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Law 2101 - Jan. 30.docx

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Law 2101

Law 2101 Thursday January 30 Intellectual Property (con’t) Industrial Designs • Industrial designs protect the visual appearance of a product o eg. the shape or pattern • Whereas trademarks distinguish between products, industrial designs are about the appearance of the product itself o Functional features cannot be trademarks, but they can be industrial designs • Industrial designs protect against manufacture, sale, rent, or importation • Example: The iPhone has tried to protect its design as an industrial design • Industrial Designs: o Must be registered within one year of initial use  They do not arise automatically (like trademarks do) o Must be registered to claim infringement o Registration lasts for 10 years • Industrial designs do not extend to functional components or composition – only design or appearance o eg. you could get an industrial design for the shape of a Coke bottle (but you couldn’t get a trademark for it) Other forms of intellectual property: The government has come up with separate rules for integrated circuits (eg. chips in phones, etc…) as well as ‘plant breeder’s rights’ (eg. if you come up with a new design for Apple). Patents • Patents protect inventions. o Inventions don’t include ideas – you can only patent something that you can build o eg. you couldn’t patent an idea for an elevator to the sun (you can’t build this) • Patents provide exclusive rights to “practice” an invention o To practice is to make, use, or sell • Inventions are: o Products o Compositions (eg. drugs)  It doesn’t really work to patent recipes because if someone even changed something very minor, it would no longer be patented (too easy to get around) o Process  It used to be thought that you could patent business methods in the U.S., but not in Canada… until Amazon obtained a patent for their ‘1 click order’ business method.  However, this idea is fairly recent in Canada and we don’t know the specific rules o Improvements on any of these  Example: If someone has a patent on a dry erase marker and someone comes up with a better cap that allows the marker to stay moist longer – this is a patentable invention because it is an improvement. However, you could not put your improved cap on the original marker because it is patented. In order to commercialize both of these inventions, the company that makes the marker could get a license from the cap producers to sell the improved caps.  Patents on improvements has generated quite a bit of controversy • eg. One of the big drug companies tried to patent a cancer drug. When the patent was about to expire, the drug company invented an improvement (because the generic companies could begin manufacturing the drug). The generics challenged this new patent in court because the drug company already had the advantage of 20 years of exclusivity before the patent expired – they said that it wasn’t a true improvement, just an attempt to extend the patent. An Indian court agreed, but then the drug company said that they weren’t going to do anymore research in India. The direct result was that if the drug company won, thousands of people would die because while they could afford the generic drug, they couldn’t afford the new one. • The law has to achieve a balance between providing incentive for people to be inventive, but at the same time benefit society • Patents last for 20 years from the date of first application o However, they have a useful life of 17 years (because it takes about 3 years to get one) • To be patented, an invention must be: o New (not published within the previous year)  This can be a problem for scientists who like to collaborate, write papers, speak at conferences, etc…
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