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Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business MCOM Sem 2 Delhi University : Intellectual Property is a broad category of law concerning the rights of the owners of intangible products of invention or creativity. For example, IP law grants exclusive rights to certain owners of artistic works, technological inventions, and symbols or designs. Subcategories of IP law include patent, copyright, trademark, and trade secrets. IP lawyers work in litigation, licensing, technology transfer, venture capital, IP asset management, and trademark and patent prosecution. IP is a rapidly expanding field that offers increasing job opportunities to lawyers. In 1985, 32% of the market value of S&P 500 companies was based on intangible assets, mostly some form of intellectual property.

In 2005, these assets represented almost 80% of the same companies’ market value.1 IP, therefore, plays an increasingly important role in business; correspondingly, its regulation and study has an ever-larger place in government, nonprofits, and academia. There are numerous sub-specialties of IP law, including patent, copyright, trademark, trade secrets, and technology transfer, and many roles that lawyers can play in each.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Patent Law

Patents are exclusive rights granted to inventors to incentivize the creation and dissemination of useful inventions.

In the United States, patents are issued by the U.S. Patent and Trademark Office and grant “the right to exclude others from making, using, offering for sale, or selling” an invention within the U.S. or from importing the invention to the U.S.2 It is important to understand the distinctions between three different professional players in the patent law world. The first are patent agents. Patent agents have passed the Patent Bar Exam and are licensed to engage in “patent prosecution”: the preparation and submission of patent applications to the U.S. Patent and Trademark Office (USPTO).

Patent agents, however, are not lawyers, and so are restricted to patent prosecution before the USPTO. Non-lawyers with strong technical backgrounds (including law students, in fact) can become patent agents. In contrast, patent attorneys must be admitted to practice law in at least one U.S. state, and therefore, in addition to prosecuting patents, are also permitted to represent their clients in legal matters, such as offering opinions about patent infringement and drawing up contracts. Lawyers with strong technical backgrounds are good candidates for becoming patent attorneys, and some patent agents go on to study and practice law as patent attorneys.

Finally, attorneys with less technical backgrounds but a strong interest in litigation often become patent (or IP) litigators, who represent clients in patent litigation (usually involving claims of patent infringement) in federal court (the U.S. District Courts and the U.S. Court of Federal Claims). These lawyers often litigate other IP issues (such as copyright and trademark) as well. While patent attorneys may be a part of patent litigation teams and supply expert technical advice to the patent litigators, the patent attorneys typically do not take the lead in litigation.

In addition to the obvious substantive differences, there are also some practical differences between patent attorneys and patent litigators. Preparing patent applications can be a more routine and predictable practice and allows lawyers to maintain a schedule closer to a 9-5 workday. By contrast, IP litigation, like all litigation, can be both more unpredictable and more remunerative.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Copyright Law

Copyright grants rights to the creator of an original work, including literary, dramatic, musical, and artistic works, and other intellectual works such as software code. Copyright law is intended to incentivize the creation and dissemination of such works and protects work whether it is published or unpublished. Thoughts and ideas that are never recorded or expressed cannot be copyrighted because copyrighted expression must be tangible. Moreover, copyright protects a form of expression, not the subject matter of a work. Copyrights are governed by the 1976 Copyright Act, which gives authors exclusive rights to reproduce their work, prepare derivative works, distribute copies of the work, or perform or display the work in public.

Once an “original work of authorship” is created, copyright is automatically granted, whether or not the copyright is registered. There are benefits, however, to registering with the Copyright Office, including the ability to use U.S. Customs and Border Patrol to stop the importation of items that infringe on the registered copyright. Copyrights are registered by the Copyright Office of the Library of Congress and last for the remainder of the author’s life plus an additional seventy years. Copyright attorneys are typically either litigators who help their clients enforce their copyrights, or transactional attorneys who help clients manage and license their copyrightable assets.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Trademark Law

A trademark is “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”4 It is an exclusive right to use a certain design in commerce. Trademark law is intended to help consumers readily identify the source of a product and to prevent confusion between brands. Registering a trademark does not prevent others from producing a similar good, but it prohibits them from marketing the good with a mark that is similar enough to confuse consumers about the item’s origin. Trademark lawyers are typically involved in the registration process, provide advice on the development and use of trademarks, or represent their clients in litigation.

A party with a registered trademark may sue for infringement if there is a “likelihood of confusion” between two marks, or a party may sue for dilution if another mark weakens the distinctive quality of the trademark in question. Typical defenses against charges of infringement or dilution include fair use, in which a mark is used in good faith for its primary meaning, nominative use, in which a term must be used to identify another producer’s product, and parodies, when they are not closely tied to commercial use and are subject to First Amendment protection.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Trade Secrets

Trade secrets allow companies to maintain the confidentiality of economically beneficial information. For example, the food industry has many trade secrets, from the recipe for Coca-Cola to the eleven herbs and spices in KFC fried chicken. Many companies rely on trade secrets instead of patents, which are more institutionalized, because obtaining a patent requires full disclosure and because patents expire after twenty years, whereas trade secrets can be kept indefinitely. There is no formal way to protect a trade secret, and there is no legal recourse to prevent someone from using a trade secret once it has been made public. Lawyers, therefore, craft non-disclosure and non-compete employment contracts that both protect trade secrets and comply with employment law.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Technology Transfer

Technology transfer refers to the process by which governments, universities, and other organizations transfer inventions, knowledge, or materials subject to IP restrictions amongst themselves. Transfer from universities or governments to the private sector is also called technology commercialization. Technology transfer typically entails licensing, which grants IP rights by contract. In these situations, lawyers determine what is being transferred (royalties, patents, copyrights, etc.) and draft contracts. Because the U.S. government and universities commercialize huge amounts of technology, technology transfer is a fast-growing field of IP law.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Competition and Antitrust Law

Antitrust law protects consumers from excessive monopolies and predatory business practices.

The Sherman Antitrust Act of 1890 was the first federal legislation to place limits on monopolies and cartels in order to promote competition, charging the federal government with investigating companies suspected of violating these limits. Although it is over 100 years old, this Act still forms the basis for most antitrust litigation pursued by the federal government. At first glance, IP law and antitrust law may seem to work at cross purposes. However, many consider the two bodies of law to be complementary, as both are aimed at encouraging innovation, industry, and competition. For a fuller explanation of the intersection between IP and antitrust law, see the 2000 Federal Trade Commission Report.

A 1995 report issued jointly by the Department of Justice and the Federal Trade Commission, “Antitrust Guidelines for the Licensing of Intellectual Property,” sets out a series of principles for how IP law and antitrust law should relate.6 Finally, interested readers can consult the transcript of a 2007 round table discussion regarding the intersection of these two fields, detailing some of the unique legal challenges facing lawyers and what students who wish to enter this field can expect. As noted in this discussion, attorneys who understand both IP and antitrust law are rare and valuable, making them extremely marketable.

It is helpful to realize that antitrust lawyers do not engage with IP law in the same way as most IP lawyers. Instead, they must have an understanding of IP law when assessing a merger or other conduct under antitrust investigation, as IP laws are often implicated in these situations.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

International Intellectual Property Law

There are three general areas of international IP law: U.S. enforcement of IP rights abroad, cross-border licensing and IP asset management, and cross-border consensus building to create a more comprehensive international IP system. Additionally, IP law opportunities are available in Europe and in some developing countries.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

1.U.S. Enforcement of Intellectual Property Rights Abroad:

Protecting IP rights abroad is important but challenging because copyrights, trademarks, and patents granted in the United States are not always legally enforceable abroad. Treaties attempt to make IP rights enforceable in other countries, but the ultimate enforceability of rights depends on the laws of the country in question, the type of IP being protected, and the specifics of any existing treaties. The U.S. has several governmental organizations, including the Office of the Administrator for Policy and External Affairs in the U.S. Patent and Trademark Office and the Cybercrime and Intellectual Property Unit of the Department of State’s Bureau of International Narcotics and Law Enforcement Affairs, which work to strengthen international cooperation.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

2.Cross-Border Licensing and IP Asset Management:

Cross-border licensing refers to the transactional process through which products in one country are licensed to be used or sold in another. While expanding to foreign markets can be an advantageous business decision, the details of a transaction may impact the future value of IP rights or the owner’s control over those rights. International licensing may also involve tax, pricing, or compliance issues; when conflicts over IP rights ensue, litigation is sometimes involved. Lawyers in this area of IP law help their clients structure contracts and transactions to effectively manage their IP assets and to ensure future control over their rights.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

3.Attempts to Create a Comprehensive International IP System:

Many organizations work to negotiate a more comprehensive international IP system. There have been several bilateral and multilateral agreements that solidify IP arrangements between two or more countries, among most important being the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention for the Protection of Literary and Artistic Works, the Hague Agreement Concerning the Deposit of Industrial Designs, the International Convention for the Protection of New Varieties of Plants, the Madrid Agreement Concerning the International Registration of Trademark, the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty, the Trademark Law Treaty, and the Universal Copyright Convention.7 Organizations that work on this issue include the World Intellectual Property Organization, the U.S. Patent and Trademark Office (Office of the Administrator for Policy and External Affairs), the World Trade Organization, and the European Patent Organization. 

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

Intellectual Property System in India

Historically the first system of protection of intellectual property came in the form of (Venetian Ordinance) in 1485. This was followed by Statute of Monopolies in England in 1623, which extended patent rights for Technology Inventions. In the United States, patent laws were introduced in 1760. Most European countries developed their Patent Laws between 1880 to 1889. In India Patent Act was introduced in the year 1856 which remained in force for over 50 years, which was subsequently modified and amended and was called “The Indian Patents and Designs Act, 1911”. After Independence a comprehensive bill on patent rights was enacted in the year 1970 and was called “The Patents Act, 1970”. Specific statutes protected only certain type of Intellectual output; till recently only four forms were protected.

The protection was in the form of grant of copyrights, patents, designs and trademarks. In India, copyrights were regulated under the Copyright Act, 1957; patents under Patents Act, 1970; trade marks under Trade and Merchandise Marks Act 1958; and designs under Designs Act, 1911. With the establishment of WTO and India being signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), several new legislations were passed for the protection of intellectual property rights to meet the international obligations.

These included: Trade Marks, called the Trade Mark Act, 1999; Designs Act, 1911 was replaced by the Designs Act, 2000; the Copyright Act, 1957 amended a number of times, the latest is called Copyright (Amendment) Act, 2012; and the latest amendments made to the Patents Act, 1970 in 2005. Besides, new legislations on geographical indications and plant varieties were also enacted. These are called Geographical Indications of Goods (Registration and Protection) Act, 1999, and Protection of Plant Varieties and Farmers’ Rights Act, 2001 respectively. Over the past fifteen years, intellectual property rights have grown to a stature from where it plays a major role in the development of global economy.

In 1990s, many countries unilaterally strengthened their laws and regulations in this area, and many others were poised to do likewise. At the multilateral level, the successful conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the World Trade Organization elevates the protection and enforcement of IPRs to the level of solemn international commitment. It is strongly felt that under the global competitive environment, stronger IPR protection increases incentives for innovation and raises returns to international technology transfer.

Unit III Law Relating to Intellectual Property for Legal Aspects Of Business Mcom Sem 2 Delhi University

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Intellectual Property Rights

Delhi University Intellectual Property Law Full Material January 2017

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