Intellectual property rights

Intellectual property rights are the rights given to persons over the creations of
their minds. They usually give the creator an exclusive right over the use of
his/her creation for a certain period of time.

“intellectual property shall include rights relating to:

1) literary, artistic and scientific works:
2) performances of performing artists, phonograms and broadcasts;
3) inventions in all fields of human behaviour;
4) scientific discoveries;
5) industrial designs;
6) trademarks, service marks, and commercial names and designations;
7) protection against unfair competition and all other rights resulting from
intellectual activity in industrial scientific, literary or artistic fields”.

Nature of Intellectual Property

Intellectual properties have their own peculiar features. These features of
intellectual properties may serve to identify intellectual properties from other
types of properties. Thus, we will discuss them in brief.
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it
an issue? Because intellectual property rights have one characteristic which
other national rights do not have. In ownership of intellectual property of
immovable properties, issues of cross borders are not probable. But in
intellectual properties, it is common. A film made in Hollywood can be seen in
other countries. The market is not only the local one but also international. If a
design in China is imitated by another person in France which law would be
applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most
intellectual property rights cannot be implemented in practice as soon as the
owner got exclusive rights. Most of them need to be tested by some public laws.
The creator or author of an intellectual property enjoys rights inherent in his
work to the exclusion of anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible
to put a dichotomy between intellectual property rights and the material object
in which the work is embodied. Intellectual property can be bought, sold, or
licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most
intellectual property rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual
property attempts to preserve and find adequate reconciliation between two
competing interests. On the one hand, the intellectual property rights holders
require adequate remuneration and on the other hand, consumers try to
consume works without much inconvenience. Is limitation unique for intellectual
property?
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single
original work without affecting the interest of other right holders on that same
item. Because of the nature of indivisibility, intellectual property is an
inexhaustible resource. This nature of intellectual property derives from
intellectual property’s territorial nature. For example, an inventor who registered
his invention in Ethiopia can use the patent himself in Ethiopia and License it in
Germany and assign it in France. Also, copyright is made up of different rights.
Those rights may be divided into different persons: publishers, adaptors,
translators, etc.

Classification of Intellectual Property

Intellectual Property is classified into two parts:
1. Industrial Property: Industrial Property alludes to the property that has got
protection under intellectual property laws and includes trademark, service mark,
designs, patent for the invention, trade secret, utility model, etc.
 Trademark: Trademark refers to an ascertainable sign, symbol or a word
determining the source of a particular product. It is used to afford protection to
the mark owner, by facilitating restricted rights to use it. When it identifies the
service provider, it is called as a service mark. Once registered, the trademark
is protected for a definite period, after which it can be renewed by paying a
fee.
 Patent: Patent is the protection provided to the inventor for their creation which
can be a device or a process. It is a government license, which confers
exclusive rights to the inventor, for a specified period, to debar others from
creating, using or selling it.
 Design: Otherwise called industrial design, is primarily related to the aesthetic
features of a product or system, which makes it more appealing and thus
increases its commercial value.
 Trade Secrets: As it is evident from the name, it is the sensitive business
information which provides a competitive edge to the firm.
2.Copyright: Copyright implies the exclusive rights assigned to the creator or
composer of artistic and literary works, for a definite period, to stop others from
copying the work. It covers a wide variety of literary works such as novels, poems
and plays, films, drama and musical work and artistic creations, e.g. paintings,
sculptures, photographs and many more.
Intellectual Property Protection Explained
Entrepreneurs and business owners need to understand the basics of intellectual property
(IP) law to best protect their hard-earned creations and ideas from unfair competition.
Intellectual property includes distinctive items that you have created and ones that give you
an economic benefit.

Four Types of IP Protection for Businesses

You'll find four main types of IP protection for your business:

1. Patents
A patent grants property rights on an invention, allowing the patent holder to exclude others
from making, selling, or using the invention. Inventions allow many businesses to be
successful because they develop new or better processes or products that offer competitive
advantage on the marketplace. You get a patent by filing a patent application with the U.S.
Patent and Trademark Office (USPTO).
You'll discover three types of patents:

 Utility
 Design
 Plant

A utility patent is the most common type, covering any process, machine, article of
manufacture, or composition of matter, or any new and useful improvements thereof.
To qualify for a utility patent, the invention must be novel, nonobvious, and have some
usefulness. Novel means new and not known by anyone else, while nonobvious means that
it can't be immediately obvious to someone having ordinary skills in the industry. A design
patent covers any new, original, and ornamental design for an article of manufacture, while
a plant patent covers any new variety of asexually produced plant. A design patent lasts for
14 years, and a utility or plant patent lasts for 20 years.
With patent protection, the payent holder can take legal action against anyone who copies
the patented invention, design, or discovery. Without this legal protection, anyone can use
similar designs, products, and processes without risk. In fact, if you don't file for patent
protection on your invention within 12 months of releasing it in a public setting, the
opportunity to patent it will be gone.
Other companies or individuals can also file for a patent on your idea, taking away your
chance to do so first. When reviewing patent applications and violations, the USPTO will
usually default to the individual who submitted the application first, since proving who used
something first is nearly impossible.
Before filing for a patent, you should determine who will own the idea. Some companies file
for patents on their protected inventions, but if an employee came up with the idea, the
individual may be granted holder of the patent. If your business owns the patent, you must
protect the patent with the company by having employees involved in the invention process
sign an agreement stating that the idea belongs to the company.
The patent application process is complicated, one that could take up to six years and cost
thousands of dollars, so the USPTO recommends that you hire a qualified patent
attorney or agent to file your patent. To maintain the force of the patent, you must pay fees
due at 3 1/2, 7 1/2, and 11 1/2 years after the patent grant. The total amount of
maintenance fees for a small entity, such as an independent inventor, is $4,430, while for
others the total is $8,860. Visit the USPTO website for more information about patent
applications.
Certain industries rely on patents more heavily than others. For example, pharmaceuticals
go through extensive and costly testing procedures to make sure that products are safe for
human use. When spending considerable money on a product, applying for a patent is one
of the only ways that pharmaceutical companies can protect their investments. Without a
patent, any other company could manufacture an exact replica of the drug.
In March 2011, the U.S. Senate passed The America Invents Act, one of the most
significant changes to patent law in the last century. The final details of the laws are still
under review, but its purpose is to change what makes an idea patentable. This act also
increases the protections for the first person or company to file for a patent. Critics of the act
believe that the regulation may be biased toward larger companies with more funds
available to patent ideas quickly.
Those on the opposite side believe that patents and other forms of protection restrict free
trade and economic growth. But IP protection laws are still in place and designed to protect
inventors, business owners, and creators.

2. Trademarks
A trademark is a word, phrase, symbol, or design that distinguishes the source of products
(trademarks) or services (service marks) of one business from its competitors. In order to
qualify for patent protection, the mark must be distinctive. For example, the Nike "swoosh"
design identifies athletic footware made by Nike.
Although rights in trademarks are acquired by use, registration with the USPTO allows you
to more easily enforce those rights. Before registering your trademark, conduct a search of
federal and state databases to make sure a similar trademark doesn't already exist.
This trademark search can help you reduce the amount of time and money you could spend
on using a mark that is already registered and trademarked.
To apply, you must have a clear representation of the mark, as well as an identification of
the class of goods or services to which the mark will apply. You can submit an online
application, and filing fees vary according to several factors, including the form type and the
number of classes of goods or services. Trademarks expire after 10 years, and renewal
terms are 10 years.
Before receiving approval from the USPTO, companies and people can use the TM symbol
to indicate ownership of the mark. Upon approval, you can legally add the registered
trademark symbol (®) to your mark. The TM symbol doesn't hold any legal weight, but it can
indicate to other businesses or people in your industry that you intend to claim the mark.
To register a trademark, you can:

1. File a "use" application after using the mark.

2. File an "intent to use" application before using the mark .

If a foreign application exists, a trademark holder might be able to rely on that application for
use in the United States. Filing an application is complex, so most applicants hire an
attorney who specializes in trademarks.

3. Trade Secrets
A trade secret is a formula, process, device, or other business information that companies
keep private to give them a business advantage over their competitors. Examples of trade
secrets include:

 Soda formulas
 Customer lists
 Survey results
 Computer algorithms

Unlike the other types of intellectual property, you can't obtain protection by registering your
trade secret. Instead, protection lasts only as long as you take the necessary steps to
control disclosure and use of the information.
Businesses use nondisclosure agreements, restricted access to confidential information,
post-employment restrictive covenants, and other security practices to maintain trade
secrets.
When protecting intellectual property, look at competitors and others in the industry as if
they are in competition for your ideas. Protecting yourself and your company is the best way
to make sure that no one else can use your distinctive inventions, works, marks, or other
ideas. Meet often with employees to keep them aware of what must stay out of public
discussion and away from competitors. Physical and digital protection of ideas is also
necessary, so track who has access and limit who can get into important databases.
Looking at the risk and cost-benefit analysis can also help you decide what's worth
protecting. Protection of intellectual property often comes at a high cost and takes much
time, so make sure your time and money is worth the investment.

4. Copyrights
Copyrights protect original works of authorship, such as literary works, music, dramatic
works, pantomimes and choreographic works, sculptural, pictorial, and graphic works,
sound recordings, artistic works, architectural works, and computer software. With copyright
protection, the holder has the exclusive rights to modify, distribute, perform, create, display,
and copy the work.
In order to qualify under copyright laws, the work must be fixed in a tangible medium of
expression, such as words on a piece of paper or music notes written on a sheet. A
copyright exists from the moment the work gets created, so registration is voluntary.
However, registered works may be eligible for statutory damages and attorneys fees in
a copyright infringement suit, so you may want to consider registering your work through the
U.S. Copyright Office. You can register your copyright online by completing an application,
submitting a nonrefundable fee of $35, and sending in a nonreturnable copy of your work.
The average processing time for e-filed copyright applications is 2 1/2 months and a little
more than 5 1/2 months for paper filing. Copyright duration depends on several factors, but
generally for works created after Jan. 1, 1978, the copyright lasts for the life of the author
plus an additional 70 years and is nonrenewable. You can visit the U.S. Copyright Office
website for more information.