Intellectual Property Damages Guidelines and Analysis - Case Study Example

Intellectual Property and Tort: The term intellectual property came into existence in the 19th century, and it denotes the innovations of the mind. These are creations and inventions of a person which are recognized on a legal perspective. Owners of these innovations enjoy certain exclusive rights to the intangible assets that arise out of the innovations. Examples of intangible assets include the literature developments of a person, musical and artistic works, phrases, symbols and certain unique words (Glick et al, 8). The law identifies the following as the types of intellectual property rights; trademarks, patents, copyrights, rights emanating from industrial design and secrets of trade. In 1967, the United Nations, realizing the importance of protecting the unique ideas of people, formed the World Intellectual Property Organization (Glick et al, 21). The treaty recognized the importance of intellectual ideas in promoting the development of the economy of a state, and therefore it was essential to initiate laws meant to protect the intellectual properties. Another objective of the World Intellectual Properties Treaty was to negotiate for laws that will enable inventors of the idea an economic and moral advantage over the usage of the property Glick et al, 43). These laws will also regulate the use of the property by the public, and their access to it. Another objective of the treaty was to create measures of encouraging creativity, and the applications of the results emanating from the creative mind. This was aimed at advancing economic and social development. The notion of intellectual property found it ways in the American Court system in 1845, at the Massachusetts circuit courts. Judge Charles Woodbury presided over a case involving Davoll et al vs. Brown. From the court system, the judge denoted that unique intellectual ideas belong to the creator, just as wheat, and animals belong to the farmer. In 1980, the United States Federal government enacted the Bayh-Dole act. Two senators, Birch Bay and Bob Dole sponsored the bill (Glick et al, 31). The main objective of the bill was to protect intellectual properties emanating from government funded research. Laws on intellectual property fall under the laws of Tort. Torts deal with undesirable results that emanate from the actions and behavior of another person. Tort is a civil case, and therefore breaching any laws that regulate the use of intellectual properties fall under the category of civil cases. A person, who sues an offender under Tort, is entitled to receive compensation from the offender. This is only after the courts analyzes the behavior and judges on whether there was a breach of the intellectual property law. This paper identifies the different ways and mechanisms of solving cases that emanate from the use of another person’s intellectual property, without authorization (Glick et al, 21). It emphasizes, and identifies the various laws and the legal procedures of solving cases that emanate from a breach of the intellectual property laws. This paper gives the various examples of intellectual properties, and their creators. It also identifies the various intellectual property case laws, and how the American court system solved the cases. It has a conclusion, which is a summary of the main arguments of the paper. This paper takes a stand that the best way to solve cases emanating from a breach of intellectual properties, is by developing laws that will protect the use and access of the intellectual property. To solve societal problems that emanate from a breach of intellectual properties, it is important to know the different types of intellectual properties in United States of America. The United States of America recognizes the following as examples of intellectual properties (Glick et al, 13), 1. Patents: A patent refers to the acquisition of all rights of an intellectual mind, by the inventor. The inventor has the right of controlling the usage and access of his inventions. The United States Patent and Trade Mark office is responsible for enforcing laws emanating from the abuse of the patent rights of a person, and it identifies computer hardware’s, and software’s as examples of objects that are protected by patent laws. The Patent and Trademark office is responsible for issuing patents, and the rights exist for a period of 20 years. The invention must be original, for an applicant to get the Patent certificate. 2. Trade Marks: Trademarks are symbols, words, names or combination of these elements, used for purposes of trade. They are used to distinguish the products of one trade to another. Corporate brands and business logos fall under this category. 3. Copyrights: These are meant to protect disputes that emanate from un-authorized use of an author’s original literature. The United States copyright of 1976 protects against un-authorized use of a person’s original literature that is expressed in a tangible form. This includes novels, plays, poems and music. The protection last for a period of 70 years. 4. Trade Secrets: This are classified information that a company uses for purposes of advancing its commercial interests. For information to qualify as a trade secret, it must give the owners of a company, competitive advantage over its competitors. The information must be unique, and patented. The management of an organization must also ensure that there are measures put in place to protect the information from disclosure. Examples of trade secrets are, computer aided software, and any other products that is related to these software. Using a person’s intellectual property without their knowledge and permission is an offense under the law of torts. This is because using these properties without permission can result to an economic and social loss of an individual. To mitigate on this, there are various laws that the United States Federal Government has initiated to protect the unauthorized usage of an individual’s intellectual property. One of the laws is the Bayh-Dole Act of 1980 (Glick et al, 61). The act is a legislation that regulates the usage of intellectual property that emanates from the discoveries of research funded by the American Federal Government. The act allows small United States business organizations, non-governmental organizations, and United States institutions of higher learning, an exclusive control of the intellectual property developed as a result of the Federal Government funding, and support. These institutions must meet the following requirements; they must report the nature of the invention to the funding agency, promote and commercialize the invention, enact measures to register the invention as a patent, and to allow the Federal Government exclusive use of the invention. The Stanford vs. Roche (2011) is an example of a case law that the Supreme Court used to solve a dispute emanating from the breach of the Bayh-Dole act of 1980. In the case, the Supreme Court was of the opinion that the intellectual right of an invention lies first with the researcher or the scientist who made the invention, and not the funding institution (Glick et al et al, 27). This right does not change, even if the inventor is a researcher, and is publicly funded by the Federal government under the Bayh-Dole act of 1980. The Patent act of 1922 is a law that gives information on how to registers for patents in United States of America. The main purpose of this law is to stimulate private innovations and inventions for purposes of encouraging the growth of the American economy. The law allowed the Court of Customs and Patent appeals to solve conflicts that emanate from unfair import trade practices. The law allowed the commissioner of patents to demand for specific qualifications, before an individual got registration as a patent agent, or attorney. This law helped to solve problems of inconsistencies arising from the applications of patents. This is because qualified and well informed people were allowed to act as agents and attorneys before the Patents Office. Another law that regulates the use of intellectual properties in United States of America is the Digital Millennium Copyright Act. The act discourages the production, and distribution of services and technological devices whose main objective is to control the access of a copyrighted work (Glick et al, 35). The law introduces tough penalties for infringing the intellectual properties found on the internet. The law minimizes the liabilities of internet service providers, in cases where their users have breached the law. An example of how the courts solved a case involving the breach of this law is the case law between 321 studios vs. Metro Goldwyn Mayer. The 321 studio, sought an interpretation from the courts involving the use of their DVD ripping product. In their opinion, the technological device did not violate the provisions of the digital millennium copyright act. The studio also sought a declaration from the courts that the distribution and sale of the DVD product did not infringe upon the copyright act, because the usage of this invention has a non-infringing element (Glick et al, 26). The studio challenged the court, by denoting that incase the court prevents them from using the software; it would violate the provisions of the first amendment, making the judgment unconstitutional. The court rejected the views of 321 studios, and issued an injunction against the use of the software. The court held that using the software would violate the Millennium Copyright Act, and the act was not unconstitutional. Critiques of intellectual property argue that the current intellectual property laws do not adequately protect indigenous united starts innovations. Indigenous people have extensive knowledge and ideas that can help scientists develop new devices or objects. For example, they may have knowledge about certain plants and their medicinal elements, and scientists might need such information to develop a vaccine, or a medicine (Glick et al, 19). This kind of knowledge will also minimize the costs of doing research, and therefore beneficial to researchers, and institutions that fund these research. On this note, it is important for the Federal government to develop intellectual property laws that will define indigenous knowledge. These laws must protect such kind of knowledge, and this will minimize conflicts that arise between scientists and indigenous people because of inappropriately using their knowledge. In conclusion, intellectual property law is an important instrument of fighting intellectual theft. Consider for example, if there were no laws regulating the usage of innovative ideas and inventions. People would take advantage of this situation, and use other people’s ideas to advance their own economic and social agendas. Inventors will work hard to create an invention; others will wait for the invention, and use them at the expense of the inventors. Intellectual property laws prevent and mitigates on conflicts that arise out of circumstance of this nature. The laws also have an effect of stimulating the economic growth of a nation. This is by placing an economic value on the usage of the property, and advocating for the commercialization of the invention, or the idea. Works Cited: Glick, Mark A., Lara A. Reymann, and Richard R. Hoffman. Intellectual property damages guidelines and analysis. Hoboken, N.J.: Wiley, 2003. Print. Top of Form Bottom of Form Read More