Intellectual Property Law - Essay Example

? Intellectual Property Law Word Count: 3,014 (12 pages) Part A. Trevor is a laboratory assistant at the of Eastshire, in the Chemistry Department. His job consists of assisting the PhD students with their experiments, and generally running the labs in his department. He does not have any official projects of his own, but by convention his boss does allow him a small area of the lab for any small projects he might want to run as long as they do not interfere with his normal duties. ?One weekend he comes into the laboratory and starts experimenting with a PhD student’s project into a cure for the common cold. The student has got completely stuck, so Trevor feels sorry for him. He adds the (fictitious) compound Millenniumium to the drug the student was working on. This compound is commonly used in treatments for tropical diseases, but no-one has ever thought to apply it to a cure for the common cold. Trevor tries the drug on a friend of his who has a very bad cold, and he is cured and back at work by Monday morning. ?Trevor reports his discovery to the Head of Department, who immediately begins a patent application for the new drug, however he does not put Trevor’s name on the application form as inventor that goes to the Intellectual Property Office. ?A senior professor at the University of Westshire publishes an article about this new drug saying that what Trevor has done is so obvious, as the search for a cure to the common cold had become so desperate that people have been adding all sorts of random compounds to drugs, and that Millenniumium would have been tried at some point soon. ??Advise Trevor: ??(a) as to any rights he might have in the patent being applied for in the invention Trevor has rights to have his name placed on the patent. Since he is the person who developed and designed the new drug, he should at least be designated as the co-creator of the drug, along with the Ph.D. student who should also be considered co-creator—since that was originally the Ph.D. student’s plan. The fact that Trevor added Milleniumium to the drug was indeed just a mere coincidence, but he should still get credit on the patent being applied for in the invention. Trevor should definitely be able to have his name, effectively, on the patent, therefore. He is just as responsible as the Ph.D. student for having come up with a cure for the common cold. However, there are some things that Trevor might want to consider before applying his name to the patent. Coming from a relatively unknown Ph.D. student, this “cure for the common cold” could have major consequences (good and/or bad). The good consequences that could happen is that the cure for the common cold could be a huge success and garner both Trevor and the Ph.D. student international acclaim—since this would be such a huge discovery. On the other hand, there have been no clinical trials on the medication/drug. If something were to go wrong with the drug being used by actual people, Trevor could also be liable for damages claimed against him if he were to be named in a lawsuit which could prove the drug was faulty. Thus, whether Trevor puts his name on the drug discovery patent or not may have a lot to do with liability, as shall be seen in the future. In the subsequent follow-up question, we will speak more about this thread or line of thought as well. Trevor has to think in terms of dollar signs as well—or, in his case, Euros. This is because trial medications can actually cost a lot of money to get approval for to get them to take off in terms of popularity. Also, a lot of doctors need to proffer the medication before the drug starts to gain popularity. In addition, Trevor should think about all these aspects before he assigns his name to anything. With so many things that could possibly go wrong, it doesn’t make sense for Trevor to wildly assign his name to a product that he’s not completely sure about in terms of safety. The other unknown element that might be difficult to ascertain is what Trevor’s legal recourse would be in the case that there were to be a lawsuit placed against him and/or his friend the Ph.D. student. Of course, more about this will be discussed later in the next section. However, what must be addressed right now is the issue of whether or not Trevor should assign his name to a product that was only tested on one person once. It’s not like it’s a miracle drug just because someone took it once and it “appeared to work.” Colds typically last up to 9 days, and the person recovering from the cold, Trevor’s friend, may have been on the tail-end of his cold. Thus, his cold might almost have been over with by the time that Trevor gave him the trial medication. There are several concomitant factors that could have contributed to the fact that Trevor’s friend suddenly recovered from the cold. Perhaps he had a good immune system. Perhaps it was not the Milleniumium in the drug that caused him to get better, but was the original recipe itself that had worked. After all, there was no mention of a trial having been done with the medication without the Millenniumium before it was given to the first trial patient. Also, there were no control studies going on alongside the one single trial to either refute or support the evidence that the drug Millenniumium, when added to the drug the Ph.D. student had been testing—was either more or less effective. The bottom line is, not enough research has been done in order to either confirm or refute any claims that this medication worked or not, in effect. As such, it should be noted that Trevor should be very careful about what work he puts his name upon in terms of prescription drug patenting. If he is named co-creator of this drug—which has had almost barely any clinical research performed on it—it could be very detrimental to his well-being if the drug is either proved to be faulty or otherwise have defects, or is a prescription drug which either creates defects or causes other medical problems for people who already have a medical issue. For example, sometimes prescription drugs need more trials before they are patented and put on the market. (b) whether the drug is deserving of protection under the requirements of patentability in UK law. ? This prescription drug is not deserving of protection under the requirements of patentability in UK law. First of all, the prescription drug has not been tested adequately in order to prove its saleability. This could lead to a myriad of problems. If the prescription drug were later found out to be faulty, the UK could have lawsuits pending against it for having allowed a faulty drug onto the market. Not only this, but both Trevor and the Ph.D. student would be liable to some extent for allowing an inadequately-tested prescription drug to be patented. Without a doubt, allowing this prescription drug to go on the market, getting protection under the requirements of patentability in UK law—would be a grave error. Before any prescription drug receives approval for protection under UK patent law, there must be clinical trials on the medication first. Simply one person being miraculously “cured” is not enough for someone at a university to give an “OK” or approval for the patent of the drug itself. The prescription drug that Trevor and the Ph.D. student produced does not deserve protection because it does not have any evidence that it will be able to withstand scrutiny. Part B. “Copyright exceptions are designed to allow uses of content that offer benefits deemed either more important than those delivered by the core aims of copyright and/or benefits that do not significantly detract from those aims.” ?-The Hargreaves Report, Digital Opportunity, a review of intellectual property and growth, p.42. The Consumer Protection Act 1987 is supposed to provide responsibilities for ensuring products are safe and fit for the purposes for which they are manufactured. The case of Donoghue v Stephenson [1928] (the ‘snail in the ginger beer bottle’) set out a basic action for a consumer to sue the manufacturer of a defective product. Mrs Donoghue brought the action in negligence against the manufacturer as she had no right of action in contract law as it was her friend who had purchased the drinks. The case decided that manufacturers owe a common law duty of care to consumers and consumers have a right of action against manufacturers in negligence for defective products. However, the common law has now been substantially revised by statutory provisions. The Consumer Protection Act 1987 also is worth noting at this point. This Act implements the 1985 EEC Directive on product liability providing a new system of remedies for consumers against manufacturers. The main purpose of the Act is to impose liability for defective products primarily on someone who is regarded as the main ‘producer’ of a product. The Act also provides that the supplier of defective goods may also be liable in certain circumstances as will the retailer of retailer branded products even if the retailer did not manufacture those goods. The definition of ‘goods’ under the Act is fairly wide and includes, in effect, any manufactured goods (by any process) and electricity. The liability under the Consumer Protection Act is for defective products. The test of defectiveness is whether or not the product is as safe as people would be generally entitled to expect. Anyone who suffers injury (or property damage in certain circumstances) caused by a defective product can recover their loss under the provisions of the Act. The Consumer Protection Act 1987 is often used alongside the Sale of Goods Act 1979 which provides remedies for consumers against retailers for goods sold which are not of fit and proper quality. Product liability also deals directly with planning. It may seem at first look that product liability has little relevance to the planning or security of events. However the law is relevant in certain circumstances where members of the public are injured or suffer loss from defective products. This could include food poisoning from contaminated beef burgers or injury caused by defective security barriers or pyrotechnics. In this particular case it could include a defective prescription drug. The case of “Donoghue –v- Stephenson” (2011), set out the basic principles of negligence in English law (pp. 1). The case concerned food poisoning suffered by Mrs Donoghue whose bottled ginger beer was contaminated with the remains of a decomposed snail. As Mrs Donoghue didn’t buy the ginger beer (her friend did) she had no action in contract law (so she wasn’t a party to that contract). The case decided that, in English Law there must be and is a general conception of relations giving rise to a duty of care. The liability for negligence is based upon a general public sentiment of wrongdoing for which the offender pays. The case created the concept of negligence as an action in civil law allowing injured parties to sue wrongdoers for their loss and damage. To find a defendant liable for negligence any plaintiff will have to satisfy the court of the following: That the defendant must have owed the plaintiff a duty of care; That the defendant through an act or omission breached that duty; This breach caused loss to the defendant; The loss is not too ‘remote’; and That the defendant has no relevant defence. From what has been outlined above, the event organiser owes a duty of care to avoid acts or omissions which they might reasonably foresee could injure their neighbour. For an injured party to bring an action for negligence against a defendant they must show that the defendant breached that duty of care. The test of whether or not the duty of care is breached is an objective test – what level of care and skill was required by the activity carried out and has the defendant measured up to that level? It is important to realise that where there is an increased probability of harm from activities carried out by the defendant then there will be an increased burden on the defendant to discharge those activities safely and competently. There will be negligence when the defendant falls below the standard of care required in the circumstances to protect others from the unreasonable risk of harm. Common professional or industry practices and codes of conduct will often be used as a benchmark against which behaviour is tested – but they are not in themselves the final determinant of negligence or a breach of the duty of care. If a duty of care is owed to the plaintiff and there has been a breach of that duty of care the plaintiff must show that on the balance of probabilities his or her loss was caused by the negligence and not by some other intervening act or natural cause. In the event of a breach of the duty of care a plaintiff must establish that s/he can claim damages. To recover damages in respect of injury caused by the defendant’s actions or omissions the plaintiff must establish that the injury was of a foreseeable consequence of that negligence. The loss must not be too remote. The case of “Overseas Tankship (UK) Ltd –v- Morts Dock & Engineering Co Ltd” (2011), a case usually referred to as The Wagon Mound, sets out this general principle (pp. 1). Oil from the defendant’s ship was carelessly spilt onto a wharf. This oil then caught fire and damaged the wharf. The court held that whilst it was foreseeable that the spilt oil might damage the wharf it was not foreseeable that a fire might start so the claim for damage caused by the fire was disallowed. The reason behind this rule is to prevent a defendant being unjustly punished for his or her negligent acts or omissions There are a number of defences which a plaintiff may raise against a claim of negligence. One established defence is that the plaintiff voluntarily assumed a risk of injury – she or he knew of the risk and accepted it in his or her free will. Another is that the plaintiff is partially to blame. Another is that the plaintiff was involved in some criminal activity at the time. Businesses often seek to limit liability by way of contract terms or by waivers or notices of exclusion of liability. The “Unfair Contract Terms Act 1977” (2011) restricts a defendant’s reliance on this defence by preventing exclusion by way of contract terms any limitation of liability for negligently causing death or personal injury and limits other exclusions or limitations of liability by making them subject to a test of reasonableness (pgh. 1). According to “Consumer Protection Act 1987” (2011) prohibits reliance on any provision which purports to exclude liability in respect of damage caused by defective products (pgh. 1). A court can also reduce an award for damages if it finds that the plaintiff has some responsibility for the injury and damage she or he has suffered and the defendant raises the issue of contributory negligence. The Law Reform (Contributory Negligence) Act 1945 provides that the courts can now reduce awards: “…to the extent that the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage…” (Farmer and Moore, 2009, pp. 7). Finally, the issue of illegality might be raised by the defendant - where the plaintiff was involved in some illegal activity which was material to the claim being brought against the defendant. However, illegality will not always defeat the claim in negligence. For example, the act of trespass will not necessarily defeat a claim by the trespasser against the owner and/or occupier of premises where the trespasser is injured due to some danger on the land or premises. The case decided that in certain circumstance individuals or organisations will owe a duty to others. This duty of care was defined in the following way: One must take reasonable care to avoid acts and omissions which one can reasonably foresee would be likely injure his or her neighbour. The word ‘reasonable’ can mean different things in different circumstances. What might be a reasonable precaution or act to make patrons safe at a small club may well not be reasonable to ensure safety at a major stadium. So one will owe a duty of care to ‘neighbours’. This duty is to avoid acts and omissions which the event organiser could realistically foresee might cause harm to others. The duty of care does not extend to everyone but it does extend to those who are classified as a ‘neighbour’. The judge in Donoghue –v- Stephenson, Lord Atkin, defined who that neighbour was: “Persons who are…closely and directly affected by my act…” (Crabbe, 2000, pgh. 16). As a bare minimum event organisers and security staff will owe a duty of care to members of the public attending events and to their employees as clearly these people will be affected by the actions of an event organiser. Event organisers may also owe a duty of care to others including sub-contractors, self-employed workers and suppliers. But the duty may extend to those on neighbouring land, trespassers and members of the emergency services. ‘Tort’ is the French word for a wrong. Torts are civil wrongs. Civil wrongs can be contrasted to criminal acts although one action might result in a potential liability for two claims, one civil and one criminal. If D assaults P, D is liable to be prosecuted for assault and criminal sanctions such as fines, community penalties or imprisonment might be applied by the criminal courts. But P can also sue D in the civil courts for trespass to the person and claim damages for the injury and loss he/she has suffered. Negligence is a tort. In the same manner, torts could come into play were people to complain about this new medication slash prescription drug. The Consumer Protection Act basically guarantees that any product that a consumer consumes will be safe for them to consume. Trevor and this Ph.D. student have no idea what they are doing in terms of reassuring that they have adequate protection against the retributions that they could face, if, indeed it is the case that the medication is faulty. Thusly, the copyright alone will not protect Trevor and the Ph.D. student in case the drug does turn out to be faulty. It is simply a matter of judging what should be done in this case. Copyright law aims to protect those who have patented the item—but on the other hand, someone must be at fault if the drug turns out to be faulty. The government should not assume that weighty responsibility unless it wants to take the risk of having class action lawsuits filed against it in the case that the drug either: a) does not indeed work; or b) is faulty in some way, shape, or form. The Consumer Protection Act was basically put in place to protect the consumer. Basically, even though the people who made the product (Trevor and the Ph.D. student) have a copyright on the patent, that does not excuse the pair from being either negligent or having neglected a duty of care. Trevor and the Ph.D. student (and possibly, the person that signed off on the patent) could be in trouble if the drug were presumed to be faulty. Trevor and the student conducted no tests—other than a single trial, with no controls—in order to legitimize the drug’s supposed positive effects. So, in effect, having a copyright on a product does not prevent the public from suing against the maker of the product, in essence. Without a doubt, the Consumer Protection Act would kick in, effectively making Trevor and the Ph.D. student—and anyone else involved in the drug’s approval, including the government—liable for neglect and the lack of a duty of care. BIBLIOGRAPHY Aplin, T. & Davis, J. Intellectual Property Law: Text, Cases, and Materials OUP 2009. Bainbridge D, Cases & Materials on Intellectual Property Law, 5th Rev Edition Longman Pearson 2006. Bainbridge, D. Intellectual Property, 7th Edition, Longman Pearson 2009. Bently, L. & Sherman, B. Intellectual Property Law, 3rd Edition, OUP 2008. Consumer protection act of 1987. (2011). [Online]. Available: . ? Cornish, W and Llewelyn, D Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 6th Rev Ed, Sweet & Maxwell 2007.? Crabbe, Justice V.C.R.A.C. (2000). The role of parliamentary council. [Online]. Available: . Donoghue v. Stevenson (2011). [Online]. 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