Chapter 2 Justifications for Intellectual property Flashcards
Based on the previous modules, what are the factors justifying the existence of individual varieties of intellectual property rights? (4)
- by the public interest in maintaining confidence,
- by the justice of providing reward to authors,
- by the need to encourage disclosure of technical innovation
- and by the benefit to consumers of unambiguous marking of products.
What is an important feature that the Gowers Review noted?
The Gowers Review also noted that on average around 70 per cent of
a company’s value lies in its intangible assets, up from around 40 per
cent in the early 1980s.
In 2012 Google bought the IT company Motorola for $12.5 billion. Less than two years later it sold its physical assets to the Chinese manufacturing company Lenova for $2
billion. Had Google made a very expensive business mistake?
The answer, perhaps not surprisingly, is in the negative. Google did
not want Motorola’s factories and manufacturing equipment – it does
not manufacture anything. Even its branded ‘Chromebooks’ are made
by other companies. Motorola, however, owned a portfolio of around
17,000 patents and Google retained these after selling the physical
assets.
What is the danger of overlapping protection?
The danger of overlapping or cumulative protection lies in bypassing
the balances built into the rights – namely, the limits of duration,
thresholds for protection, scope of protection and defences.
What are the 2 main approaches in answering the danger of overlapping rights?
- The first is to allow ‘cumulation’ of rights.
- The second approach is to try to ensure that each intellectual property
right operates to the exclusion of others, and possibly to the operation
of unfair competition laws as well.
Explain the first approach.
If a creation satisfies the basic criteria for more
than one form of protection, then it can enjoy protection under
each. This approach has been taken in recent years by the European
Commission when drafting community design legislation.
What is an advantage for co-existing rights such as trade marks and passing off.
It has the advantage that legislative amendments to the rights are not interdependent.
What is an disadvantage for co-existing rights such as trade marks and passing off?
However, it can also result in mismatches, for example if ownership provisions differ as
between cumulative rights.
Explain the second approach.
The second approach is to try to ensure that each intellectual property
right operates to the exclusion of others, and possibly to the operation
of unfair competition laws as well.
Give an example of an exclusion of another intellectual property right.
An example of this can be found in the TMA 1994, s.3(2) – the exclusion from trade mark registration of functional shapes.
What might me a danger with the second approach?
Although this approach may seem fairer and more satisfactory for
competitors, it is often difficult to draft exclusionary provisions to ensure
that deserving creations are not denied protection under both systems.
The relationship between copyright protection and UK unregistered
design right has encountered this problem.
