GROUP 1 : INTELLECTUAL PROPERTY

GUAN ZHONG KI091761

GUO YAN KI091887

LIN ANNAN KI091794

SAED BN MOHAMAD BN TALIB KI091358

A) DEFINE INTELLECTUAL PROPERTY (IP).

Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which property rights are recognised--and the corresponding fields of law. Under intellectual property law, owners are granted certainexclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks,patents, industrialdesign rights and trade secrets in some jurisdictions.

B) GIVE 2 EXAMPLES ON IP CASES. PolyairPolyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 (16

June 2005) (and PolyairePty Ltd v K-Aire Pty Ltd [No 2] [2005] HCA 41 (11 August 2005), appeal from the FullFederal Court allowed; joint reasons of McHugh, Gummow, Hayne, Callinan andHeydon JJ. This decision concerns a fundamental but surprisingly unsettled issue underthe 1906 Designs Act, which will continue to be relevant as long as pre-Designs Act 2003designs remain on the Register. Under the 1906 Act an impugned design might be soclose to the registered design as to constitute an ‘obvious imitation’; if not it may still be actionable if it amounts to a ‘fraudulent imitation’. Whereas a finding of obvious imitation is based on a comparison of the two designs alone, ‘fraudulent imitation’ requires additional evidence of actual derivation from the registered design. The issue before the Court was whether the term ‘fraudulent’ in this particular context required some proof of dishonest concealment by the copyist.

The Court’s stance favours the design owner: the requirement of fraud is satisfied even in the absence of any intention to deceive. All that has to be shown is that the design was knowingly derived from a registered design and the changes made were not sufficient to take it outside the scope of the registration. Thus even if there were good reasons to make those changes, other than disguising derivation (for instance functional imperatives) there may still be a fraudulent imitation.This significant victory for registered design owners mirrors the strengthening of their position under the new Designs Act 2003 (Cth), albeit that under that Act the threshold test for registration has been significantly strengthened (by requiring distinctiveness as well as novelty). The High Court’s solution also accords with common sense, in that under the Full Court’s approach it would often be very difficult to generate the kind of evidence that would meet the threshold test for fraudulent imitation.

 Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 (13 December 2001); appeal from the Court of Appeal of Queensland dismissed in a joint judgment of Gleeson CJ, Gummow and Hayne JJ; Kirby and Callinan JJ separately dissenting. This was predominantly a contract case but with some implications regarding dealings with confidential information. It concerned a contract under which information was to pass from the originator of a new-fangled ironing board to a company (Hafele) potentially interested in its commercialisation. The relevant clause subjected information which was to pass to Hafele to a contractual restraint on its future use, but was in its terms not confined to confidential or secret information only. The term thus amounted to a perpetual restraint on Hafele regarding the use of certain information about the ironing board, which would persist even after that information had entered the public domain.

The majority held that the provision therefore amounted to a general restraint of a kind that offended against public policy: every other competitor in the relevant market would be able to benefit from the information once it was public, but not Hafele. The decision affirms the primacy of public policy considerations over contractual autonomy in this area of the law in the eyes of the majority. However, Callinan J in his dissenting judgment espoused the opposing view, that when well informed parties freely enter into a bargain (here not to use certain information) they should be held to it and not be able to rely on a public policy argument conveniently arrived at to escape their contractual obligations some time down the track.

C) WHAT'S THE DIFFERENCE BETWEEN A COPYRIGHT AND A PATENT?

1. There are basically five major legal differences between a copyright and a patent in the United States: subject matter protected, requirement for protection, when protection begins, duration, and infringement. There's also a sixth practical one: cost.

2.Subject matter: A copyright covers "works of authorship," which essentially means literary, dramatic, and musical works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, pantomimes and choreography. A patent covers an invention, which essentially means a new and non-obvious useful and functional feature of a product or process.

3.Requirement for protection: In order for a work to be copyrighted, it must be original and fixed in a tangible medium of expression; no formalities are required . In order for an invention to be patented, it must be novel, non-obvious, and useful and a patent must be issued by the United States Patent and Trademark Office.

4.Start of protection: Copyright protection begins as soon as a work is created. Patent protection does not begin until the patent is issued.

5.Duration: A copyright generally lasts for the life of the author, plus 50 years. In the US, a patent lasts for 17 years from the date granted (in some nations, particularly Japan and most European nations, the duration is 20 years, and is measured from date of application).

6.Infringement: For a copyright to be infringed, the work itself must have actually been copied from (either wholly or to create a derivative work), distributed, performed, or displayed. If a person other than the copyright owner independently comes up with the same or a similar work, there is no infringement. In contrast, a patent confers a statutory monopoly that prevents anyone other than the patent holder from making, using, or selling the patented invention. This is true even if that person independently invents the patented invention.

7.Cost: A copyright is essentially free. Even if you want to register the copyright, the cost is only $20, and the paperwork is much less complicated than the 1040A short form for filing your income tax, well within the capabilities of the person registering the copyright. A patent, on the other hand, is much more costly; there are fees to the Patent and Trademark Office, and the patent application process is much more complex, usually requiring the services of a registered patent agent (and perhaps a lawyer) to draft and prosecute the application, adding to the cost.

Philosophically, you can look at a copyright as protecting the author's rights that are inherent in the work; in contrast, a patent is a reward of a statutory monopoly to an inventor in exchange for providing the details of the invention to the public.

Patents grant exclusive monopoly rights for a limited term for novel and inventive products and processes, in return for publication of details of the products and processes to encourage dissemination of information and promote further development. Patent protection may provide a monopoly for ideas and concepts when embodied in product form or reproducible process. The monopoly however is only granted after an administrative process to determine whether prescribed eligibility requirements have been met.

Copyright Protection Copyright on the other hand is not for protecting ideas or

concepts but is provided to protect original expression from unauthorised reproduction or adaptation . The right is granted automatically as it is not intended to be a monopoly right for any use of a work. Independent creation and minimal threshold creativity is required for copyright to subsist.

Patent Strengths There is no independent creation defence for patent

infringement - infringement occurs as long as the invention falls into one of the claims in the claimant's specification. This is the aspect that renders patent as a more formidable form of protection. With regard to functional aspects, copyright protects against literal copying and slavish imitations of the mode of expression in code. Patent protects against infringing use, whether through derivation or independent development, of the broader functional aspects of the invention.

These two forms of intellectual property protection in the past have sought to provide a balance between rewarding creative endeavour with a grant of exclusive rights, and encouraging and facilitating access to innovation. With patent protecting primarily the industrial arts and copyright protecting primarily the intellectual fine arts, the balance is largely maintained.

D)EXAMPLES: 2 EXAMPLES ON PATENT AND 2 EXAMPLES ON COPYRIGHT.

copyright: You may have written an outstanding song

with a fabulous melody, great lyrics, and memorable hooks. Yet your work doesn't stop there. Songwriting raises many legal issues such as: who gets the credit for a song, how are royalties split, can you claim tax deductions for home studios, and should you register a copyright.

Self-help to protect copyright Once your copyright is infringed on the

internet, you do have options other than sue to the court. Anytime you find someone violating your copyright in the network world, which isn't very often, you could take these three steps in rapid-fire fashion.First, make 100% sure the other person realizes they have violated your copyright. You can send them a nice but firm note telling them to stop whatever activity violates your copyright. If that doesn't work move on to step two.

Second, once you know with 100% certainty they understand they have violated your copyright, yet refuse to respond or stop, you need to shut them down by eliminating their ability of infringement. Send them an email with a carbon copy sent to their Internet Service Provider (ISP), their web hosting company, and even the company that sold them their domain name.Finally, following this e-mail, send a hard copy letter to each party via registered mail. In the email and letter detail exactly how they have blatantly violated your copyright and you want them to desist immediately. By taking this approach you can often just bypass the offending party because the companies enabling them to do business online don't want any trouble. If you can show some evidence of copyright violation they will shut the perpetrator down to avoid getting sued themselves.Though not foolproof, this strategy can help you when facing down a blatant online copyright infringer. Just remember to act quickly, thoroughly and don't hesitate to contact your attorney for advice.

Suggestions referred above will work well especially when you can provide enough evidence of the infringement.

Patent: Patent tradition in Britain can be traced back

to the 15th century, when the Crown began to make specific grants of privilege to manufacturers and traders. The earliest known English patent was for a method of making stained glass. It was granted directly by king Henry VI to John of Utynam in 1449. This patent gave John a 20-year monopoly for his new method. Henry VI and John of Utynam would be awestruck by the technical and legal complexity of today?s United Kingdom patents system. Gone are the days when the king simply granted monopoly rights to an invention.

What constitutes infringement of a patent?

To decide whether an inventor is violating (infringing) a patent, it is necessary to carefully examine the patent's "claims." (Claims are terse statements of the scope of the invention, and most patents contain more than one of them.) The elements of each claim must be compared with the elements of the accused infringer's invention (usually a device or process).

If the elements of a patent claim match the elements of the device or process (called "reading on" or "teaching" the device or process), an infringement has occurred. Even if the claims don't literally match the elements of the infringing device, it is possible that a court would find an infringement by applying what's known as the "doctrine of equivalents"; that is, the patented invention and the allegedly infringing device or process are sufficiently equivalent in what they do and how they do it to warrant a finding of infringement.

For example, Steve invents a tennis racket with a score keeper embedded in the racket handle's end. The invention is claimed as a tennis racket handle that combines grasping and score-keeping functions. Steve receives a patent on this invention. Later, Megan invents and sells a tennis racket with a transparent handle that provides a more sophisticated score-keeping device than Steve's racket. Even though Megan's invention improves on Steve's invention in certain respects, it will most likely be held to be an infringement of Steve's invention, for one of two reasons:

• Megan's invention teaches the same elements as those claimed in Steve's patent (a tennis racket handle with two functions), or

• when considering what it is and how it works, Megan's invention is the substantial equivalent of Steve's invention (using the doctrine of equivalents).

In 2002, the Supreme Court handed down a ruling ( Festo Corp. v. Shoketsu Kinzoku Kabushiki Co. Ltd., 535 US 722 (2002)) that makes it harder for patent owners who amended their patent claims to assert that others are infringing their patent. In essence, patent owners can use the doctrine of equivalents only if they can show that their amendment did not "surrender" the equivalents at issue -- a complex and confusing standard that requires the advice of a patent attorney.

E) DISCUSS HOW TECHNOLOGY INFLUENCES IP.

Protections of Intellectual Property Right in the Network World

Network brings great convenience to the people studying, living, working and communicating of modern society and brings into infinite commercial chances and profits. However, the development of network is the two—edged sword, which produces strong impact to traditional code of conduct and public order, at the same time, bringing into a new social problem—infringement. This essay is goona discuss one aspect of its infringement about intellectual property.

F) COPYING MOVIES, MUSIC, SOFTWARE AND BOOKS. JUST GIVE COMMENTS WHETHER IT’S ETHICAL OR ITS NOT?  

Existent laws to protect copyright in the network world are weak and not convenient for the victims. However, authors should not be discouraged from producing works of their wisdom. The key is to decide before setting anything down in writing or on a computer, what material can be shared freely on the internet and what material should be protected. If an individual wants to share digital material with a limited audience, there are means to do so (such as password protections on websites). In case the copyright were infringed, you should calm down and work out a proper method to settle it, or contact your attorney for advice.

The road to greater, more comprehensive protections for intellectual property is long and challenging. However, it contains many opportunities for creative, innovative solutions that will provide perpetual protections for IPR. Individuals, corporations and organizations who choose to put their works in a digital format will pass on the knowledge of how to protect intellectual property in network world.

The ethical portion is easy. Is it ethical to break laws. If yes, then there is no ethical problem. If no, then it is ethically wrong to illegally obtain the copy.

THANK YOU