#5393 - Introduction To Intellectual Property - Intellectual Property Law

Introduction to Intellectual Property

IP LLM Notes

Notes

Introduction 3

1. General Issues 3

What is intellectual property? 3

What is the purpose of intellectual property? 3

Pressure to expand protection – tensions and controversies – some examples 3

2. Types of intellectual property 3

(a) Patents 3

(b) Copyright 4

(c) Trade Marks and Names 4

(d) Confidential information/ trade secrets 5

(e) Other - should the law expand? 5

3. Justifications for IP 5

Natural rights arguments 5

Utilitarian arguments 5

A mixed approach? 6

4. The EU’s influence on intellectual property - harmonisation 6

Introduction

Patents, copyright, trade marks, design rights, performers’ rights, recording rights, plant variety rights, semi-conductor chip protection, database rights, geographic indications etc...

We often use the language of IP to cover a wide range of intangible things, many of which are not actually covered by the law, so this is the influence of colloquialism on the language of IP. We also have the idea of Industrial Property, which usually refers to Patents, Designs and Trademarks, not the other areas of IP.

One of the purposes of IP law is to protect applications of ideas and information that are of commercial value - such protection offers potentially valuable economic rewards. This economic element shows the pressure to expand and strengthen IP. The protection leads to incentives to create IP products, which is beneficial. This can be seen in things like protection for databases and conductor chip protection. However, technology also leads to ways around the protection for intellectual property.

J. Craig Venter Institute, Maryland – has synthetically reproduced the DNA of the bacteria Mycoplasma laboratorium. Goal to create an artificial life form based entirely on a man-made DNA genome. Hypothesis that this might bring solutions to practical problems - diseases, energy, global warming… In May 2010, Venter and his team built the genome of a bacterium from scratch and incorporated it into a cell to make what they call the world’s first synthetic life form – nicknamed SYNTHia. The institute has filed a patent on the genome. Opponents have expressed concerns that such technology could be used negatively as well as positively. Objections have come from bioethics campaigners: ‘For the first time, God has competition’.

The question here is whether the considerable costs of research should be allowed to be recouped by the awarding of intellectual property rights.

Compulsory licensing of pharmaceuticals - The Doha Declaration (2001). Although reiterating their commitment to the TRIPS agreement, WTO members affirmed that it could and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.

[Glaxo v Dowelhurst & Taylor [2004] EWCA Civ 290; [2005] ETMR 104]

‘If a major pharmaceutical company is treated in this manner when it is voluntarily trying to assist with the supply of inexpensive drugs to developing countries, one can only anticipate the extensive litigation as envisaged under the Doha Declaration finally comes into effect.’

Illegal downloading – Napster’s early days.

The Pirate Bay – ‘The world’s most resilient bittorrent site’

- granted for inventions, i.e. technological improvements over what is already known

- issued by state or regional patent office, usually with substantive pre-grant examination

- maximum duration: 20 years

- adequate description in patent specification

- right good against all third parties

- right extends to all embodiments of the invention as defined in specification

- objectives: to encourage invention and subsequent commercial innovation, to secure

early public knowledge of invention

A patentable invention must be…

New,

Inventive (so not obvious)

Capable of industrial application

Subject-matter not excluded

So, we don’t patent…

Discoveries and scientific theories ‘as such’

Business methods

Aesthetic creations

Methods of medical treatment (e.g. surgery)

Plant and animal varieties

But we CAN patent…

Inventions which concern plants or animals, but which are not confined to a single plant or animal variety (the Harvard Oncomouse).

- for literary, dramatic, musical and artistic works (now including films) and ‘neighbouring’ subject-matter: sound recordings, broadcasts, cable-casts, typographical format, and databases

- rights arise informally, essentially on creation: registration not a pre-requisite

- duration: LDMA works: author’s life plus 70 years, other ‘neighbouring’ copyrights

lesser periods

- right is only against copying, and lies in the expression of an idea rather than its

general concept or character

- objectives: to recognise the personal relationship between author and work; to

encourage production of new works which add to cultural heritage???

- objective: not to encourage the production of such symbols but to protect the means by

which one competitor distinguishes goods and services from those of another

- duration of right: so long as needed

- entitlement established either by actual trading (reputation then protected against

passing off); or by registration of mark with registry

- effect should never be to keep product or service off market, but only the misuse of

identifiers for products and services

What can you trade mark?

Any sign capable of being represented graphically – such as: words, designs, the shape of goods or their packaging, sounds - provided that the sign distinguishes your goods from other people’s.

- information which is capable of being the subject of confidence, and has been acquired

on terms of confidence, may not be used or disclosed in ways which break the obligation

of confidence

- protection lasts as long as needed

- liability is more than contractual, but not in a complete sense proprietary

Now-established special cases include: semiconductor chip layouts, database right, plant varieties, geographical designations of origin (Parma ham; Rutland Bitter; Whitstable Oysters), and database right.

Is there a common basis for the grant of all IP rights?

Lockean view - the fruits of one’s labour

‘Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.’

John Locke’s Second Treatise of Government (1690), section 27

There are considerable difficulties with natural rights rationales. As noted above, the House of Lords in Designers Guild placed considerable weight on the Lockean conception of ownership of one’s labour: “[n]o one else may for a season reap what the copyright owner has sown” (Lord Bingham). Earl of Halsbury LC expressed similar sentiments in the earlier case of Walter v Lane. This is difficult to apply to patents. The Lockean proviso that there must be “enough and as good left in common for the others” is clearly violated by the denial of rights to independent inventors. But even in the context of...