COMM231 Chapter 18: Chapter-18-intellectual-property

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14 Feb 2016
Chapter 18 and 19 – intellectual property/ real property
Key concept
Chapter 19 covers real property and chapter 18 intellectual property. Real property law is
typically concerned with land rather than buildings on the land, whereas real estate law
may be concerned with both land and buildings. In this course we cover very generally
both real property law and real estate law. We will also introduce environmental
considerations to the discussions in class
Intellectual property law is a branch of law usually dealt with by lawyers practicing solely
in the !eld. You will need to understand generally the various types of intellectual
property – how they di$er and what they cover – but not the detail of each type
In general, you should ensure you understand:
Ownership of land is not absolute. Understand the restrictions or limits
Ownership must be registered – registry system vs. land titles system
The purchase transaction, particularly the due diligence needed to ensure you are
acquiring what you intend to acquire (e.g. clean property not contaminated land)
How mortgages work, including remedies
Regarding intellectual property, read the entire chapter but concentrate on !g. 18.1
(page 447) and the section on con!dential business information (page 445 – 447)
Ensure you understand the di$erent types of intellectual property and, in broad terms,
how they di$er
Chapter 18 study notes
Main categories of intellectual property laws
oIndustrial design
oCon!dential information
oPatent: protect inventions and are essential to business in pharmaceutical,
electronics, chemical, and manufacturing industries
Can be used to exclude others from using new technology
oIndustrial designs: protect appearance of useful articles against copying
oTrademarks: serve to distinguish goods or services of one provider from another
oCopyright: prevent copying of certain works and is the basis for business involved
in art, publishing, music, communications and software
oCon!dential information: protect things like marking plans, customer lists,
database, price lists
Patents – monopoly to make, use and sell an invention
oDi$erent kinds of invention
Process or methods
Machines or apparatuses
Products or compositions of matter
oExclusion form patent protection
Things that receive exclusive protection under other areas of laws
E.g. computer program – receive protection under copyright law
oBut they can receive patent protection as part of a broader patent, such as
a computerized method of controlling the operation
Things that do not meet the de!nition of a patent
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E.g. scienti!c principles, natural phenomena, abstract theorem
Things that are, for policy reasons, not patentable
E.g. methods of medical or surgical treatment, illicit object
oBusiness method (such as franchising arrangement, accounting methods, insurance
schemes, tax loopholes) – normally not patentable, but a number of business
methods patents have been issued in Canada
First legal decision in Canada upholding the validity of business methods patent
– Amazon one-click application
oRequirements for patentability
New (not been disclosed publicly)
Will be consider as old if: display in trade show, distribute marketing
brochures, advertise product in a way that reveals the invention
One-year grace period
oOk to make discourse within the year preceding the !ling of the application
Useful (solve some practical problem, can actually work rather than
just a scienti'c curiosity)
Unobvious (have some ingenuity or inventive step involved in
oPatent protection
Not arise automatically
Application for a patent must be !led with Canadian Intellectual property o=ce
Based on !rst-to-!le system
Inventor is generally the !rst owner of invention
Ownership of invention created by employees in the course of employment
Employee will be the owner, unless
oEmployee was speci!cally hired to produce the invention, and make the
invention in course of employment
oExpress or implied agreement that precludes employee from claiming the
oPatent application
Preparation of patent application, normally done by a patent agent
2 parts of the application
Speci!cation – description of invention
Claims – exclusive right of the patent holders
If application is successful, patent is issued upon the payment of required fee
Marking the word ‘patented’ and patent number on products is not mandatory,
but legally useful
Notify others existence of right
Put ‘patent pending’ or ‘patent applied for’ on product before patent is issued
Patent give inventor right to exclude others from making, selling or using
invention in 20 years from the date of !ling the application
National – only exist in the country in which the applications are made and
Canadian patent cannot stop use of invention in US
Industrial designs
oProtect shapes or ornamental aspects of a product, does not protect the functional
oRequirement for registration
Original and novel
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Standard of inventiveness is lower than patents
Disclosure or use of the industrial design or displaying, bearing or embodying
the industrial design is a bar to registration
One-year grace period also apply
oRegistration process
Does not arise automatically
Application usually draft by patent agent, and submit to Canadian intellectual
property o=ce
Designer is the owner: unless the designs ordered and paid for by another
Application usually consists written description, graphic depiction, photograph
or drawing
Registration gives the owner the exclusive right to make, import, or sell any
article in respect to which the design is registered
Stop competitors from manufacturing and selling a design that looks
confusingly similar
Protection last for 10 years
Not mandatory to mark the design to indicate that it is registered
If marked, court can award monetary damages for infringement
If not marked, court can only award injunction
oTrademark: word, symbol, design, or any combination of these used to distinguish
the source of goods or serves
Example of trademark
Word, slogan, design (McDonald’s golden arches), series of letters (BMW),
numbers, symbol, distinguishing guise (Coca-Cola bottle)
Distinguishing guise: shaping of wares or their container, or a mode of
wrapping or packaging wares
Colour is not registrable as trademark
But colour may be claimed as part of trademark
Smells or odours not registrable in Canada
Sounds are registrable
oTrade names – name under which a sole proprietorship, a partnership, or a
corporation does business
Adoption of trade name can prevent adoption of trademark, and vice versa
o Trademarks can be registered or unregistered
Registration is required for protection under Trade-marks Act, unregistered
trademarks receive protection under common law
Unregistered – common law trademarks
Consider to be part of the goodwill of a company
Infringement of trademark – address through tort of passing o$
Rights only in geographic areas in which it has been used and in areas into
which the reputation of the owner has spread
Registered trademark
Protection throughout the country
Create presumption of ownership and validity
o Domain names
Domain name: unique address of a website
Top-level domain (TLD)
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