chapter 13

Question 1

intellectual property

Answer 1

the exclusive ownership of a creative work. this means the owner has the exclusive right to determine what will happen with the idea. it can also be sold or licensed to others.

Question 2

Berne Convention

Answer 2

the most important agreement that generally regulates copyright law around the world. it defines works that may be copyrighted as ‘literary and artistic works’.

Question 3

author

Answer 3

the owner of a copyright. this can be a natural or a legal person. ownership is shared if there is more than one author. the ownership of copyright can be divided into moral rights and economic rights.

Question 4

moral rights

Answer 4

usually considered to be independent from the economic rights. they imply that the author or work has the right to be recognised as the author of the work, anf the right to object to any unwanted modification of the work.

Question 5

right of paternity

Answer 5

the right of the author of the work to be recognised as the author of the work.

Question 6

right of integrity

Answer 6

the right to object to any unwanted modification of the work.

Question 7

economic rights

Answer 7

the person who holds the economic rights has the exclusive rights to commercially exploit the work. however, these rights can be held by multiple right holders, eg. publishers.

Question 8

copyright

Answer 8

not an industrial right, so official registration is usually not necessary. as long as the author has evidence he is responsible for creative achievement.

Question 9

TRIPS agreement

Answer 9

recognises a term of 50 years after the first publication.

Question 10

neighbouring rights

Answer 10

the rights to the fixation of a unique interpretation or context to existing work. ‘fixation’ means that someone ‘performs’, ‘produces’, or ‘broadcasts’ existing work in a unique manner. this manner is protected by neighbouring rights. it is a related right

Question 11

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations

Answer 11

one of the leading international treaties that recognises such neighbouring rights for performers, producers, and broadcasting companies. each at some point does something with existing work, and the way they do this is protected.

Question 12

database protection

Answer 12

a related right that protects the specific combination of works, or particular data filed in a database.

Question 13

database

Answer 13

a collection of independent works, data, or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

Question 14

European Database Protection Directive

Answer 14

stipulates that not any random collection of data is subject to database protection. it should be data of which the owner should have done a substantial investment in obtaining, verification, or presentation of the contents, eg. a customer database. a database can protect content that cannot be protected by copyright, or a collection of copyrighted material. then, the owner owns the right to the particular collection.

Question 15

patent

Answer 15

granted to any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

Question 16

invention

Answer 16

something industrial, which can be produced. according to Chinese Patent Law, inventions mean new technical solutions proposed for a product, process, or the improvement thereof. so, a discovery or scientific theory or method is usually not patentable. however, the technique used to make a discovery or a device or product using a theory, can be patented. something that is contrary to public morality is also not patentable. this can however depend on the usage. living things can also not be patented.

Question 17

Haber-Bosch process

Answer 17

a patented technique to create ammonia from nitrogen. however, it can be used to create artifical fertilisers, as well as the gas chambers during WWII.

Question 18

novelty

Answer 18

an invention should be a novelty, meaning a similar invention is not filed yet. it is about the practical application of the invention that should be ew. thus, physical features of an invention cannot be patented.

Question 19

inventive step

Answer 19

an invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. so, an expert should not consider the invention as an obvious solution to the problem. this is the case if it is not far enough from the ‘state of the art’.

Question 20

susceptible to industrial application

Answer 20

means that the invention ‘can be made or used in any kind of industry’.

Question 21

software patent

Answer 21

when it concerns software, there is a different understanding of the concept of industrial applicability in the US and Europe. in the US, software is patentable. in Europe, software can only be patented when it is such an integrated part in an industrial application, that the application would not be meaningful without the software.

Question 22

Patent Cooperation Treaty and European Convention Treaty

Answer 22

try to harmonise the content and the procedures of their patent laws, since procedures to submit a patent are different in each country.

Question 23

‘prior art search’

Answer 23

when one wishes to file a patent, the relevant patent agency will conduct a research to the prior art that relates to the patent. the goal is to find out if the invention is a novelty, or already exists. the result is a ‘prior art search report’.

Question 24

WTO TRIPS agreement

Answer 24

resulted in a patent duration of 20 years in most legal systems.

Question 25

Semi-Conductor Chip Protection Act

Answer 25

for semi-conductors, novelty can be hard to proof, and a circuit is hard to protect and easily copied. thus, semi-conductors have their own Intellectual Property regime in the US. many countries have followed this example.

Question 26

WTO TRIPS-agreement (semiconductors)

Answer 26

on an international level, the protection of semiconductors is recognised in the WTO TRIPS-agreement. it protects the actual topography of the closed circuit. it results in the sole right to commercially exploit the chip for a 10 year term.

Question 27

industrial design

Answer 27

can also be protected. this is also recognised in the TRIPS-agreement. a design is the shape of the product, which contributes to product recognition by the consumer. this design should be new or original. TRIPS recognises a duration of at least 10 years.

Question 28

breeders rights

Answer 28

plant species are usually exempted from patent protection. sometimes new plant species are created by breeders who experiment or use particular techniques. thus, breeders rights are recognised internationally in the TRIPS agreement. the duration differs around the world, but is usually between 20 and 30 years.

Question 29

International Convention for the Protection of New Varieties of Plants

Answer 29

seeks to harmonise the national legislation of its member states in the context of breeders rights. one can file a breeders right only when a new plant species is new (not filed before), distinct (clearly distinguishable from any other variety whose existence is of common knowledge), uniform (clear and distinguishable characteristics), and stable (breeding process leads to similar results).

Question 30

trademark

Answer 30

used by companies to distinguish their product from other products. it is usually observable and graphically displayable. under the TRIPS agreement the term of a trademark in most legal systems is 7 years. it is possible to renew it indefinitely.

Question 31

company name

Answer 31

used by a company to distinguish their company from other companies. most companies file their company as a trademark. the registration usually occurs when registering the company itself. also, it is generally accepted that a company name cannot interfere with an existing trademark, and vice versa.

Question 32

absolute grounds

Answer 32

reasons for a trademark agency to refuse the filing, and therefore, the sign is not eligible for trademark protection. to determine what can be protected under trademark protection, you need to know what the absolute grounds for refusal are. a trademark should have a distinctive character and should not constitute something against the law, public order, or be immoral.

Question 33

Benelux Convention on Intellectual Property

Answer 33

recognises a single trademark protection in Belgium, the Netherlands, and Luxembourg. it gives a good impression of trademark protection in general. it distinguishes four grades of protection.

Question 34

relative grounds to refuse

Answer 34

reasons assessed after usage of the trademark. in practice, it is up to the owners of the trademark to protect is in court when their rights are violated.

Question 35

Berne Convention

Answer 35

establishes a Union for its members in which the copyrights of its citizens are respected. eg. a Dutch author should enjoy copyright protection in other member states.

Question 36

Paris Convention for the Protection of Industrial Property

Answer 36

recognises a priority right for the filing of a patent in one of its member states. this means that when an inventor files a patent in one state, competitors cannot file a similar type of patent for the period of 1 year. however, when the inventor does not continue the procedure to obtain full recognition of the patent, the protection expires.

Question 37

Patent Cooperation Treaty

Answer 37

results in one single procedure to submit an international patent. it results in a centrally organised sum of separate national procedures to grant the patent: the patent will be submitted in each separate state.

Question 38

European Patent Office

Answer 38

the treaty body of the European Patent Convention (EPC). it created one single procedure to file a patent in all member states of the EPC. this is on a more regional level. this procedure also results in a centrally organised sum of separate national procedures to grant a patent.

Question 39

Unitary Patent

Answer 39

would significantly simplify the procedure. one single filing would result in patent protection in major part of the EU, without the need for any further national procedures. a Unified Patent Court will rule in matters of dispute.

Question 40

Madrid Agreement and Protocol

Answer 40

creates a system in which a trademark can be filed with one procedure at once in all member states. it is however not universal, since the protocol only has 97 members and the agreement 55.