Intellectual Property Rights - ABC Corporation - Case Study Example

Name Professor Course Date Intellectual Property Rights Introduction ABC Corporation is a Global producer of a commercial Product known as J-KIT. Due to technological revolutions and innovations in technology and cell phone companies, ABC Corporation is planning to invent a unique solar power smartphone. The high demand of smartphones with exceptional features is a driving force for the ABC firm. However, before the company commences its invention, it has to ensure that it acquires complete updates on legal Strategic Intellectual Property (IP) Management from relevant sources. Additionally, having complete information and the problems per strategic intellectual property is of paramount importance to the firm. ABC interests are on domestic and international laws governing trademarks, patents, copyrights and trade secrets. Since the solar power smartphone would be an entirely new brand idea, the company should ensure that it acquires a full protection of its’ Proprietary assets. Furthermore, the company should carefully specify their trade partners for the success of its projects. In this scenario, ABC Company trusts Japan as its trading company. Below are a full description and legal update of each intellectual property that the ABC Enterprise would consider. Patents Patents are the rights offered by a sovereign state to the owner of an invention. Patents act to prevent other companies from using, creating, selling or importing an individual's idea without their permission (Holland, Catherine 65). ABC solar smartphone design must fulfill some conditions for it to be patentable. Primarily, Solar smartphone invention must be an exclusively new procedure not known anywhere in the world. Therefore, the ABC Corporation management must be careful in keeping the design secrets until patent rights are satisfactory. However, if there is a need for disclosure to other partners, then the ABC operation should consider drawing up a non-disclosure agreement (Holland, Catherine, 103-110). Secondly, the solar smartphone invention stages should be an improvement to the already existing processes. If the improvement is new yet obvious in the technology and smartphone industry, then the patent right application may fail (Holland, Catherine 123-127). Besides, the invention of the smartphone must be beneficial and solve problems in the smartphone industry. Likewise, the design must not compromise humanity. Apart from preventing other companies from using you invention, patents application allows a company to obtain commercial returns from selling or licensing the invention to a third party. Conflicting views regarding the patent system is rampant in technological and smartphone industry. Since a patent is a right provided to a holder for full disclosure of information, competitors may access them via the internet (Holland, Catherine 155-170). Additionally, after a period of twenty years, any company or individual can freely use the invention without any restrictions or paying any fee. Conflicts on the patent rights application process have made it difficult for companies to obtain such rights. The procedures involved are very lengthy and require a lot of time. Likewise, patent rights acquisition involves many costly processes, which may surpass the financial gains from the rights. A company has to pay annual fees for validation of the rights by the governing bodies; further costs result from filing patents to other countries. In infringement events, a company has to take actions against the infringement; such cases add up to the total costs of patents. Regulations in the U.S Section eight of Article 1 of the United States Constitution contains the patent rights laws (Holland, Catherine 67-69). The clause grants the Congress the power to offer patent rights to inventors like ABC Corporation. The 2012 enactment of the patent treaty of Geneva Act of The Hague Agreement leads to Noticeable changes in filing date requirements and restoration of patent rights. In the United States, patents offer an investor the exclusive rights of preventing others from making, consuming, selling or importing their invention into the United States Under the present U.S laws and regulations, patents last for twenty years from the initial earliest filing date, however, they may extend it through Patent Term Extension or Patent Term Adjustments. Nevertheless, for claims filed earlier than June 8, 1995, its term is twenty years from earliest requested date or seventeen years from the issue dates (Holland, Catherine 71-74). ABC corporation invention must fulfill three classes of conditions (Holland, Catherine 77-82). The management should adhere to the application, applicant and invention requirements. Holland, Catherine suggested that for the invention, the U.S. laws necessitates that the invention must not be obvious, be useful and novel (104-108). Novelty defines that the invention must never deprive the citizens of its rights. June 2000 the Patent Law Treaty enabled the harmonization of the patent application. Currently, besides, applications of ABC have on obligation to the enablement requirement, which ensures that investments that develop usable devices receive licenses (Holland, Catherine 91). Thirdly, applicants for licenses have to possess the inventorship requirement. Under the present laws, everybody that backed the formation of at least one claim in the ABC invention is named in the patent as an investor (Holland, Catherine 99). Moreover, disclosure of the best mode is fundamental. The U.S. patent regulations also impose the duty of Candor and good faith to applicants. The patent legislative body requires applicant’s diligent pursuit of their patents. Failure to pursue may result in losing the investor’s rights (Holland, Catherine 129-139). The U.S. laws necessitate that any company that is seeking a patent must follow the patent process. It includes; the Planning of the Invention Disclosure, drafting of the application, filing Strategies, the prosecution process, refilling or appeal. Finally, appeal to courts of appeal for the federal circuit and post allowance process follow (Holland, Catherine 142-147). Since the ABC plans to collaborate internationally with Japan, learning the Japanese patent regulations would be significant. The Japanese patent systems allow applicants to concede examinations for seven years, and the review request is precise (Holland, Catherine 149-155). Japanese analysis systems are similar with that of the U.S in a number of ways. In both examinations is for utility, non-obviousness, novelty and a complete description. When the test is satisfactory, the occurrence of a post- examination, publication commences. In case of oppositions, the Tokyo High Court does the appeal. Copyright Copyrights refer to the exclusive legislative right that the laws of a particular country grant an inventor to use and distribute their inventions for a limited period. Such rights enable a designer to obtain rewards and compensations for their intellectual hard work (Holland, Catherine 214-217). However, the copyright does not offer total control of an inventors work since they contain some drawbacks. Although the international copyright agreement standardizes copyright laws, most countries copyright laws have unique features and characteristics. Copyrights continue to experience some limitations. For instance, the changing technology causes changes in the digital technology and variations in the domestic copyright legislation for compliance with the TRIPS- agreement on trade-related aspects of intellectual property rights. Moreover, technological innovations bring difficulties in enacting anti-circumvention rules in accordance with the WIPO copyright treaty (Holland, Catherine 222-230). There is a fear that the changing technology may undermine copyright laws, which takes a long time before amendment hence deflating creativity. Since copyrights are legally certified monopolies, competition in markets is minimal as they interfere with free competitive markets. The Antitrust in the U.S. covers such concerns while the anti-monopoly covers the interest in Japan. International legal instruments have also contributed to the limitations of copyrights. The treaties harmonize the exclusive rights that copyrights were to cover. For example, the Berne three-step test hinders the copyright exceptions that a country can enact (Holland, Catherine 222-240). Likewise, there are very few requirements for international treaties. Berne Convention agreement provides limited rights to quote from copyrighted works. Because of such imbalances, WIPO adopted the Development agenda that would help in solving the inequality. In addition, the national law also affects the copyright systems. Copyrights Regulations in U.S The federal statute commonly referred to Copyright Act of 1976 governs the copyright laws in the United States. For the ABC Corporation to register its copyrights, it must make an effort of visiting the copyrights office situated in the library of congress (Holland, Catherine 222-230). Under the current United States, Copyright Act, obtaining copyright protection requires a number of conditions. For the solar smartphone to acquire security, it must fulfill the original requirement, however, the extent of originality requirement is minimal. An example in the compilations and databases case, the court, rejected the sweat of brow doctrine since it largely based on the efforts used in the collection. The Supreme Court instead suggested an arranged and selected principle in databases and compilations. Likewise, the Congress uses the works of authorship to protect mobile devices apps and web pages. Furthermore, for the protection of any work or invention fixation is necessary. In 2013, the United States through the Department of Commerce's Internet Plan Task issued a Green Paper on creativity, copyright policy, and inventions in the digital economy (Holland, Catherine 222-230). The green paper is of significance as it encourages public input on economic and job creation. The United States copyrights law also clearly defines that unfixed works, ideas titles and copyrights laws cannot protect short phrases. Bit law further expounds on the ownership of copyrights; it explains that the creator of an invention is the ideal owner of the rights. ABC corporation international partner is Japan. It is significant that the organization accommodates the copyright laws in that country. Trademarks Trademarks are detectable designs, signs, and expressions. Trademarks serve a significant purpose; it identifies and distinguishes a company’s products and services from those of other companies (Holland, Catherine 24). Trademark owners are business corporations like the ABC, individuals or legal entities. Packages, labels, voucher and company’s buildings may have trademarks. The ownership of trademarks will enable the ABC Corporation to obtain claim and unique properties of the solar power smartphone. However, if the corporation abuses the use of trademarks through false advertising, it may experience legal punishment (Holland, Catherine 25-50). Trademarks also facilitate transmissions of correct information to consumers. The Lanham Act of 1946 still acts as the statute for protecting trademarks against confusing the customers. Brand piracy is the illegal use of trademarks by producing counterfeit services and consumer products. There are several reports on infringement of trademarks; in such cases, the owner of the mark can pursue legal actions against the trademark infringer (Holland, Catherine, 51-55). In the United States, the ordinary laws trademark rights serve to protect unregistered trademarks already in use. However, ABC should consider obtaining registered trademarks as opposed to unregistered marks. Registered offers more legal protection than unregistered. Trademarks enhance the efficiency of a Corporation. However, it has several limitations (Holland, Catherine 60-77). Non-use of trademarks for over three years leads to the presumption of abandonment. Moreover, deferrals in taking actions against infringement weaken a claim for breach. Trademarks also contain the geographical, functionality, import and fair use limitations. Under geographical limitations, trademark laws are always limited to a certain areas or countries. For example in the European trademark union, those trademarks registered with the Harmonization Office of internal markets apply to all Union (Holland, Catherine 58-64). Nonetheless, in the United States, those trademarks registered in the U.S. are only enforceable in U.S. Goods are often sold at different prices and diverse packaging. In the United States, an owner is unable to block parallel imports because importation might occur without the knowledge of the trademark owner in a particular country (Holland, Catherine 55-64). Fair use laws also apply to trademarks; therefore, a trademark holder can be unable to enforce their rights. Trademarked goods and services lie under Functionality limitations. The limitation is necessary as it discourages the use of trademarks to pursue competitors. Trademarks Regulations in U.S Trademark laws and regulations are in several sections. The first section gives a description of devices that can serve as trademarks. ABC can utilize devices such as logos, pictures, slogans, solar, smartphone shapes, sounds and letters as its trademark. Secondly, the Madrid Protocol treaty would be of importance to the ABC Company (Holland, Catherine 58 64). Since it is a filling treaty, it provides an efficient and cost effective ways for trademark possessors in protecting their marks in several countries like Japan through a single filling application. The Madrid Protocol treaty also helps in the simplification of subsequent assessments of the mark (Holland, Catherine 58- 64). Additionally the U.S. Bit laws and regulations have a section on the strength of marks. Distinctive marks serve the purpose of trademarks. Common law trademarks state that if its brand name sells a product then trademark rights occur. Therefore, the ABC firm advice would be to use the solar smartphone name to acquire trademark rights. Trade Secrets These are processes, designs, formulas, information or commercial methods that the public has no idea about, and by which investors and business obtain economic returns and advantages over consumers or competitors. Trade secret holders are subjects of maintaining the secrecy (Holland, Catherine 197). Some jurisdictions refer trade secrets as confidential information. According to Article 39 of the TRIPS Agreement in, trade secrets are unknown to the public, has economic benefits on the holder, and a subject of efforts to uphold secrecy (Holland, Catherine 202-207). The definition is in accordance with the Title 18 of the United States code in the united trade secret Act. Trade owner should seek to ensure that their secrets do not leak to potential competitors by implementing legal and technological security measures. ABC Corporation can issue legal protection agreements like the Non-compete clause and Non-disclosure agreements (Holland, Catherine 204-207). The objective is attainable through signing agreements with their employees not to reveal any of the company’s valuable secrets. Moreover, employees can surrender their intellectual work produced during the employment period. The breach of such agreements may result in substantial financial consequences. From studies, there are conflicts on the use of trade secrets by technological and smartphone companies. Companies always use the reverse engineering and industrial espionage methods in trying to discover another company’s trade secrets (Holland, Catherine 205-210). Industrial espionage is among the illegal rights under several governing regulations. Industrial espionage leads to the enactment of the 1996 Act on Economic Espionage. Therefore, if trade secret holders acquire those rights through illegal means, then they pay the legal liability for obtaining it unlawfully. Trade secrets Regulations in U.S Unlike patent rights, which apply to all states, trade secrets differ per state. Kewanee Oil Corporation versus Bicron Corp case favored states to have their trade secrets. Regardless of statutes a court enacts, all trade secrets afford significant protection (Holland, Catherine 170-190). In case of violation of trade secrets, courts necessitate that trade secret holders give out information on the economic value derived, secrecy measures taken and the data not readily ascertained. Internationally, trade secrets have some regulations; Commonwealth common-law statutes confidently address trade secrets as an equitable right but not a property right. However, Hong Kong indicates trade secrets as property rights (Holland, Catherine 201-207). In English laws, the England and Wales Court of Appeal maintained that the breach of confidence is in the code of good faith. The courts used the Campbell Engineering Ltd versus Saltman Engineering Ltd. Conclusion Trade and commerce should put greater emphasizes on the management of intellectual property rights. The diverse forms of IPR demand dissimilar strategies in terms of treatment, planning, handling, planning and the engagements of individuals with various capabilities. Depending on areas of specialty, companies must choose its IP policies and respective management styles. The possibility of IPR being invalid is high; corporations should use anti-trust laws. Such rules help in avoiding illegitimate monopolies. Work Cited Holland, Catherine J. Intellectual Property: Patents, Trademarks, Copyrights, Trade Secrets. Irvine, CA: Entrepreneur Press, 2007. Print. Read More