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UNDERSTANDING INDUSTRIAL PROPERTY
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Introduction
This booklet is intended to provide an introduction for non-specialists or newcomers
to the subject of industrial property. It explains in layman’s terms the
principles underpinning industrial property rights. It describes the most common
forms of industrial property, including patents and utility models for inventions,
industrial designs, trademarks and geographical indications. And it outlines
the means by which creators can seek protection for their industrial property.
Detailed legal or administrative guidance on how, for example, to apply for
protection or to deal with infringement of industrial property rights, is not
covered in this booklet, but can often be obtained from national Intellectual
Property Offices. The further information section at the back of this booklet also
lists some useful websites and publications for readers requiring greater depth.
A separate WIPO publication, Understanding Copyright and Related Rights,
offers an equivalent introduction to the subject of copyright.
Intellectual Property
Industrial property legislation is part of the wider body of law known as intellectual
property. The term intellectual property refers broadly to the creations of the
human mind. Intellectual property rights protect the interests of creators by
giving them property rights over their creations.
The Convention Establishing the World Intellectual Property Organization (1967)
does not seek to define intellectual property, but gives the following list of the
subject matter protected by intellectual property rights:
literary, artistic and scientific works;
performances of performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavor;
scientific discoveries;
industrial designs;
trademarks, service marks, and commercial names and designations;
protection against unfair competition; and
“all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields.”
Intellectual property relates to items of information or knowledge, which can
be incorporated in tangible objects at the same time in an unlimited number of
copies at different locations anywhere in the world. The property is not in those
copies but in the information or knowledge reflected in them. Intellectual
property rights are also characterized by certain limitations, such as limited
duration in the case of copyright and patents.
The importance of protecting intellectual property was first recognized in the
Paris Convention for the Protection of Industrial Property in 1883 and the Berne
Convention for the Protection of Literary and Artistic Works in 1886. Both treaties
are administered by the World Intellectual Property Organization (WIPO).
Countries generally have laws to protect intellectual property for two main
reasons. One is to give statutory expression to the moral and economic rights
of creators in their creations and to the rights of the public in accessing those
creations. The second is to promote creativity and the dissemination and
application of its results, and to encourage fair trade, which would contribute
to economic and social development.
The Two Branches of Intellectual Property
Intellectual property is usually divided into two branches, namely industrial
property and copyright.
Copyright
Copyright relates to artistic creations, such as poems, novels, music, paintings,
and cinematographic works. In most European languages other than English,
copyright is known as author’s rights. The expression copyright refers to the main
act which, in respect of literary and artistic creations, may be made only by the
author or with his authorization. That act is the making of copies of the literary
or artistic work, such as a book, a painting, a sculpture, a photograph, or a
motion picture. The second expression, author’s rights refers to the person who
is the creator of the artistic work, its author, thus underlining the fact, recognized
in most laws, that the author has certain specific rights in his creation, such as
the right to prevent a distorted reproduction, which only he can exercise, whereas
other rights, such as the right to make copies, can be exercised by other persons,
for example, a publisher who has obtained a license to this effect from the author.
Industrial Property
The broad application of the term “industrial” is clearly set out in the Paris
Convention for the Protection of Industrial Property (Article 1 (3)): “Industrial
property shall be understood in the broadest sense and shall apply not only
to industry and commerce proper, but likewise to agricultural and extractive
industries and to all manufactured or natural products, for example, wines, grain,
tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.”
Industrial property takes a range of forms, the main types of which will be
outlined in this booklet. These include patents to protect inventions; and
industrial designs, which are aesthetic creations determining the appearance
of industrial products. Industrial property also covers trademarks, service marks,
layout-designs of integrated circuits, commercial names and designations, as well
as geographical indications, and protection against unfair competition. In some
of these, the aspect of intellectual creation, although existent, is less clearly
defined. What counts here is that the object of industrial property typically
consists of signs transmitting information, in particular to consumers, as regards
products and services offered on the market. Protection is directed against
unauthorized use of such signs likely to mislead consumers, and against
misleading practices in general.
Patents for Invention
Most laws dealing with the protection of inventions do not actually define the
notion of an invention. 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 merit the name of invention, must be a new one. Merely
discovering something that already exists in nature, such as a previously unknown
plant variety, is not an invention. Human intervention must be added. So the
process for extraction of a new substance from a plant may be an invention.
An invention is not necessarily a complex item. The safety pin was an invention
which solved an existing “technical” problem. New solutions are, in essence,
ideas, and are protected as such. Thus protection of inventions under patent
law does not require that the invention be represented in a physical embodiment.
Patents, also referred to as patents for invention, are the most widespread means
of protecting the rights of inventors. Simply put, a patent is the right granted to
an inventor by a State, or by a regional office acting for several States, which
allows the inventor to exclude anyone else from commercially exploiting his
invention for a limited period, generally 20 years. By granting an exclusive right,
patents provide incentives to individuals, offering them recognition for their
creativity and material reward for their marketable inventions. These incentives
encourage innovation, which in turn contributes to the continuing enhancement
of the quality of human life. In return for the exclusive right, the inventor must
adequately disclose the patented invention to the public, so that others can gain
the new knowledge and can further develop the technology. The disclosure of
the invention is thus an essential consideration in any patent granting procedure.
The patent system is so designed as to balance the interests of inventors and the
interests of the general public.
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 the entity he works for, submits an application to the national or regional patent
office. In the application the inventor must describe the invention in detail and
compare it with previous existing technologies in the same field in order to
demonstrate its newness.
Not all inventions are patentable. Laws generally require that an invention fulfill the
following conditions, known as the requirements or conditions of patentability:
Industrial Applicability (utility). The invention must be of practical use,
or capable of some kind of industrial application.
Novelty. It must show some new characteristic that is not known in the
body of existing knowledge (referred to as prior art ) in its technical field.
Inventive step (non-obviousness). It must show an inventive step that could
not be deduced by a person with average knowledge of the technical field.
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 patentablility 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 its commercial
exploitation is necessary to protect public order, good morals or public health.
The conditions of novelty and inventive step (non-obviousness) must exist at a
certain date, generally the date on which the application is filed. There is an
exception to this rule, covered by an applicant’s right of priority, regulated by
the Paris Convention for the Protection of Industrial Property. This exception
relates only to applications made in countries party to 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 his successor in title) may, within
Understanding Industrial Property
a specified time period, apply for protection for the same invention in any of the
other member countries. These later applications will be regarded as if they had
been filed on the same day as the earliest application.
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 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 the second application.
This is subject to the period between the two dates not exceeding 12 months.
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.
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 authorization of the patentee. In principle, anyone
who exploits a patented invention without the patentee’s authorization commits
an illegal act. The protection is granted for a limited period, generally 20 years.
Once a patent expires, the protection ends, and the invention enters the public
domain. The patentee no longer holds exclusive rights to the invention, which
then becomes available for commercial exploitation by others.
The rights conferred by a patent are not described in the patent itself. Those
rights 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 without
the owner’s consent from making, using, offering for sale, selling or importing
for these purposes the product;
in the case of a process patent, the right to prevent third parties without
the owner’s consent from using the process; and to prevent third parties from
using, offering for sale, selling or importing for these purposes the products
which were obtained directly by that process.