Industrial property

Most laws dealing with the protection of inventions do not actually define what an invention is. A number of countries, however, define inventions as new solutions to technical problems. The problem may be old or new, but the solution, in order to be considered an invention, must be a new one. Merely discovering something that already exists in nature will not generally qualify as an invention; an adequate amount of human ingenuity, creativity and inventiveness must be involved. But an invention need not be technically complex: the safety pin was an invention that solved a “technical” problem.[3]

By granting an exclusive right, patents provide incentives, offering inventors recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which in turn contributes to continued enhancement of the quality of life. In return for the exclusive right, the inventor must adequately disclose the patented invention to the public, so that others have access to the new knowledge, leading to further innovation. The disclosure of the invention is thus an essential consideration in any patent granting procedure. The word “patent”, or “letters patent”, also denotes the document issued by the relevant government authority. In order to obtain a patent for an invention, the inventor, or often the inventor's employer, submits an application to the national or regional patent office concerned. In the application, the applicant must describe the invention in detail and compare it with previous existing technologies in the same field in order to demonstrate that it is new.[3]

Not all inventions are patentable. Patent laws generally require that an invention fulfill the following conditions, known as the requirements or conditions of patentability:[3]

• Patentable subject matter: The invention must fall within the scope of patentable subject matter as defined by national law. This varies from one country to another. Many countries exclude from patentability such subject matter as scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, methods for medical treatment (as opposed to medical products), and any invention where prevention of commercial exploitation is necessary to protect public order, morality or public health.[3]
• Industrial applicability (utility): The invention must be of practical use, or capable of some kind of industrial application.[3]
• Novelty: The invention must show some new characteristic that is not known in the body of existing knowledge (referred to as prior art) in its technical field.[3]
• Inventive step (non-obviousness): The invention must show an inventive step that could not be deduced by a person with average knowledge of the technical field.[3]
• Disclosure of the invention: The invention must be disclosed in a clear and complete manner in the patent application to be carried out by a person skilled in the art (a person conversant in the field of technology concerned).[3]

The conditions of novelty and inventive step must be fulfilled by a certain date, generally the date on which the application is filed. An exception to this rule, covered by an applicant's right of priority, is regulated by the Paris Convention. The right of priority means that, having filed an application in one member country of the Paris Convention, the same applicant (or their successor in title) may, within a specified time period, apply for protection for the same invention in any of the other member countries. These subsequent applications will not be invalidated by reason of any acts occurred between the filing date of the earliest application and the subsequent applications.[3]

For example, if an inventor first files an application for patent protection in Japan, and later a second application, with respect to the same invention, in France, it is sufficient that the conditions of novelty and non-obviousness existed at the date on which the Japanese application was filed. In other words, the later, French application retains priority over any applications relating to the same invention filed by other applicants between the date of the inventor's first and second application. This is subject to the period between the two dates not exceeding 12 months.[3]

It is customary to distinguish between inventions that consist of products and inventions that consist of processes. The creation of a new alloy is an example of a product invention. The invention of a new method or process of making a known or new alloy is a process invention. The corresponding patents are usually referred to respectively as a product patent and a process patent.[3]

The person to whom a patent is granted is known as the patentee, the owner of the patent or the patent holder. Once a patent has been granted with respect to a particular country, anyone who wishes to exploit the invention commercially in that country must obtain the patentee's authorization. In principle, anyone who exploits a patented invention without the patentee's authorization commits an illegal act. Protection is granted for a limited period, generally 20 years. Once a patent expires, the protection ends, and the invention enters the public domain (also known as being “off patent”). The patentee no longer holds exclusive rights to the invention, which then becomes available for commercial exploitation by others.[3]

The rights conferred by a patent are described in the patent law of the country in which the patent is granted. The patent owner's exclusive rights generally consist of the following:

• in the case of a product patent, the right to prevent third parties from making, using, offering for sale or selling the product, or importing it for these purposes, without the owner's consent; and
• in the case of a process patent, the right to prevent third parties from using the process without the owner's consent; and to prevent third parties from using, offering for sale or selling the products obtained directly by that process, or importing them for these purposes, without the owner's consent.[3]

The patentee is not given a statutory right to exploit the invention, but rather a statutory right to prevent others from commercially exploiting it. Patentees may give permission, or grant a license, to other parties to use their inventions on mutually agreed terms. They may also sell their patent rights to someone else, who then becomes the new patent owner. There are certain exceptions to the principle that a patented invention cannot legally be exploited without the authorization of the patent owner. These exceptions take into account the balance between the legitimate interests of the patent holder and those of competitors, consumers and others. For example, many patent laws allow a patented invention to be exploited without the patentee's authorization: private acts for non-commercial purposes; acts for experimental purposes or scientific research; and acts for obtaining regulatory approval for pharmaceuticals. In addition, many laws provide for various situations under which compulsory licenses may be granted and government's use of patented inventions without the authorization of the patent owner may be allowed in the wider public interest.[3]

By rewarding creators for their efforts, industrial design protection also serves as an incentive to invest in design activity. One of the basic aims of industrial design protection is to stimulate the design element of production. Industrial design laws therefore usually only protect designs that can be used in industry, or that can be produced on a large scale. This condition of industrial production is a notable difference between industrial design protection and copyright, since the latter concerns only aesthetic creations. However, in some cases, industrial designs may qualify for protection under copyright, for example where the design can be categorized as a work of applied art.[3]

Industrial designs can generally be protected if they are new or original. Designs may not meet these criteria if they do not differ significantly from other existing designs or combinations thereof. In most industrial design laws, designs dictated solely by the article's function are excluded from protection. If the design for an article produced by many manufacturers, such as a screw, were to be dictated purely by the function the screw was intended to perform, then protection for that design would have the effect of excluding all other manufacturers from producing items intended to perform the same function. Such exclusion is not warranted unless the design is sufficiently novel and inventive to qualify for patent protection. In other words, the legal protection offered by industrial designs concerns only the design that is applied to, or embodied in, articles or products. This protection does not prevent other manufacturers from producing or dealing in similar articles or products, as long as these do not embody or reproduce the protected design.[3]

Industrial design registration protects against unauthorized exploitation of the design in industrial articles. It grants the owner of the design the exclusive right to make, import, sell, hire or offer for sale articles to which the design is applied or in which the design is embodied. The term for an industrial design right varies from country to country. The usual maximum term is from 10 to 25 years, often divided into terms requiring the proprietor to renew the registration in order to obtain an extension of protection. The relatively short period of protection may be related to the association of designs with more general styles of fashion, which tend to enjoy somewhat transient acceptance or success, particularly in highly fashion-conscious areas such as clothing or footwear.[3]

Collective marks are owned by an association, such as an association representing accountants or engineers, whose members use the mark to identify them with a particular level of quality and other requirements set by the association.

Certification marks, such as the Woolmark, are given for compliance with defined standards, but are not confined to any membership of an association.

A trademark used in connection with services is called a service mark. Service marks are used, for example, by hotels, restaurants, airlines, tourist agencies, car-rental agencies, laundries and cleaners. All that has been said about trademarks also applies to service marks.

Broadly speaking, trademarks perform four main functions:

• Distinguish the products or services of one company from those of other companies. Trademarks facilitate the choice to be made by consumers when buying certain products or using certain services. The trademark helps consumers to identify a product or service they are already familiar with or one that has been advertised. The distinctive character of a mark must be evaluated in relation to the goods or services to which the mark is applied. For example, the word “apple” or the image of an apple cannot distinguish apples, but it is distinctive for computers. Trademarks not only distinguish products or services as such, they also distinguish them in relation to the company offering the products or services.[3]
• Refer to a particular company, not necessarily known to the consumer, that offers the products or services on the market. Trademarks therefore distinguish products or services from a given source from identical or similar products or services from other sources. This function is important in defining the scope of trademark protection.[3]
• Refer to a particular quality of the product or service for which a mark is used, so that consumers can rely on the consistent quality of the goods or services offered under that mark. This function is commonly referred to as the guarantee function of trademarks. A trademark is not always used by only one company, since the trademark owner may grant licenses to use the trademark to other companies. It is accordingly essential that licensees respect the quality standards of the trademark owner. Moreover, companies often use trademarks for products they acquire from various sources in the course of business. In such cases, trademark owners are not responsible for producing the products, but instead (and this may be equally important) for selecting those that meet their quality standards and requirements. Even where trademark owners are the manufacturers of a particular product, they may use parts they have selected but not produced.[3]
• Promote the marketing and sale of products, and the marketing and provision of services. Trademarks are not only used to distinguish or refer to a particular company or quality, but also to stimulate sales. A trademark used in this way must be carefully selected. It must appeal to the consumer, create interest and inspire a feeling of confidence. This is sometimes called the communication function. The owner of a registered trademark has an exclusive right in respect of the mark: the right to use the mark and to prevent unauthorized third parties from using it, or a confusingly similar mark, so as to prevent consumers and the public in general from being misled. The period of protection varies, but a trademark can be renewed indefinitely on payment of the necessary fees and on condition that the mark is used. Trademark protection is enforced by the courts which, in most systems, have the authority to block trademark infringement.[3]

Geographical indications are protected in accordance with national laws in a wide range of ways, such as under laws against unfair competition, consumer protection laws, laws for the protection of certification marks or special laws for the protection of geographical indications or appellations of origin. In essence, unauthorized parties may not use geographical indications where that use is likely to mislead the public as to the true origin of the product. Applicable sanctions range from court injunctions preventing unauthorized use to the payment of damages and fines or, in serious cases, imprisonment.[3]

The World Intellectual Property Organization is an international organization dedicated to ensuring that the rights of creators and owners of intellectual property are protected worldwide, and that inventors and authors are recognized and rewarded. As a specialized agency of the United Nations, the organization provides a forum for its member states to create and harmonize rules and practices for protecting intellectual property rights. Most developed countries have protection systems that are centuries old, while developing countries continue to create legal and administrative frameworks to protect their patents, trademarks, designs and copyright.[3]