Intellectual Property Law - Essay Example

?Part One Copyrights in England is administered under the Copyright, Designs and Patents Act whereby section 1) describes a copyright as a propertyright which subsists in accordance with the relevant part of the Act. The description of the work may be original mythical, musical and much more; it may include typographical arrangement of printed copies. Under the provisions of Section 1 (1) 1988 CPDA, a copyright must satisfy certain requirements which is fixation and originality which refers to the quality of the work (Levitt 2005, p.45). Following the presentation of the case between Dicky, Smythe and Dickinson, and Reginald, several issues must be established before looking into the aspect of copyright between Dicky and Smythe and Dickinson, his employer business premises. In order to give Dicky proper legal advice, it would be in order to understand the exact terms and conditions that his employment or engagement with Smythe and Dickinson stated. The importance of this contractual agreement would be to know if Dicky’s terms of employment terms provision spelled out agreements on whether the company was either the sole owner or joint owner of any work produced in course of employment (Sumpter 2006, p.77).. This is because section 11 of the Copyright, Designs and Patents Act states the criteria for ascertaining the ownership of any copyright material and provides that any work produced in the course of employment belong to the employer who is deemed as the first owner. In the event that there are no such terms or regulations, Dicky will be perfectly be in a right position to fully own the work. Under the copyright laws in England, there are certain qualifications that one has to fulfil before they are fully covered or protected by the law on copyright. First, a person must be a citizen of Britain based on the qualifications that are set by the British Nationality Act 1981 (Ross 2008, p.46). The other requirement is originality, it has to be ascertained that without doubt the work (Valuation Guidelnes) was his (Dicky’s) own expression of ideas and invention to be the first owner under Copyright, Designs and Patents Act S.11(1). This is of interest, as it will help in understanding the actual position of the nature of the legal position from which the company is claiming rights. Dicky can argue that the company has no copyrights over any of his productions when he undertakes it independently even if employed by Smythe and Dickinson. The other requirement to gain copyright is fixation, as was held in the Merchandising Corp v Harpbond (1983), for instance the work has to be in a material form of which the valuation guidelines are in print and Dicky’s Antiques is in a DVD. Having ascertained Dickys terms of employment, citizenship, fixation and originality such that the Valuation Guidelines were his creative creation work; Dicky should understand the rights that a copyright holder have in relation to that particular original idea, which is automatic in UK upon meeting copyright requirements. Section 16 of the Copyright, Designs and Patents Act gives the copyright holder the right to copy the work and issue it to the public as well as broadcasting the work in a cable service program (McCombs 2011, p.21). All copyrighted material must possess originality as proposed in the case of University of London Press v University Tutorial Press (1916) 2 CH 601. This case discussed the doctrine known as sweat of the brow doctrine and if the word “original” is taken to refer to the originality of an expression for a certain piece of work to gain copyright protection (Harms 2008, p.133). The concept of originality tries to evaluate the relationship between the author of a particular piece of work and his work and is essential for a piece of work to gain copyright protection in England. This is expressly provided for under Section 1(1) of the Copyright, Designs and Patents Act 1988, s.1(1) and involves judicial reasoning and logic in the solution of cases. In order for Dicky to succeed in his defence, he must prove to the court that he exercised his requisite intellectual qualities to come up with the new program. The test here will be whether there was sufficient labour, skill and effort expended by Dicky in coming up with the work, the above-mentioned judgment can be used to buttress Dicky’s argument about the originality of an idea. However, in case Smythe and Dickinson had obtained copyright of the work, the question that the court then asks itself about is how much an infringement is through questioning the quality or quantity aspect of the originality. The courts have previously held that the question as to whether a party has copied a substantial part of an item depends on the quality the quantity of the work copied as was held in Ladbroke v William Hill (1964) 1 WLR 273. Dicky, following this corroboration understanding there were no limiting provisions in the employment contract should maintain the originality of the publication since the company wanted to take economic advantage on efforts that were not theirs and file for Injunctive Relief. This is because even if the company files a suit against Dicky, they will lack the crucial evidence to make it beyond reasonable doubt that the publication was theirs and that they had the originality to its authorship (Matulionyte 2011, p.93). Moreover, for a claim of copying to stand, the offended party in this case the company must show a causal link between the copied work and the original one as was espoused in Francis Day & Hunter v Bron (1963) Ch 587. For instance, the company will be put to task to explain that there was sufficient objective similarity between Dicky’s show, Book and the DVD and his previous undertaking with the company to produce the valuation guidelines. In Francis Day & Hunter v Bron case, the court stated that in order to establish liability on the part of a party in terms of copying subconsciously, it must be shown to the court that the composer of the offending material was familiar with the alleged work that has been copied. This is because of the rights associated with copyright, as the holder has the right to be accredited for the work. He may also perform the work for financial benefit and decide whom and how the work can be adapted. In this relation, he will have the option to allow legally the firm to adopt his work through his authorization if they are interested that the firm should be associated with the publication (Sterling 2009, p.53). In addition, Dicky should be cautious on how his creative work can be used by other people in pretence and allowing other people to adopt the work, they will have to remain within the agreement scope such that the legal owner of the work is not arbitrarily transferred to another person (Norman 2011, p.61). Therefore, if the work is not copyrighted and Dicky is certain to be the inventor of the Valuation Guidelines and employment contract was silent on content produced in course of employment, he should under copyright law seek a patent approval as fast as possible. This is because without copyright, the claim of ownership can easily change from him, as Reginald could easily patent the Valuation Guidelines under the name of the organization and this would complicate matters for Dicky to claim ownership. This is because for copyright infringement cases over intellectual property to succeed, the first important thing to do is patenting the work to attain legal ownership (Murdie 2010, p.56). However, in case the employment contract spelt out the terms of claiming joint or sole ownership of works produced in course of employment then Dicky will have infringed copyright laws by exercising commercial rights on the Valuation Guidelines in his book and the DVD production if it amounts to a substantial part copied. Therefore, he is liable to remedy the company accordingly as before he copied the Valuation Guidelines, he should have consulted with the company before using them in his book and DVD. Part Two The 1977 Patents Act does not give a definite definition of the term patents as used in the legal field, but gives the requisite criteria for the determination of the patentability of a particular product. These three requirements for the patentability of a product include the fact that the product must have an aspect known as novelty, inventive step, and industrial application. Novelty as established under section 1(1) (a) of the 1977 Patents Act questions whether the product is part of the prior art or the state of the art itself (Sterling 2009, p.19). In order to establish the novelty of a product, it is important to establish the state of the art of the product and the contours that support the invention claimed by a particular person, it is also important that the courts make a comparison between the state of the art to the invention itself. Under this, there is often the problem of establishing what is referred to as ‘state of the art’, section 2 (2)-2(4) of the 1977 Patents Act provides that all matters or patents must be made known to the public inclusive of those that are still pending. Under the previous law governing patents in the United Kingdom before the 1977 Patents Act, it was required that persons intending to patent a product must also disclose their time and geographical limits while for international patents, it was a requirement that the translation requirements are followed and applied to the letter (Henning 2009: p. 36). However, there are exceptions to this rule in that the product cannot be patented if there is a breach of confidence for a period not exceeding six months or in the case of international exhibitions. Public disclosure of the product is sufficiently addressed in the cases of Humpherson v Sayer (1877) and Monsanto’s application (1971) which emphasized that the public disclosure of the patent must be in a manner that makes it available to the public. The disclosure of the patent must also be sufficiently clear to everyone as the learned courts held in the case of General Tire v Firestone (1972) (Kluwer 2010, p.91). It is also important to note that the disclosure of the patent must be sufficiently appreciated by all those concerned as the court held in Merrell Dow pharmaceuticals v HN Norton (1996). The court stated that if the procedure which ends up producing the substance are part of the state of the art, so is the substance made by the procedure. Further, there must be a distinction drawn between the disclosure of a product and the disclosure for use as made in the well-thought ruling in Mobil/Friction Reducing Additive (1990) (Halpern and Craig 2011, p.84). In comparing the invention to the state of the art, it is important to discover the prior and interpret it through the eyes of a hypothetical technician as well as compare the invention with others as was espoused in the case of Marine Windsurfing International v Tabur Marine (1985). Thereafter, there may be interpretation of the prior art through a person skilled in the art of the particular patent and this may be through a team as was held in General Tyre v Firestone (1972) (Flanagan 2010, p.71). The requirement of Inventive Step for patentability is provided under Section 3 of the 1977 Patents Act as well as the state of the art provisions provided under Section 2 (2) of the same Act (Dutfield and Uma 2008, p.57). It does not include patents pending but incorporates the obviousness test in as provided by the Cripps Test which finds out whether it was practical for all purposes to any skilled chemist with chemical knowledge at the date of the patent that he could manufacture a valuable drug, restated in Sharp & Dohme v Boots Pure Drug Co Ltd (1928). The hypothetical skilled technician test is the most difficult to satisfy as was held in Beloit Canada v Valmet Oy (1986) where the court stated that what should be asked is whether a reasonable man on whom patent law should apply would in general knowledge have come up without any difficulty to the solution brought forward by the patent. The test for Inventiveness was laid down in Windsurfing International v Tabur Marine (Great Britain) Ltd (1985) where the learned judge Oliver stated that those involved in patenting must identify the inventive concept whereby the judge assumes himself the normally skilled. However, uninspired person with abilities in the art and ascribe to himself the common knowledge in the art at the date that is of priority. It is also important that any differences are identified between the invention and the matter that is claimed to be already known whereby it is questioned whether the differences are so obvious to anyone skilled in the art or whether they would have required an invention. Under Industrial Application, the important factor is to find out whether the ideas came before their time, or that the patented product was used or made in the industry as stated in Section 4(1) of the 1977 Patents Act (Landes and Richard 2006, p.34). This is regardless of whether the product was made for profit or gain but excludes personal or private activities and determines the usefulness or utility of the product and its technical effect. Nonetheless, there is some statutory exclusion to the patenting such as a discoveries, scientific theories, or mathematical method. The exclusion also includes a literarily work, drama, music, or artistic impressions or those creations that improves aesthetic value as well as a schemes, they also includes guidelines and ways of doing performances that relates to mental act, game playing, or a computer program. Section 1(2) (a) provides an exception to patents on scientific, discovery theory or mathematical methods as held in Genentech Inc’s patent (1987) RPC 553 & (1989) RPC 14 , the learned judge Dillon LJ held that in so far as a patent claims as an invention, the practical application of a discovery theory (Feldman 2012, p.41). The patent has no relationship only to the discovery as such, even if the practical application may only be obvious if the discovery has been made. Patent requirement also touches on the issues of non-obviousness, this is determined if the product that is to be patented does not borrow for those of the previous processes or products. The previous processes and products are in this regard referred to as ‘prior art’ (Durham 2007, p.48). If the processes or the products fail to borrow from the prior art, it qualifies to be a novel, unfortunately, this is not the only qualification for an invention to be patentable, it must not only fail to be a prior art, it also has to be that which is non-obvious improvement from the prior art. This determination is made by assessing the invention to be patented if it would be obvious for one to construe that the same principle is found in the ‘prior arts’, the invention should not be related to those of the previous inventions. It is important to note that one of the most difficult requirements to prove in patenting is the non-obviousness of the invention; this is done through the determination of all those prior invention to which the new one is related and comparing them for similarities. If similarities are found to be appearing with the previous ones, it will be rejected as not having satisfied the standards of non-obviousness of the invention (Branson 2009, p.22). In this regard, there are some changes that even if they are done to some of the known products, they cannot be patentable, these includes the act of substituting one product for the other in an invention or changing the size of the products. The two changes are not eligible for patenting since they do not pass the test of non-obviousness. Non-obviousness in this regard can only be achieved if the comparison of the invention with the past related ones do not show significant similarities in terms of principles and facts. Finally, in a patent, there is the consideration of the invention usefulness; this requirement wants that any new requirement that is claimed to have been invented must demonstrate that they are useful, this is in the sense that they have to be operative. The cooperativeness in this case requires that the invention be able to accurate perform the intended purpose, without satisfying this condition, an invention will not be patented given that fact that it will play no role in any area of concern. Patent can only be granted to those inventions that shows capacity and ability to drive change in given sectors, if a machine is unable to operate, even if it passes all other requirements of patent, there will be no reason for it to be patented hence it will not be given that rights to be patented (Bouchoux 2009, p.34). In testing the operation of the machines, most of the exercise is done using computer and the contemporary electronic technology. For the purpose of ensuring that the innovation that are patented are original and are able to give real change in how things are done, they are subjected to the conditions upon which is they satisfy, they are given go ahead. References Bouchoux, D.E., 2009. Patent law for paralegals. 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