Intellectual Property Essay

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1) Compare and contrast the differing protection offered by the law of patents and the law of copyright. In your opinion, are these differences accidental or do they have a sound commercial or legal basis ?

Intellectual property rights are exclusive rights for their owners. Third parties are then generally prohibited from the use or exploitation of what is excluded by these rights. It is to be clarified that it is intended to focus solely on copyrights and patents. Trademark, confidentiality and designs, the other main types of intellectual property are beyond the scope of this essay. There is one simple way to comprehend the two concepts of patents and copyrights. On the one hand patent are rights over an invention. An invention is the result of reasoning. It is the production of some new or improved process or products that are both not obvious for a person skilled in the field and useful. On the other hand, copyrights are rights that protect art in general, art being any products of human's creative activities provided that more than trivial work has been done. The patent law can be seen as a monopoly created by parliament. In the year 1623 the Statute of Monopolies declared that all monopolies are void and of no effect. But an exception was made for the future grand of patent for the term of fourteen years to the first inventor provided it was not contrary to reason of raising price or restrictive of trade. Nowadays, it is basically the same principles that are applied. The copyright law can be seen as a way to restraint trade granted by Parliament. In 1709, the Copyright Act gave an author the exclusive right of printing his work for fourteen years. If the law has extended, the same concepts are still applied. The first point is the difference between what is ruled by patent and copyright. Patent law is protecting inventions. Patent Act 1977 defined an invention as something new thus which does not form part of the state of the art (s.2(1))1. The state of the art being what was made available to the public in any way before the priority date of the patent (s.2(2))2, this date correspond to the date of filling on which certain formalities are satisfied. The question to be asked in order to know if it was part of the art is not whether an information has actually been accessed but whether information could have been accessed prior the filling date. An old illustration of this would be the case of Lang v Gisborne3. In relation to a book, the question was whether the information was available and not whether the book had actually been sold. Thus we need to define what is construed as available to the public. In the Windsurfer4 case, a 12 year old boy, who built a sailboard and used it in public during his holidays, had been enough to make this invention available to the public. Moreover, in assessing if a disclosure of information is enough; it will be considered whether the person skilled in the art will be able to carry out trial and experiments to get to the invention (Synthon5). The last main hurdle for the obtention of a patent will be the requirement of inventiveness. An inventive step is one that is not obvious to a person skilled in the art (s.3)6 and whether there is an inventive step or not has to be decided without hindsight (Haberman v Jackel7). A person 1

Patents Act 1977 s.2(1) Patents Act 1977 s.2(2) 3 Lang v Gisborne, 31 LJ. Ch 769 (1862) 4 Windsurfer International v Tabur Marine [1985] RPC 59, CA 5 Synthon v Smithkline Beecham [2005] UKHL 59, [2006] RPC 10 6 Patents Act 1977 s.3 7 Haberman v Jackel International Ltd (1999) The times 21 January 1999 2


skilled in the art has been described as a graduate or engineer in the field concerned with a few years of experience (Dyson v Hoover8) , it was also held that it should be a “composite entity”, in other words a team of graduate and engineer (General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd9). Furthermore, an invention needs to be...
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