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An Overview Of Trademarks, Copyrights And Patents
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Transcript of An Overview Of Trademarks, Copyrights And Patents
21/03/2006 Dept. of Pharmaceutics 1
AN OVERVIEW OF TRADEMARKS, COPYRIGHT AND PATENTS
BY
Dr. Basavaraj K. Nanjawade, M.Pharm., Ph.D
Asst. Prof.Department of Pharmaceutics,
KLES College of Pharmacy, JN Medical College Campus,
BELGAUM – 590 010E-mail: [email protected]
21/03/2006 Dept. of Pharmaceutics 2
ConstitutionConstitution
The Congress shall have the powerThe Congress shall have the power
. . . to promote the progress of . . . to promote the progress of science and useful arts, by securing for science and useful arts, by securing for limited times to traders, authors and limited times to traders, authors and inventors the exclusive right to their inventors the exclusive right to their respective trading, writings and respective trading, writings and discoveriesdiscoveries
. . . .. . . .
21/03/2006 Dept. of Pharmaceutics 3
TRADEMARKTRADEMARK
Protection for Traders
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What is a Trademark?What is a Trademark?
A trademark is something that distinguishes your products from others within the market.
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A Trademark cab be:A Trademark cab be:
A word or nameA logoA sloganA design
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In certain cases, this can be In certain cases, this can be extended to…extended to…
A colour schemeA smellA sound
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Trademark or Trade nameTrademark or Trade name
A trade name is slightly different to a trademark. A trade name refers to the name of the business or company, where a trademark refers to products/services.
However a trade name can be used as a trade mark if it is used to help distinguish between products and service.
21/03/2006 Dept. of Pharmaceutics 8
Objective of TrademarksObjective of Trademarks
1. To prevent confusion among consumers as to the source of goods or services;
2. To permit the trade mark owner to control the products’ or services’ reputation.
3. To protect the good will that the trademark owner has built up in his products and services.
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Qualifying as a TrademarkQualifying as a Trademark
Trade marks cannot be freely registered and will be investigated thoroughly before registration is approved.
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To qualify for registration the To qualify for registration the trade mark must;trade mark must;
. A trade mark is a symbol or sign which differentiates one type of business from another.. A sign can include a business logo, words/content or anything similar.. In order for a trade mark to be registered, it must be sufficient distinct for the service/ goods it is applied to cover.. Obviously, it must not be similar to existing trade marks, nor can it be deceptive or illegal in any way.
21/03/2006 Dept. of Pharmaceutics 11
Registering a Trade markRegistering a Trade mark
You cannot simply apply for a trademark and assume it will be accepted – there is a rigorous examination process which takes place by the patent office before you will find out it your application has been successful. You can read about the complete application processwww.uspto.orgwww.patent.gov.uk
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What is the What is the symbol symbol
This symbol stands for registered trade mark (RTM), and clearly can only be used once your are the owner of the mark.The symbol usually goes after the trade mark, in a smaller type size than the mark itself, and in a raised position, but this is not compulsory.
21/03/2006 Dept. of Pharmaceutics 13
Can I Use The TM SymbolCan I Use The TM Symbol
A company/trade can use the TM symbol, however this does not mean the trade mark has been registered.
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Service Marks (SM)Service Marks (SM)A service mark (SM) is exactly the same as a trade mark with the exception that it.
The same rules and principles apply will consider trademarks to include service marks unless for any reason they need to be addressed separately.
21/03/2006 Dept. of Pharmaceutics 15
What Does What Does , TM & SM mean & , TM & SM mean & when can I use them?when can I use them?
. A party can display next to a trademark or service mark that has been legally registered. . This symbol will inform people that you have the right to take legal action if the trademark or service mark is violated.
21/03/2006 Dept. of Pharmaceutics 16
What Does What Does , TM & SM mean , TM & SM mean & when can I use them?& when can I use them?
. A Party can display TM next to a trademark that has not been registered. However, there must be a public claim to the trademark.
21/03/2006 Dept. of Pharmaceutics 17
What Does What Does , TM & SM mean , TM & SM mean & when can I use them?& when can I use them?
False claims to a registered mark-using the with non-registered marks-is seen as an act of fraud and offenders will be prosecuted.
A party can display SM next to a service mark that has not been registered. However, there must be a public claim to the service mark.
21/03/2006 Dept. of Pharmaceutics 18
COPYRIGHTSCOPYRIGHTS
Protection for Authors
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COPYRIGHTCOPYRIGHT
A copyrightA copyright is an author’s is an author’s legal ownership of a creative legal ownership of a creative work. Examples of such creative work. Examples of such creative works include a writing, a works include a writing, a pictorial work, a three pictorial work, a three dimensional sculptural work, a dimensional sculptural work, a musical composition. musical composition.
21/03/2006 Dept. of Pharmaceutics 20
What Is Protected by Copyright?What Is Protected by Copyright?
"original works of authorship fixed
in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device
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Conditions for CopyrightConditions for Copyright
Must be original work: Authorship must be original and cannot simply be copied or reproduced from another author.
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Conditions for CopyrightConditions for Copyright
Must be fixed in a tangible medium: Cannot reside in the author's mind, but must be transferred from the author’s mind onto a fixed tangible medium, such as a writing, a sculpture, a musical work, etc.
21/03/2006 Dept. of Pharmaceutics 23
Not Protected By CopyrightNot Protected By Copyright
Ideas are not protected:including concepts, methods of
operation, business systems, processes, procedures, discoveries and natural laws.
21/03/2006 Dept. of Pharmaceutics 24
Not Protectable By CopyrightNot Protectable By Copyright
Facts and research resultsWork without original authorshipFacts or discoveries Government works created by the
government.
These are not proper for copyright protection, but rather should be protected via the patent system.
21/03/2006 Dept. of Pharmaceutics 25
Protectable WorksProtectable Works
Literary works and computer programs.
Pictorial, graphic and sculptural works .
Copyright in useful articles: The aesthetic aspects of a useful article may be protected by CR if they are separable from the functional, structural components
21/03/2006 Dept. of Pharmaceutics 26
Protectable WorksProtectable Works
Blueprints Sound recordings Architectural works Fictitious characters Compilations Derivative works
21/03/2006 Dept. of Pharmaceutics 27
Rights Under Copyright LawRights Under Copyright Law
1) to reproduce or copy the work; 2) to prepare derivative works; 3) to distribute copies to the public; 4) to perform in public (such as for a play, a musical composition); 5) the right to display the work in public
21/03/2006 Dept. of Pharmaceutics 28
Fair UseFair Use
Fair use is not an exception to infringement, rather, once infringement has taken place it provides a legal excuse for having infringed on the author's copyright.
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Who Owns The Copyright?Who Owns The Copyright?
The author of the work is the initial owner of the copyright.
Works made for hire: the copyright is owned by the employing party
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Work Made For HireWork Made For Hire
1) Work created by an employee while acting within the scope of the employment, particularly where the hiring party has a right to exercise control over the author in the way the work is created.
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Work Made For HireWork Made For Hire
2) Work by independent contractor a) the work is a contribution to a
collective work; part of an audiovisual work; a translation; a supplement; a compilation; an instructional text; answers for a test; or an atlas; AND
b) if the parties agree in a written contract that the work will be considered a "work made for hire."
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Copyright NoticeCopyright Notice
Not required in the U.S.
Required in other countries.
Example:
– © 2005 by T-series. All Rights Reserved.
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Copyright RegistrationCopyright Registration
Copyright is automatic; registration is not required.
However, registration puts the world on notice and provides the author with additional rights in infringement litigation.
Registration is recorded by the Copyright Office of the National Library of Congress.
21/03/2006 Dept. of Pharmaceutics 34
Term Of CopyrightTerm Of CopyrightWorks created during or after 1978: Works created during or after 1978: copyright good for the life of the author copyright good for the life of the author plus 70 years.plus 70 years.
Anonymous or pseudonymous work, or Anonymous or pseudonymous work, or work made for hire: 95 years from work made for hire: 95 years from publication or 120 years from creation, publication or 120 years from creation, whichever expires first.whichever expires first.
21/03/2006 Dept. of Pharmaceutics 35
Remedies For InfringementRemedies For Infringement InjunctionInjunction
Seizure and disposal ofSeizure and disposal of
infringing articlesinfringing articles
Monetary recoveryMonetary recovery
•Actual damages or Statutory damagesActual damages or Statutory damages
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Copyright ExpiresCopyright Expires
When copyright has expired anyone can use the material without infringing copyright. Copyright cannot be renewed.
21/03/2006 Dept. of Pharmaceutics 37
PATENTSPATENTS
Protection for InventorsProtection for Inventors
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What is PatentsWhat is Patents
A ‘Patent’ gives an inventor exclusive rights to use their invention for a limited time. These rights will prevent other parties from copying or selling the invention without the permission of the inventor.
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What Invention can be What Invention can be Patented?Patented?
. Products
. Process (functional or technical)
. Software
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A Patent Is A Negative RightA Patent Is A Negative Right
A patentA patent is a government issued deed is a government issued deed which confers upon the patentee(s) (the which confers upon the patentee(s) (the inventor who has been granted a inventor who has been granted a patent) the right to exclude others from patent) the right to exclude others from the invention.the invention.
21/03/2006 Dept. of Pharmaceutics 41
How will I know if my Invention is How will I know if my Invention is NewNew
Inventors can (Optional) file for a process whereby the patent office searches through existing files to determine if your invention has already been patented.
The patent office will also decide whether your invention is not simply a progression of an existing product/process on approval, you are free to apply for a patent.
21/03/2006 Dept. of Pharmaceutics 42
Types of PatentsTypes of Patents
. Utility Patents
. Design Patents
. Plant Patents
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Utility PatentUtility Patent
Utility Patents:Utility Patents: are issued for “. . . any are issued for “. . . any newnew and and usefuluseful processprocess, , machinemachine, , manufacturemanufacture, or , or composition of composition of mattermatter, or any new and useful , or any new and useful improvement thereof.” improvement thereof.”
Valid for twenty (20) years from the date Valid for twenty (20) years from the date of filing or the earliest priority date.of filing or the earliest priority date.
21/03/2006 Dept. of Pharmaceutics 44
Types of PatentsTypes of Patents
Design Patents:Design Patents: are issued for are issued for novel, non-obvious, ornamental novel, non-obvious, ornamental design in an article of manufacture, in design in an article of manufacture, in other words, for its appearance.other words, for its appearance.
The term of a design patent is The term of a design patent is fourteen (14) years from the date of fourteen (14) years from the date of grant.grant.
21/03/2006 Dept. of Pharmaceutics 45
Types of PatentsTypes of Patents Plant Patents:Plant Patents: are issued for new are issued for new varieties of plants which have been varieties of plants which have been asexually reproduced. asexually reproduced.
The new variety must be novel, distinct, The new variety must be novel, distinct, non-obvious and must have been non-obvious and must have been asexually reproduced.asexually reproduced.
Plants discovered in nature are not Plants discovered in nature are not patentable.patentable.
A plant patent has the same length of A plant patent has the same length of term as a utility patent.term as a utility patent.
21/03/2006 Dept. of Pharmaceutics 46
Requirements for PatentabilityRequirements for Patentability
MUST BE USEFULMUST BE USEFUL
MUST BE NOVELMUST BE NOVEL
MUST BE NONOBVIOUSMUST BE NONOBVIOUS
21/03/2006 Dept. of Pharmaceutics 47
Invention Must Be UsefulInvention Must Be Useful““Utility”, is generally self-evident Utility”, is generally self-evident from a description of the inventionfrom a description of the invention
Utility is usually easy to meet.Utility is usually easy to meet.
Except in your case.Except in your case.
21/03/2006 Dept. of Pharmaceutics 48
Invention Must Be NovelInvention Must Be Novel
The PRIOR ARTThe PRIOR ART
NOVELTY = DIFFERENTNOVELTY = DIFFERENT
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Invention Must Be Non-ObviousInvention Must Be Non-Obvious
Nonobvious to those of ordinaryNonobvious to those of ordinary
skillskill
Obviousness – degree of noveltyObviousness – degree of novelty
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Anything New Under The SunAnything New Under The Sun
A new composition of matter A new composition of matter qualifies for a patent, be it inanimate qualifies for a patent, be it inanimate matter or living matter. matter or living matter.
21/03/2006 Dept. of Pharmaceutics 51
What Is Not PatentableWhat Is Not Patentable Natural lawsNatural laws
Mathematical expressionsMathematical expressions
Abstract ideas Abstract ideas
Anything not USEFUL, NOVEL and Anything not USEFUL, NOVEL and NON-OBVIOUS (perpetual motion NON-OBVIOUS (perpetual motion machine)machine)
21/03/2006 Dept. of Pharmaceutics 52
Computer ProgramsComputer Programs
Computer programs applied to Computer programs applied to
producing useful results may beproducing useful results may be
patentable.patentable.
21/03/2006 Dept. of Pharmaceutics 53
Business MethodsBusiness Methods
May be patentableMay be patentable
If useful, novel, If useful, novel,
and non-obviousand non-obvious
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Who Gets The Patent?Who Gets The Patent?
Foreign countries = first toForeign countries = first to
filefile
U.S. = first to inventU.S. = first to invent
U.S. will likely changeU.S. will likely change
21/03/2006 Dept. of Pharmaceutics 55
Public DisclosurePublic Disclosure
It is best to file a patent application before disclosing an invention to the public.
21/03/2006 Dept. of Pharmaceutics 56
Don’t Delay in FilingDon’t Delay in Filing
Part of the patent law, prohibits issuance of a patent if "the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States."
21/03/2006 Dept. of Pharmaceutics 57
You Snooze, You LoseYou Snooze, You Lose
This year is a critical date
You will lose all your rights
Invention goes into public domain
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File Before DisclosingFile Before Disclosing
The inventor always runs a higher risk when disclosing the invention before a patent application is filed.
21/03/2006 Dept. of Pharmaceutics 59
What to File?What to File?
Provisional Application
Regular Utility Application
International Application
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Provisional ApplicationProvisional Application
– No specific format required– Must provide enabling disclosure– Obtain quick filing date (“first to file”)– Remains in effect for one year– Must file Utility Application before expiration
to maintain the priority filing date
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Regular Utility ApplicationRegular Utility Application
but are not an absolute requirement There is an accepted format, but at minimum requires:– A written description containing an enabling
disclosure; and– At least one claim.– One or more drawings may be helpful
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International ApplicationInternational Application
Patent Cooperation Treaty (PCT)U.S. is signatory memberUnified examination processInternational search and opinionIf opinion is favorable, file the PCT
application in jurisdictions of choice
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Patent PendingPatent Pending
Once a patent application has been filed, the invention may be marked with the designation “patent pending” as a means of notifying the public of a claim to legal ownership by the inventor.
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Patent Pending Protection?Patent Pending Protection?
NO PROTECTION FROM COPYING
Right to exclude others = Patent
Patent pending = notice that a patent application has been filed
21/03/2006 Dept. of Pharmaceutics 65
The Patent ApplicantThe Patent Applicant
U.S. application must be filed in the name(s) of the inventor(s)
Employer may be the owner
Assignment acknowledges ownership
21/03/2006 Dept. of Pharmaceutics 66
Who Is An Inventor?Who Is An Inventor?
Inventor = material contribution Inventor = material contribution
All inventors must be namedAll inventors must be named
Not like authorship in a paperNot like authorship in a paper
Inventorship confers legal rightsInventorship confers legal rights
21/03/2006 Dept. of Pharmaceutics 67
Collaborative WorkCollaborative Work
Co-Investigators from two Co-Investigators from two
UniversitiesUniversities
May be co-inventorsMay be co-inventors
Both Universities will own theBoth Universities will own the
inventioninvention
21/03/2006 Dept. of Pharmaceutics 68
Questions of Coinventorship?Questions of Coinventorship?
Contact the Office of Technology Contact the Office of Technology
TransferTransfer
They will help you sort this outThey will help you sort this out
21/03/2006 Dept. of Pharmaceutics 69
So You Filed, Now What?So You Filed, Now What? Application published at 18 monthsApplication published at 18 months
Administrative actions within six monthsAdministrative actions within six months
First substantive review may take 1-2First substantive review may take 1-2
years after filing (Office action)years after filing (Office action)
Overall process (prosecution) will typicallyOverall process (prosecution) will typically
take up to about 3 years.take up to about 3 years.
21/03/2006 Dept. of Pharmaceutics 70
What Do we Need To Know?What Do we Need To Know?
Patent Attorney or Patent AgentPatent Attorney or Patent Agent
•Must be licensed by PTOMust be licensed by PTO
Must pass the “patent bar examMust pass the “patent bar exam
21/03/2006 Dept. of Pharmaceutics 71
Education RequirementEducation Requirement
Patent Agents and Patent Attorneys Patent Agents and Patent Attorneys
are typically engineers or scientistsare typically engineers or scientists
21/03/2006 Dept. of Pharmaceutics 72
We Are The ExpertWe Are The Expert
We must help the patent attorney We must help the patent attorney
understand our invention.understand our invention.
21/03/2006 Dept. of Pharmaceutics 73
The Attorney or Agent’s JobThe Attorney or Agent’s Job Obtaining a patent is only part of it.Obtaining a patent is only part of it.
The trick is to obtain the best patentThe trick is to obtain the best patent
possible.possible.
This may be the broadest patent This may be the broadest patent coverage permitted by law, in view of coverage permitted by law, in view of the prior art.the prior art.
21/03/2006 Dept. of Pharmaceutics 74
Is It Patentable?Is It Patentable? “ “Chance favors the prepared Chance favors the prepared mind.” Louis Pasteur.mind.” Louis Pasteur.
Be on the lookout forBe on the lookout for NOVELTYNOVELTY..
Leave the rest to Attorney or Leave the rest to Attorney or Agent’s.Agent’s.
21/03/2006 Dept. of Pharmaceutics 75
Difference between Patent, Difference between Patent, Copyright and TrademarkCopyright and Trademark
Patent allow the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator’s
Trademark on the other hand is not concerned with how a new technology is used. It applies to the names, logos and other devices-such as color, sound and that are use to identify the source of goods or service and distinguish them from their competition.
21/03/2006 Dept. of Pharmaceutics 76
Difference between Patent, Difference between Patent, Copyright and TrademarkCopyright and Trademark
Copyright applies to expressive works such as novels, fine and graphic arts, music, records, photography, software, video, cinema and choreography. It’s possible to get a patent on technologies used in the arts, but it is copyright that keeps one artist from stealing another artist’s creative work.
21/03/2006 Dept. of Pharmaceutics 77Questions?Questions?