copies will infringe, thus only singles copies are allowed (s29(3))32. The defence of fair dealing allows criticism or review provided sufficient acknowledgment is present which is obtained by identifying the work by its title or any description and by identifying the author o f the original work. Similar defence exists in patent law and provide protection for acts done in private and for non commercial purposes (s. 60(5)(a))33. There is also a defence for acts done in an experimental way and which relate to the matter of the invention (s. 60(5)(b))34. One of the main differences between patent and copyright is the length of protection they offer. A patent is granted for 20 years from the filing date. In literary, dramatic, musical and artistic works copyright protect the work during the author's life plus 70 years from the date the author dies. Why a difference in length between copyright and patent? As said previously, an author is protected by copyright all is lifetime because he is considered to be a weaker party. The 20 years protection offered with patent has been justified because of the time needed in testing of pharmaceutical and similar products for health and safety reason. In the point of view of a customer and the public copyright could be seen as a restriction on trade and patent as a monopoly for 20 years. It is common legal principle to say that restriction and monopoly are only justified to the extent that they are necessary to the public benefit. Lord Sydney Templeman said â€Å"patent and copyright are necessary to ensure that an inventor continues to invent and that an author continue to publish†35. 8 Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W. L. R. 273 Copyright, Designs and Patents Act 1988 s. 16(2) 30 Copyright, Designs and Patents Act 1988 s. 178 31 Sillitoe v McGraw Hill Book Co. (UK) Ltd. [1983] FSR 545 32 Copyright, Designs and Patents Act 1988 s. 29(3) 33 Copyright, Designs and Patents Act 1988 s. 60(5)(a) 34 Copyright, Designs and Paten ts Act 1988 s. 60(5)(b) 35 Lord Sydney Templeman, Abstract Prior to his appointment to the UK House of Lords as a Law Lord. Oxford University Press 1998 29 4 Case List Dyson Appliances v Hoover [1997] RPC 1, CA Exxon Corp v Exxon Insurance Consultants International Ltd [1981] 3 All ER 241 Francis Day & Hunter Ltd v Bron [1963] Ch 587 (UK CofA) RR 207 General Tire & Rubber Co v Firestone Tyre & Rubber Co [1972] RPC 457 Haberman v Jackel International Ltd (1999) The times 21 January 1999 Haberman v Jackel International Ltd [1999] FSR 683 Lang v Gisborne, 31 LJ. Ch 769 (1862) Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W. L. R. 273 Sillitoe v McGraw Hill Book Co. (UK) Ltd. 1983] FSR 545 Synthon v Smithkline Beecham [2005] UKHL 59, [2006] RPC 10 United Wire v Screen Repair Services (Scotland) [2000] 4 All ER 353, HL University of London Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch. 601 Vermaat and Powell v Boncrest Ltd (No. 2) [2002] FSR 21 Windsurfer International v Tabur Marine [1985] RPC 59, CA Bibliography Holyoak & Torremans, Intellectual Property Law (5th ed. 2008) Oxford Colston & Galloway, Modern Intell ectual Property Law (3rd ed. 2010) Routledge Bainbridge, Intellectual Property (8th ed. 2010) Pearson Lexis Nexis Westlaw 5

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