Intellectual Property Basics
- Patents – these are associated with technical inventions (think devices, processes, etc)
- Copyright – manuals, books, graphics, computer software, data, web-pages (think anything written, artistic, musical, etc)
- Trade Marks – brands, brand image and reputation (think about logos, slogans, etc)
- Designs – form and appearance (think about the shape of something or how it looks)
- Confidential know-how –secret information, ideas, results and expertise
Ownership of a patent and the rights associated with it provides the owner with the right to prevent anyone else from performing acts such as the manufacture, use or sale of an invention without the owner’s consent. This right, or monopoly, can be enforced for a limited period of time (usually 20 years, subject to annual renewal fees) within the country where patent rights are granted. In the case of University of Glasgow staff, any IP generated in the course of their normal duties will belong to the University of Glasgow, especially if those duties involve research.
Patentability is not judged on the basis of academic merit but by the following four criteria as set out in the Patents Act 1977. In order to obtain patent protection an invention:
• must be novel (i.e. information about the invention must not already be available in the public domain)
• must not be obvious to one skilled in the art (i.e. there must have been an inventive step)
• must be capable of being industrially applicable (i.e. be capable of being made into a product and/or used as a process by industry) and
• must not consist solely of an excluded category - see below
In addition to satisfying the above criteria, a patent has to describe the invention in a form that is sufficient for the skilled person to reproduce it.
There are types of invention that are excluded from being patentable. These include:
• aesthetic creations
• the presentation of information
• schemes carried out mentally
• discoveries of natural or physical phenomena
• methods of surgery, diagnosis and therapy where the method is practised directly on the body (methods diagnosis or therapy are not excluded in the USA)
• plant and animal varieties and essentially biological ways for producing them
• inventions which are offensive or immoral
Copyright is the automatic right granted to the author of an original creative work to prevent unauthorised copying. Copyright arises automatically as soon as a literary, dramatic, musical or artistic work is put into a tangible form. It is important to note that copyright protects the form of expression of ideas, and not the ideas as such.
Items that are protected by copyright include:
- Computer software
- Music and books.
There is no requirement for registration (although registration can be useful in proving date of authorship) and protection currently lasts for the lifetime of the author plus 70 years, although this depends on the type of work involved.
Copyright provides the owner with the rights to prevent others from copying the work without permission, although it should be noted that it is not an infringement of copyright if a third party creates the same work independently.
Trade marks are ‘signs’ (including words, images, logos, colours, domain names, shapes, sounds and even smells) that can be used to identify a particular product or service. The right has a 10-year duration, capable of indefinite renewal, but must be put to genuine use within 5 years of registration.
Trademarks can be either unregistered (indicated by a ™ symbol) or registered (indicated by a ® symbol) and ownership is largely determined on a first to register basis.
Designs can be protected in a variety of ways, depending on their appearance and/or function.
Registered design rights protect the appearance of the whole or part of a product resulting from particular features, such as lines, contours, colours, shape. It is the external appearance and not the article bearing the design that is protected. The design must be novel and have individual character. Protection requires a formal application procedure and, if successful, can provide monopoly protection for up to 25 years. Registered design rights can be applied for in most countries.
Unregistered design rights do not need to be applied for. However, the protection offered is correspondingly lower. It only prevents unauthorised copying of an original design. “Original” means it is not commonplace in the design field in question at the time of creation. Unregistered design rights give 10 years protection from first marketing or 15 years from creation (whichever is shorter).
Know-how (also known as expertise/trade secrets) means any information not in the public domain. Know-how can include techniques, recipes, experimental methods, technical information, processes and protocols, computer software, formulae, discoveries, prototypes, materials, results, drawings, models, data of all types and calculations.
Know-how is only of value as long as it remains secret or confidential. Generally, keeping information confidential is used only where other forms of protection are not possible and the information is judged to be of high commercial value.