Intellectual Property, the Law in the UK - Essay Example

Intellectual Property Table of Contents The Need for Intellectual Rights Protection 5 Intellectual Property in the UK 6 Patents 6 Trademarks 7 Copyrights and Related Rights 8 Geographical Indications 8 Industrial Designs 9 Trade Secrets 10 Layout Design for Integrated Circuits 11 The Protection of New Plant Varieties 11 The UK Law Regarding Intellectual Right’s Ownership 11 Conclusion 14 Bibliography 16 Introduction and Review of the Case Study This report concerns the intellectual property law, which sets the legal rights for individuals as well as organizations to control and manipulate intangible creations and marks. Such creations may range from novels to logos to drug formulae. This work will first describe the need for intellectual property rights protection and its implication on the economy of the UK. The next aspect will be a review of the mechanisms of intellectual property rights protection in the country. The paper will include an analysis of the UK law on property rights protection. The mentioned sections will attempt to elaborate the legal ground that all businesses in the county have concerning their innovations and creativity that involves business ideologies. The preparation of this report gives a solution to Mr. William Lowie, referred to as Mr. L concerning ownership rights for one of his products in the UK market. The report is also in correspondence with the requisitions of the Supervising Solicitor, Hannah Littlemore. The client, Mr. L is the proprietor of a company called WL Ltd based in Weyford. Mr. L, a British citizen set the company up about five years ago; he owns 95 percent of the shares, and his wife the other 5%. Both Mr. L and his wife are full-time employees of WL Limited. The firm specializes in designing and manufacturing quality products for DIYers. The company is small, but thriving, and has grown substantially in terms of turnover and profit over the last few years. Mr. L designed on of his best-selling products called the Lowie Handibelt. The product is a leather belt with holes and pockets for tools, and with a useful attachment that allows a drill to be used without getting it out of the belt. The Handibelt is made by skilled employees in WL Ltd.’s workshops and went on sale about 18 months ago. WL Ltd sells mainly by mail order and through independent DIY shops in the UK. Sales of the Handibelt have been good and have increased steadily since its launch. The product got a particular boost four months ago when it won an award for Best New DIY Product. About a week ago, Mr. L received an e-mail from a friend, Joe Pennington, congratulating him on WL Ltd.’s deal with Whitesfield Plc. that had apparently allowed the Handibelt to go into mass production and to be sold in major DIY chains. Mr. L was puzzled, as he has no deal with Whitesfield, and had never had any contact with them. He has, however, started to receive letters from people claiming to have bought a Handibelt been disappointed by its low quality. Mr. L asked the friend to buy the handibelt that he had seen on sale and send it to him. Whitesfield Plc. makes the belt and markets it under the name “The Original “L” Handy Belt.” At first sight, it looks like a genuine Lowie Handibelt, but on closer inspection, it proves to be of destitute quality. He asked a DIY expert, William Shaw, who is the proprietor of one of the stores WL, usually supplies, to compare the belts and report. Mr. L is angry about what has happened, and worried about the reputation of his business. However, an interview with Miss Hannah Littlemore established that Mr. L had not taken any measures to protect the handibelt on ground that he never thought something like what happened would occur. An analysis of the generic Lowie Handibelt revealed that the Original “L” is very similar in appearance to the Handibelt. However, it has six tool pouches and four tool holes; the Handibelt has seven pouches and five holes. The makers of the Original “L” have tried to reproduce the essential feature of the Handibelt (the drill slot), but have failed. The slot looks the same, but because the makers do not fully understand the design, it will not work correctly. The Original “L” appears to have been designed to create the impression that buyers are buying a genuine Handibelt. However, it is badly designed, poorly manufactured and will never perform to the same level as an authentic Handibelt. As the case unfolds, there is a need for Mr. L to ensure that he understands the law concerning the protection of intellectual rights. The Need for Intellectual Rights Protection The idea for the protection of intellectual property first appeared the 1983 Paris convention that sought to protect industrial properties (Norman 2009, p. 34). In 1986, there was also another conference held in Berne that discussed the need to protect artistic and literary works. In both cases, the world intellectual property organization oversaw the events. There are several reasons that compel the corporate world to have regulatory and protective moves for businesses people and their ideas. The first reason is a consideration that the wellbeing and progress of human beings depend on the capacity to invent and generate new works in the fields of culture and technology. The second reason is the fact that protection of ideas gives an inspiration for researching new methods that will result in even better products that will improve the well-being of humanity. Another reason for intellectual rights protection is the fact that the move spurs the growth of the economy of the nation through the creation of new industries and job opportunities (Law Commission 2014, p. 45). Such a move also improves the quality of human life by making their choice for products in the market wide enough to cater for their needs. The existence of an equitable and efficient intellectual property system can assist a country to recognize the intellectual rights’ capacity. For this case, the latter acts as a probable catalyst for the development of its economy as well as cultural and social wellbeing of its citizens. An intellectual property system ensures that there is a balance struck between the interests of public interest and the innovators in the society. As a result, the balance creates an environment that permits the flourishing of creativity and invention, which benefits a majority of the people. Before analyzing the legal framework for which the intellectual property rights hold in the UK, it is necessary to examine intellectual property rights first. Intellectual Property in the UK Intellectual property relates to the creation of the mind: literary and artistic works; inventions; symbols and names used in trade. The Intellectual property falls into two categories, namely; industrial property and copyrights. Intellectual property rights, on the other hand, are the legal provisions in the law that result from intellectual activities in areas such as industrial, literarily, scientific and artistic works. The right targets to protect the makers and other producers of the intellectual properties through granting them some time-limited control over the use of the rights. It is also necessary to consider that protected intellectual rights are items of trade, which implies that some people may own, sell, or even buy them. As such, such rights are intangible as well as non-exhaustible in terms of usage. Several tools guard the intellectual property rights. For instance, there are patents, trademarks, copyrights and related rights, geographical indications, industrial designs, trade secrets, and layout plans for integrated circuits. In other situations, the protection of new plant variety also falls under the same tools. The subsequent sections of this report will explain each of the tools mentioned above. Patents A patent refers to an exclusive right given to an individual or a firm for an invention for something. For this case, an invention refers to the act of providing a product or a process that result in newer ways of doing something (Law Commission 2013, p. 10). An invention may also give a new technical solution to the way of doing some things. Patents, therefore, provide protection to the owners of the inventions, which in most cases extend to a limited period of 20 years. Patent protection implies that there are no other parties allowed to use, sell, and distribute the invention without informing the patent rights owner. The owner of the patent rights, in this case, has the freedom of choosing who should or should not use the inventions for the entire period for which the contract holds. The owner of the rights, therefore, may decide on the eligibility of the other users of their inventions. In such cases, there is always a mutual agreement that the owner transfers the use of the patents to third party users. Such mutual agreements may entail the selling of the same rights, for which case, the buyer becomes a new patent owner. The protection by patents expires as soon as the period of protection ends. During such times, the invention enters the public domain where people have the freedom of using it (Law Commission 2013, p. 10). All owners of patent rights have the obligation, in return for the protection they receive, to disclose the information concerning their invention to the public in a way that will enrich the community. Such obligations give the entire world a source of an ever-growing knowledge from which more creativity stems. Therefore, patents provide two things to the world. The first benefit of patents is the fact that they provide protection to their owners and the second is that they inspire the world into innovations. Trademarks A trademark refers to that specific symbol, which identifies particular products as being peculiar to a certain enterprise or a specific person. The trademark referred to in the definition may be one word or a combination of the same, the use of letters, as well as numerals. They may also entail symbols, drawings, three-dimensional symbols such as the shapes and packages for products, and audio signs like vocal sounds or music (Law Commission 2013, p. 13). Other elements of a trademark may include the use of colors, or fragrances that form distinguishing elements of a product. Protection of this kind gives the owners of the mentioned elements exclusive ownership and the right to use and identify some products or services or at the same time authorize third parties to use them. Trademarks enable consumers to identify and buy a given product or a service because its quality and nature that the trademark presents appeals to them. The registration of a trademark acts as a prima proof of its ownership, and it grants statutory rights to the owner. There are situations when holders of trademarks do it in perpetuity. For this case, the initial registration and protection lasts the first ten years after which there are timely renewals. Copyrights and Related Rights A copyright refers to the protection granted to the owners and inventors of literary or artistic works. For instance, copyrights cover artistic works such as literary works that include novels, plays, poems, newspapers, reference works, and computer programs (Law Commission 2013, p. 13). Others in the same category may include computer programs, films, databases, musical compositions, as well as choreography. Copyrights may provide protection to the owners of artistic works like paintings, photographs, and sculpture. Drawings, advertisements, technical drawings, and maps works. The use of copyrights subsists in a piece of work by virtue of its creation, which means that it does not require a mandatory registration. However, registration acts as a proof that the copyright subsists a given work and that the creator is the owner of the same work. Creators of literary and artistic works often sell the rights related to their works to companies or individuals that have the best marketing advantage in return for an agreed payment. In most case, the payments made depend on the use of the work in question and for this case, the payments are called royalties. Copyrights last the whole of the creators’ lives and sixty years after the death of the same makers of the protected works. Geographical Indications Geographical indications refer to the signs and other symbols used on products with a particular geographical origin and which have the reputation that relates to their places of origin. Agricultural products are the most common products that have such indications. Their qualities refer to their places of origin, which may include the prevailing climatic conditions, as well as the soil types. Such factors outline individual qualities that a product contains and the subsequent market approval by the customers. The qualities referred to, in this case, may also result from human factors such as the methods of manufacturing, as well as the traditions of the manufacturers. Therefore, a geographical indication of a product relates to the specific place of origin of a product and the subsequent qualities and characteristics attached to the products (Law Commission 2013, p. 15). Geographical indications are necessary in the corporate world because they determine the perception of the buyers of a product regarding the quality of a product. The place of origin may refer to a town, a village, or a country from where the production a product occurs. For this case, protection of this kind refers to the privileges given to a community because of the reputation that a product from their locality creates on the nature of business in the market. Such protection gives pride the particular places of product of origin, which acts as a motivator to the creators to produce goods of better standards than before. Such intrinsic community motivation makes the communities better their cultural identities and improve their quality of life. There exist no laid down principles concerning the duration of the protection related to the geographical indications. Industrial Designs Industrial designs relate to the creativity that gives rise to the formal or ornamental appearance of a product in the market. For this case, design right relates to the novel or authentic deign recorded in relation to the proprietor of a validly registered design. Industrial designs form elements of an intellectual property (Law Commission 2013, p. 15). Protection of this type promotes the design elements of industrial production activities as well as promotion of creativity in the market. Industrial designs act in a more or less similar manner to the trademarks because they affect the identity of the product in the market. There is a need to recognize the fact that the status of that consumers of a product attach to it determines how best the product performs against its substitutes. Protection granted to industrial designs, therefore, ensure that the owners of the registered designs have the exclusive control over its usage. However, there is also a realization that the holders of such rights may also transfer them to third party owners through mutual agreements. Such arrangements may include buying and selling of the rights or joint ownership in the event of a merger. Trade Secrets A trade secret may refer to that confidential information regarding the use of a product that gives a given business a competitive edge over its substitutes in the market. It may also relate to the way a company or individual conducts its business in a way that causes it to have a distinguished appeal to the customers. As much as there are many product substitutes in the market, there is also the realization that some companies own particular competitive aspects peculiar to its products. Therefore, such secrets refer to the industrial, manufacturing, and commercial hidden aspects of production, marketing, and distribution of products of a given business. The difference between trade secrets and patents is the fact that the former exists without the need for registration while the latter holds only after registration. The protection offered in this kind lasts for an unlimited period, but there is a need that all businesses maintain certain elements of secrecy for their methods of trade. Such a move helps in the avoidance of duplication of business ideas and the flooding of the market with products of the same quality. The latter event means that the customers have a wide range of differentiated products that result from the trade secrets of their preferred manufacturers (Law Commission 2013, p. 25). Layout Design for Integrated Circuits This kind protection guards against the originality of circuit designs in integrated chips that use semiconductors. A semiconductor integrated circuit is one that has circuitry elements that may include transistors and other aspects that have their inspirational design from semiconductor material. The protection exists as a way of covering and guarding against the unethical behaviors of duplication. Usually, the protection lasts for the first ten years after the registration date after which there is a need for renewed contracts. During the same period of protection, the owners of such rights hold the exclusive freedom of transfer of their technologies to other parties depending on mutual agreements. The Protection of New Plant Varieties The rationale for such protection is to recognize the function of farmers as conservers of nature and cultivators, as well as their contribution to the wellbeing of the communities. The farmers of the country are caretakers of the biodiversity of the nation, which plays a critical role in the sustainability of life for all Brits. As such, this kind of protection guards the new varieties and species of plants that the framers come up with in the course of their activities. It, therefore, follows from the analysis of the intellectual property rights in the UK that Mr. L’s firm faced challenges related to patents and design. As such, the subsequent sections of this report will deal with the two provisions under the UK law. The UK Law Regarding Intellectual Right’s Ownership The contemporary UK patents issue falls under the jurisdiction of the Patents Act of 1977, which puts the Intellectual Property Office (IPO) under the direct control of such matters (Law Commission 2013, p. 25). The law identifies a patent as a monopoly power that grants commercial exploitation of any form of innovation in return for its disclosure. The protection has limitations to the use of the inventions as described in the specification. The protection contains claims that define the scope of the applicable circumstances under which protection holds. The law also limits the duration of a patent to 20 years from the first date of its application (Law Commission 2013, p. 25). The same law allows four circumstances under which Mr. L may claim patentability. The first is the fact that the invention under consideration should be novel in the idea that it should not from a part of an existent state of the art at the time of its application. Such an idea turns on whether an enabling disclosure that may lead ordinarily skilled people to use the invention happened. For instance, if there were prior explanations of the invention using books for public access. Another condition is the fact that the invention must involve an inventive step. For this case, an invention means an inventive step. The step only holds if it is not obvious to any individual skilled in the art and also have no links with any idea that forms the state of the art. The invention should also have the capability of an industrial application. The law identifies an invention that has industrial use if it may apply under any industry, which includes agriculture. The act also qualifies a patentable claim as one that must not be one excluded by the Act. However, the Patents Act of 1977 does not grant patentability to inventions if they fall into the other categories. For instance, there are no legal patent claims for scientific theories, discoveries, dramatic, artistic, or musical works, as well as computer programs (Law Commission 2013, p. 27). The law regards infringement of the patentable claims of the Patents Act as the action by someone who does something protected by the patents without the holder’s consent. The act of infringement may occur through a principle, an agent, or an employee. If the event that anyone orders the production of products using patent rights belonging to someone else without their consent and claims to have made them commits an infringement. Section 60 of the 1977 Patents Act identifies that there are two types of infringement, namely; direct and indirect infringement (Law Commission 2013, p. 28). Section 60 of the Act defines three categories of direct infringement. The first one holds if the invention is a product where the alleged infringer, disposes of, makes, offers to dispose of, keeps or imports it without consent. The second category of direct infringement happens in the case that the invention is a process. For this case, the infringer uses the procedures or offers its use within the UK without the consent of its patented owner. Lastly, the third category relates to the situation where the invention under question is a process. For the latter case, the alleged infringer imports, disposes of, offers to dispose of, or uses any of the products obtained from infringement acts defined by the Act. The Act applies dispose of as a way of meaning putting a product on the market in the course of trading activities (Law Commission 2013, p. 28). Offering to dispose of does not have the limitation to selling, but may apply to pre-contractual activities that may result in a sale such as advertising and negotiations. The 1977 Act considers an indirect infringement as an act that supplies or offers to supply in the UK, an invention without the consent of the patent holder. The infringer, in this case, deals with activities that put essential elements of an invention into effect. It is necessary to understand that putting on the market for this is the implication of supplying. There are some circumstances when infringement acts would not qualify as being some of them. For instance, if the acts do not exploit any commercial benefits or they are for experimental purposes. The experimental acts purposes play a critical role in striking a balance between innovation and enforcement. An inventor receives a patent for the ultimate interest in the public to scientific and technological inventions in the future. Therefore, claims for infringement do not hold where there is a hindrance to further technological development. The UK first witnessed the full effect of design registration in 1889, though they remained in the forms of copyrights (Law Commission 2013, p. 33). The Copyright, Designs, and Patents Act of 1988 defines the use of product designs in business. Design rights for this case give protection to the overall impression of a given product. The law relates to how something appears and not how it functions. As such, the contemporary law resulted from the copyright law that initially protected literary works before an extension to include printed cottons and linens, as well as a wide variety of manufactured products. There are two UK rights Acts that protect the ownership of product designs. The first one is the UK unregistered Design Right established by section 213 of the 1988 Act. The second is the UK Registered Design Rights established in 1949 and amended in 2001 (Law Commission 2013, p. 28). The UK unregistered Design Right states and grants the rightful ownership of the maker of a design. However, the same law identifies that there are cases when the creator of a given design is an employee or at times, the design results from commissioning. Primary infringement of Act results from the unlicensed use of the designs. For this case, the infringer copies the product design of another inventor, in which case, the latter has protected rights. The other Act defines a design as being the appearance of an entire or a section of a product that emanates from features peculiar to that product. Such factors may include the use of contours colors, lines, shape, materials or the ornamentation of a product. Other factors may include get-up graphic symbols, packaging, and typographic faces (Cornish, Llewelyn & Aplin 2013, p. 45). Conclusion Mr. L has two justifiable claims according to the law in the UK. The first concerns the use of patent rights while the second concerns product designs. The rationale for such claims is the fact that someone else used his innovation to make products that appeared like his original Lowie Handibelt. The appearance of the generic belt indicates that there were similarities in design, which also points at attempted duplication of his innovation. However, there is a need to consider some elements of the case concerning the intellectual property law of the UK. The first is that the protection that the above-discussed rights grant depends upon registration steps. Mr. L admitted that he was innocent about the application of the same laws, which could disqualify his infringement claims. Another considerable aspect is that generic handibelt does not have all aspects of original product, and could challenge the fact that it is not a duplication of inventions, but an improvement. Bibliography Cornish, W., Llewelyn, G. I. D., & Aplin, T 2013, Intellectual Property: Patents, Copyright, Trade Marks, & Allied Rights, Palgrave. London. Law Commission 2013, July, Consultation Paper No 212: Patents, Trade Marks and Design Rights: Groundless Threats, retrieved April 5, 2015 from http://lawcommission.justice.gov.uk/docs/cp212_patents_groundless_threats.pdf Law Commission 2014, Patents, Trade Marks and Design Rights: Groundless Threats, retrieved April 5, 2015 from http://lawcommission.justice.gov.uk/docs/lc346_patents_groundless_threats.pdf Norman, H. E 2009, Intellectual property law. Oxford, Oxford University Press. Read More