Intellectual Property Consultants

There is often confusion on whether one has a copyright in a work, or whether they should get a patent for protection.

In this article, you will finally come away with a clear understanding on the difference between these two types of intellectual property.

The Rights Afforded by Copyright Protection:

Copyright protects the expression of literary and artistic work. When a person creates an original work, and have put it in a fixed form, they automatically own the copyright to that work. What this means is the person owns the rights to: reproduce the work, perform the work, record the work, broadcast the work, translate the work, and adapt the work into a different form (i.e. a novel into a screenplay).

Copyright Protects Expressions, Not Ideas:

A common misunderstanding is that copyright protects ideas. Copyright protects the expression of an idea, but not the idea itself. What this means is one hundred people can write an article about copyright. However, we each own the copyright to our specific articles because each one is an original and fixed piece of work.

The Concepts of Originality and Fixation in Copyright:

“Originality” and “fixed” are two important terms in copyright. While the work does not have to be the first of its kind (i.e. this is not the first article ever written about copyright), the expression has to be original (I’m not plagiarizing this article - I have written it myself with original sentence structures and an original flow to the article). As for being ‘fixed’ there is a very good reason for this requirement. For a work to fall under copyright law, it must be in a fixed form - because it would be very difficult to prove what was created if there was no copy of it! A “fixed” form could be something written on paper, recorded onto a CD, recorded on video, or saved on a flash drive.

What Copyright Protects:

Copyright covers a wide variety of artistic works and they are generally characterized as follows:

o Literary Work (novels, poems, computer software source code)
o Artistic/Visual Arts (sculpture, drawing, illustration, graphic design, plans, maps, photographs, architectural work)
o Dramatic Work (films, videos, choreography), Musical (musical composition with or without words)
o Sound Recordings (recordings of music, drama, or lectures)
o Serial & Periodicals (periodicals, newspapers, magazines, bulletins, newsletters, annuals, journals, proceedings of societies)

Patents Protect Inventions:

Patents protect new inventions or useful improvements to existing inventions. Examples are inventions or discoveries of any new and useful process, apparatus, machine, or composition of matter, or any new and useful improvement thereof.

Patents Must Be Obtained:

Unlike copyright which is automatic, a patent must be granted by the government to be valid and can take up to three years with considerable financial investment. If you are going to file for a patent, it is very important you do not disclose your invention to anyone, because it could be grounds to refuse your patent application.

Because there is an application process for patents, a patent granted in one country is not valid in another. As such, you will need to apply separately in each country, or through the Patent Cooperation Treaty (PCT).

Qualifications For Patents:

For an item/process to qualify for a patent, it must generally be:

o new
o useful
o inventive (in other words, it must not be an obvious invention to someone in the field)

Durations of Patents:

Once you successfully hold a patent, you have a limited time (usually around 20 years) where you are the only one who can make this item or use the patented process before it is made public.

Disclaimer

The above information is meant as a general guide to further your copyright and patent knowledge and does not constitute legal advice. For questions about your specific work, you should consult an intellectual property lawyer in your country.

An intellectual property law firm should have attorneys with several years of experience protecting the rights of artists, designers, engineers, and business developers. There are several different types of intellectual property, so a law firm might employ lawyers that specialize in individual topics such as copyrights, patents, trade secrets, trademarks, and industrial designs.

Why are Intellectual Property Law Firms Useful?

Intellectual property law gives incentive to those who create new ideas by offering them exclusive rights to earn money from their ideas for a certain period of time. One might see intellectual property law as a type of temporary monopoly that allows the creator to earn money without competing with others who might try to use the idea, process, design, or work of art for their own profit. An intellectual property law firm can help those who create new ideas prevent others from taking advantage of their work without paying the inventor or creator.

Who Needs an Intellectual Property Law Firm?

There are many different types of intellectual property, so there are also many different types of professionals who might need the services of an intellectual property law firm. Those who work in technology development almost certainly need an intellectual property law firm to make sure no one steals their ideas, programs, or designs. Musicians, writers, and artists of all types might also need an intellectual property law firm to make sure they get all royalties that are due to them from the commercial sale of their creations. Even business professionals might need intellectual property law firms to protect their management concepts.

The Two Categories of Intellectual Property

There are two types of intellectual property, so you might want to choose an intellectual property law firm that specializes in the one that affects you most. The first category gives exclusive rights to artistic and commercial creations. This could include a movie, book, painting, or computer software. The second type that an intellectual property law firm might specialize in is typically called industrial properties. These are typically inventions that are used in production or industry.

Finding an Intellectual Property Law Firm

Depending on where you live, you might find that there are several intellectual property law firms for you to choose from. If you work with other professionals and artists who use the services of an intellectual property lawyer, then you might want to ask them which firms they prefer. Colleagues who have more experience might be able to tell you about the positive and negative experiences they have had with the intellectual property law firms in your area, which will help you develop a short list of firms that you can choose from.

Meet with representatives of the firms that get good reviews from the other people in your field. During your meeting, you might want to ask about their qualifications to help you choose an intellectual property law firm that specializes in the type of products and ideas that you create. You should also ask them how much money they charge so you can choose a firm that is affordable for you.

With the TRIPS Agreement coming into force in 1995, BRIC countries have undertaken significant reforms in their intellectual property systems. A relatively new analytical definition of the industrial components of the economy is ‘Creative industries’, in which creativity being an input and intellectual property is the output. Globally, mapping exercises have concurred that the creative industries are indeed ‘economically significant’ and legitimately comparable to other high profile sectors in terms of their contribution to income, employment and trade.

Concept of IPR in BRIC
Brazil enacted its first intellectual property law in 1887. Brazil meets International Standards of Intellectual Property Protection. Brazil is a signatory of several conventions, treaties, and agreements that define basic, internationally-accepted standards of intellectual property protection including, among others, the Patent Cooperation Treaty (PCT). Brazil is also a member of Trade-Related Aspects of Intellectual Property Rights (TRIPS). The new Industrial Property Law came into force in May of 1996. This law brought Brazil’s patent and trademark regime up to par with the international standards specified in TRIPS. Intellectual Property protection in Brazil includes Copyright Law, Software Law and also some secondary laws.

In Russia the concept of IPR was understood as mostly patents during the times of the former Soviet Union. The owner of the Patents as well as all innovations was always the state. The concept of IPR has already been drastically changed in Russia and now IPR is seen in consisting of Patents, Trademarks, utility modes, designs, domain names and copyrights. After 10 years of Russia’s independence, the country has started to come into compliance with International requirements for intellectual property rights protection. Today also much work is needed to be done to bring Russia up to International standard.

Indian Intellectual Property Laws keep pace with the technological developments & Intellectual Property Laws of other countries. India has different positions with respect to intellectual property right in prior to the member of TRIPS and after the signatory of TRIPS agreement. Patent, Copyright, Trademark and Design were only existed as branch of IPR prior to TRIPS agreement. However, at present Patents (Amendment) Act 2005, TradeMarks Act 1999, Copyright Act 1999, Design Act 2000, Trade secrets, Layout Design of Integrated circuits 2000, Geographical Indications 1999 and Plant Variety 2001 related to IPR are enforced in India. India signed the TRIPS agreement in 1995, joined Paris convention in 1998, Budapest Treaty in 2001, Universal convention for Copyright (UCC) in 1952, Washington Convention for Integrated Circuit in 1989, and convention in Bio-diversity (CBD) in 1994. India is signatory to Berne Convention and Indian Government has already approved Madrid Protocol.

China has had a history of 25 years in the filed of Intellectual property rights protection. China’s current legal IPR framework began in the 1980s, however, in that short time, China has made impressive strides in protecting and enforcing IPR. China became the member of WIPO in June 1980. The patent law of the People’s Republic of China (PRC) was adopted in 1984. In 1993 the law of the PRC against unfair competition was enacted and the copyright law was enforced in 1990.

Enforcement of IP Rights

The originate and history of IPR in BRIC countries as explained above indicates the protection and enforcement of intellectual property rights in the BRIC countries has also been introduced long back , and the journey is clearly far from over.

In spite of having diverse histories, the BRIC economies are receiving roughly similar treatment from the wealthiest nations. Copyright and trademark piracy have always been chosen as a topic for the assessing the future of BRIC intellectual property regimes. However, other areas of intellectual property protection have broader significance to most industries and play a vital role in the economic development of the industry as well as the nation. In particular, the impact of patents on innovation and economic performance is so complex that a well organized patent system is crucial to ensure maximum benefit for a country’s firms and its overall economy.

Despite divergent pasts, the BRICs are generally on the same page today when it comes to the protections afforded pharmaceuticals. The revised law in Brazil now complies with TRIPS, at least in regard to subject-matter protection. Brazil instituted a formal system for the approval of generic pharmaceuticals. After Russia instituted modern patent property rights with individual ownership, Russia currently protects pharmaceutical patents. The previous Indian Patents Act (1970) recognized patents on pharmaceutical ‘processes’, but not on ‘products’, allowing domestic pharmaceutical companies to produce cheap copies of patented drugs made by foreign companies using alternative production methods. India’s introduction of product patents in 2005 heralded innovation and rapid development of that nation’s pharmaceutical sector and delivery of new medicines. The Mashelkar Committee revised report was submitted in March 2009 concluded that every effort shall be made to provide drugs at affordable prices to people of India. The report also stated that it would not be TRIPS compliant to limit granting of patents for pharmaceutical substance to NCE (New Chemical Entities) only, and exclude an entire class of inventions i.e incremental pharmaceutical inventions. According to the conclusion of this report, incremental innovations” involving new forms, analogs, etc with significantly better safety and efficacy standards shall be encouraged.

Chinese social environment for the protection of intellectual property right is complex. The locally produced generics and copy products dominate the Chinese drug market. It is estimated that about 97 percent of the drugs produced by local companies are generics or counterfeits in China.

The component available in all the BRIC compulsory licensing statutes is the provision for government use in times of national emergency. Commercial working of patent is mandatory in India, Brazil and Russia. The failure to manufacture a patented article locally may lead to the imposition of a license. According to Indian Patent Act importation does not amount to working of a patent. Perhaps the most significant compulsory license use by BRIC countries will come not from supplying the home market, but rather from exporting pharmaceuticals to developing or least-developed countries that have taken out licenses. As explained above, India, China and Brazil each have significant pharmaceutical manufacturing sectors and are accomplished at producing generic medications and all of them are the members of TRIP. Natco had filed application for compulsory licenses for export of generic anti-cancer drugs Sunitinib and Erlotinib, both patented in India to Nepal under section 92A of the Indian patent law. However, Natco subsequently requested Controller of Patents to withdraw its applications for compulsory licenses.

Despite the similarities in compulsory licensing provisions, there is a significant divergence in how those flexibilities have been historically utilized in the BRICs. The differences serve as an outline of relative intellectual property development, and may provide a metric for future evaluation. More importantly, it is possible that one path will provide the paradigm for the other BRICs seeking a balance between rights and access.

Economic Significance of IPR on BRIC economies

With the BRICs strengthening their IPR systems during the past decade they have experienced increases in real flows of imports and increases in the real stock of inward FDI (Foreign Direct Investment). The authorities in BRICs have exhibited stronger IPR policies, because of the recognition that infringement activities impose a cost in terms of foregone tax revenues and job creation, with adverse affect on inward technology transfer as well as domestic innovation.

Between 2000 and 2005, the BRIC countries made a contribution of 28 percent of the global growth in dollar terms and 55 percent in purchasing power parity terms. The intra- BRICs trade also reported to accelerate to 8 percent from 5 percent in 2000. In BRIC countries technology transfer via trade and FDI has been an important factor into developing technological capabilities. There have been countless signs of developing trade relationships, including the sharp spurt in Brazilian trade with China, Chinese investment commitments in Brazil and the exponential growth in trade between China and India.

IPR alone does not determine technological success or even increased access to technology, other complimentary factors that specifically affect innovation and technology diffusion such as quality of knowledge institutions, financial system, availability of trained human capital, and networks for research collaboration or interaction are the important factors which BRICs have to facilitate for the technological success.

Software Patents: A unique field of patenting

There is intense debate over the extent to which software patents should be granted. Different countries and regional offices have different standards for granting software patents. Section 3(k) of the Indian patents act prohibits the grant of the patent an invention that is directed to software per se. Indian Patent Office has now introduced Draft Indian Patent Manual 2008. As per section 4.11.6 of Draft Indian Patent Manual 2008, the method claim should clearly define the steps involved in carrying out the invention. It should have a technical character. In other words, it should solve a technical problem. The claim orienting towards a “process/method” should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Brazil provides special protection to software by copyright and software laws which came to effect on 19th June, 1998 and Feb 1998 respectively. A US federal court Judgment on disallowing business method patenting, may have a direct impact on the ongoing debate over amendments to the Indian patents manual. It has been studied that Business method patents are seven times more likely to be litigated as compared to other patent.

In Brazil infringement of copyright in software can give rise to criminal penalties. After the Berne Convention, computer software was treated as a kind of literary work under the Copyright Law in China. Software is still barred from patenting in Russia.

Conclusion
BRICs have all found their own way in preserving at least some legal sovereignty in the intellectual property arena. Although the BRICs have so far grown more than envisaged, yet all is not satisfactory as far as the economies of BRICs are concerned. Current success is obviously no guarantee of future performance. More progress is required if they are to continue to deliver the best possible outcomes over a longer period of time.

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Patent law is intended to give a temporary monopoly to the inventor to make and sell his invention. The period of the patent is limited but it keeps others from making, using, selling or importing the product. It is a license that can be sold, assigned or transferred. A patent is only good in the country where it is issued so patents must be obtained in all desired countries.

A patent is for a specific length of time. It is usually twenty years. When a patent reaches its expiration date the use of the invention is open to all interested parties. Annual renewal fees are to be paid each year during the term of the patent.

All patents have to be new with no part that is available to the public anywhere in the world before the patent is filed. They must have an inventive step or steps and there must be an industrial application. Agriculture is considered an industry for purposes of obtaining a patent.

A patent is said to be pending during the time of application to the acceptance or rejection of the application.

A provisional patent is used to quickly file an application to protect an invention while a patent is being obtained. It is much faster, easier and cheaper than a patent. A provisional patent gives the inventor twelve months to file a full patent application. During this time the term patent pending is used.

Copyright law is the law that protects published and unpublished literature, art and scientific work in any tangible form. It protects anything you can see hear or touch. Copyright laws give the creator the exclusive right to their work whether it is dance, music, photographs, graphics or HTML coding.

Copyright begins as soon as the work is created and turned into a tangible form. That can mean the setting of music to paper or the setting of data to files. The prerequisite is that the information be put in a tangible format and that a date and ownership be attached. This can mean mailing a copy of the item by certified mail and then not opening it when it arrives. The copyright then needs to be registered with the U.S. Copyright Office as a requirement in order to sue for monetary damages should a violation of the copyright arise. However, if somebody copies and redistributes the item without permission before the copyright is registered, the author still has the right to assert a copyright claim as the true author.

The above applies to digital art and graphics. Open a gif, jpg, or png file that you created and look at the properties. It states the date you saved it to your hard drive as the date of creation. Mail the disk to yourself in a certified mail envelope and when it arrives put it in a safe place.

The proper way to place a copyright notice is as follows: Copyright © (first date of creation) (name of owner). Like this: Copyright © 2007 John Smith.

Copyrights last for a long period of time. The time depends on the item and the country but it is often twenty-five to fifty years after the death of the holder.

Trademark law is intended to let buyers know what they are buying. A trademark is a symbol or name that identifies a product as belonging to a specific company and that it is legally registered to that company so that it can only be used by that company

Trademark infringement is when a company uses an identical or confusingly similar mark to the trademark of another company. An owner of a trademark can bring legal proceedings against anyone who infringes on his registration. In the United States this is not true of unregistered marks.

Each one of these entities is unique and has a unique purpose, set of laws and applications. They originated separately and cover different activities and issues.

The term intellectual property came into existence in 1967 after the World Intellectual Property Organization was founded as a UN organization. The term makes people think of the three separates entities as a single entity and confuses many. There is an ongoing disagreement about this generalization.

If you are trying to market an invention you should try to become as educated as possible about the process and get a provisional patent. Be sure you are working with someone with integrity. There are many scams and the process is complicated and can be very expensive. Often a patent attorney is needed to research the proposed patent and to make the drawings. It is seldom a good idea to become involved with a company that says it can handle the process from registration to marketing and production.

These companies usually own several interrelated companies that siphon off the money and leave the inventor high and dry. Remember the patent does not necessarily go to the person that invents the item but to the person who patents it first. Also, if a product has been in general use for a specified period of time it is no longer patentable unless a new unique feature or improvement can be illustrated.

Understand the uniqueness of each of the parts of the intellectual property umbrella. Do not let the boundaries become blurred and double check to make sure you remain in control.

Learn more about intellectual property by visiting IP Watchdog. IP Watchdog is an excellent resource with many articles about intellectual property including provisional patents, copyrights, invention marketing, and trademarks. Article Source: http://EzineArticles.com/?expert=Dee_Bovis

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