Intellectual Property Flashcards
It is a grant issued by the government to an inventory, designer or maker, the right to exclude others from making, using or selling his invention, design or utility model within the country for a specific term, in exchange of his patentable disclosure.
Patent
Patentable inventions
Any technical solution of a problem in any field of human activity which is new, involves an inventive step and is industrially applicable shall be patentable. It may be, or may relate to, a product, or process, or an improvement of any of the foregoing.
Non-patentable inventions
The following shall be excluded from patent protection:
1. Discoveries, scientific theories and mathematical methods;
2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers;
3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods;
4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to micro-organisms and non-biological and microbiological processes.
This does not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection:
5. Aesthetic creations; and
6. Anything which is contrary to public order or morality.
Elements of a Patent
- Novelty: An invention shall not be considered new if it forms part of a prior art.
- Inventive Step - An invention involves an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date of the application claiming the invention.
- Industrial Applicability - An invention that can be produced and used in any industry shall be industrially applicable.
Who has right to a patent?
The right to a patent belongs to the inventory, his heirs, or assigns.
What are the grounds for Cancellation of Patent?
- Invention is not new
- The patent did not disclose the invention in a manner sufficiently clear and complete for it to be carried out by any person skilled in the art.
- Contrary to public order or morality.
What happens when two or more person jointly made an invention?
When two (2) or more persons have jointly made an invention, the right to a patent shall belong to them jointly.
First to file Rule
if two or more persons separately made the same invention, priority is given to one who filed first.
Prior User
Notwithstanding the exclusivity of rights mentioned above, any prior user, who, in good faith was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, before the filing date or priority date of the application on which a patent is granted, shall have the right to continue the use thereof as envisaged in such preparations within the territory where the patent produces its effect.
The right of the prior user may only be transferred or assigned together with his enterprise or business, or with that part of his enterprise or business in which the use or preparations for use have been made. (Section 73)
The making, using, offering for slae, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of the patentee constitutes ______
Infringement
Issuance of a license by the Director General of the IPO to exploit a patented invention without the permission of the patent holder, either by manufacture or through parallel importation.
Compulsory Licensing
What are the grounds for compulsory licensing?
- National emergency/circumstances of extreme urgency
- Public interest so requires
- The use of the patent is anti-competitive
- Public non-commercial use without satisfactory reasons
- Invention is not being worked in the PH on a commercial scale without satisfactory reasons (importation counts as working or using)
- Demand for patented drugs and medicine is not being met to an adequate extent and or reasonable terms, as determined by DOH.
How are trademark rights acquired?
Registration
What are marks which cannot be registered?
- Consists of immoral, deceptive or scandalous matter, or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute;
- Consists of the flag or coat of arms or other insignia of the Philippines or any of its political subdivisions, or of any foreign nation, or any simulation thereof;
- Consists of a name, portrait or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the Philippines, during the life of his widow, if any, except by written consent of the widow;
- Is identical with a registered mark belonging to a different proprietor or a mark with an earlier filing or priority date, in respect of:
a.The same goods or services, or
b.Closely related goods or services, or
c.If it nearly resembles such a mark as to be likely to deceive or cause confusion;
COLORABLE IMITATION: denotes such a “close or ingenious imitation as to be calculated to deceive ordinary persons, or such a resemblance to the original as to deceive an ordinary purchaser, giving such attention as a purchaser usually gives, and to cause him to purchase the one supposing it to be the other. (Etepha, AG vs. Director of Patents)
5. Is identical with, or confusingly similar to, or constitutes a translation of a mark which is considered by the competent authority of the Philippines to be well-known internationally and in the Philippines, whether or not it is registered here, as being already the mark of a person other than the applicant for registration, and used for identical or similar goods or services: Provided, That in determining whether a mark is well-known, account shall be taken of the knowledge of the relevant sector of the public, rather than of the public at large, including knowledge in the Philippines which has been obtained as a result of the promotion of the mark;
6. Is identical with, or confusingly similar to, or constitutes a translation of a mark considered well-known in accordance with the preceding paragraph, which is registered in the Philippines with respect to goods or services which are not similar to those with respect to which registration is applied for: Provided, That use of the mark in relation to those goods or services would indicate a connection between those goods or services, and the owner of the registered mark: Provided further, That the interests of the owner of the registered mark are likely to be damaged by such use;
7. Is likely to mislead the public, particularly as to the nature, quality, characteristics or geographical origin of the goods or services;
8. Consists exclusively of signs that are generic for the goods or services that they seek to identify;
9. Consists exclusively of signs or of indications that have become customary or usual to designate the goods or services in everyday language or in bona fide and established trade practice;
10. Consists exclusively of signs or of indications that may serve in trade to designate the kind, quality, quantity, intended purpose, value, geographical origin, time or production of the goods or rendering of the services, or other characteristics of the goods or services;
11. Consists of shapes that may be necessitated by technical factors or by the nature of the goods themselves or factors that affect their intrinsic value;
12. Consists of color alone, unless defined by a given form; or
13.Is contrary to public order or morality.
A certificate of registration shall be prima facie evidence of:
- The validity of the registration
- The registrant’s ownership of the mark;
- The registrant’s exclusive right to use the same in connection with the goods or services and those that are related thereto specified in the certificate
Duration of protection and rights
Trademark
The rights to a trademark shall be 10 years from registration
Renewal: the rights to a trademark in a certificate of registration may be renewed for periods of 10 years at its expiration upon payment of the prescribed fee and upon filing a request at any time within 6 months before expiration or within 6 months after such exploration upon payment of an additional fee.
Tests to determine infringement
(2)
- Holistic or totality test: considers the entirety of the marks in question
- Dominancy test: focus is on prevalent or dominant features. Confusing similarity is to be determied not only on the visual but also on the aural and connotative comparisons and overall impressions between two trademarks.
It is the right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by the statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specific period, with the sole and exclusive privilege of multiplying coppies of the same and publishing and selling them.
Copyright
Derivative works protected by copyright
- Dramatizations, translations, adaptations, abridgments, arrangements, and other alterations of literary or artistic works; and
- Collections of literary, scholarly or artistic works, and compilations of data and other materials which are original by reason of the selection or coordination or arrangement of their contents.
Works not protected
(9)
- Any idea
- Procedure
- System method or operation,
- Concept
- Principle
- Discovery or
- Mere data as such, even if they are expressed, explained, illustrated or embodied in a work
- News of the day and other miscellaneous facts having the character of mere items of press information; or
- Any official text of a legislative, administrative or legal nature, as well as any official translation thereof
Ownership of Copyright
- Original - Author
- Works of Joint authorship - co-authors; rules of co-ownership. If separately identifiable, the author of each part shall be the original owner of the copyright in the part that he has created.
- Works during employment - employee, if creation is not part of his regular duties. employer, if work is the result of the performance of his regularly-assigned duties.
- Commissioned work - the person who commissioned the work have the ownership, but the copyright remains with the creator
- Audiovisual work - The producer, the author of the scenario, the composer of the music, the film director, and the author of the work so adapted. However, subject to contrary or other stipulations among the creators, the producers shall exercise the copyright to an extent required for the exhibition of the work in any manner, except for the right to collect performing license fees for the performance of musical compositions, with or without words, which are incorporated into the work.
- Letters - writer
- Anonymous and Pseudonymous Works - Publishers shall be deemed to represent the authors of articles and other writings published without the names of the authors or under pseudonyms, unless the contrary appears, or the pseudonyms or adopted name leaves no doubts as to the author’s identity, or if the author of the anonymous works discloses his identity.
Limitations on Copyright
- Reproduction for the exclusive use of the blind, visually and reading-impaired persons.
- Recitation or performance of a work done priavtely and free of charge or if made strictlyf for charitable or religious institution.
- making of quotations from a published work provided that the author and name of the source are properly cited or mentioned
- reproduction by mass media of articles on current political, social, economic, scientific or religious topic, lectures, addresses and other owrks of the same nature
- reproduction and communication to the public –as part of reports of current events
- The inclusion of a work in a publication, broadcast, or other communication to the public, sound recording or film, if such inclusion is made by way of illustration for teaching purposes and is compatible with fair use; source and author are properly mentioned
- The recording made in schools, universities, or educational institutions of a work included in a broadcast for the use of such schools, universities or educational institutions: must be deleted within a reasonable period
- The making of ephemeral recordings by a broadcasting organization by means of its own facilities and for use in its own broadcast;
- The use made of a work by or under the direction or control of the Government, by the National Library or by educational, scientific or professional institutions where such use is in the public interest and is compatible with fair use;
- The public performance or the communication to the public of a work, in a place where no admission fee is charged in respect of such public performance or communication, by a club or institution for charitable or educational purpose only, whose aim is not profit making, subject to such other limitations as may be provided in the Regulations;
- Public display of the original or a copy of the work not made by means of a film, slide, television image or otherwise on screen or by means of any other device or process: Provided, That either the work has been published, or, that original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title; and
- Any use made of a work for the purpose of any judicial proceedings or for the giving of professional advice by a legal practitioner.
Terms of Protection
Copyright
- General - life of the author + 50 years after his death
- Joint Authorship - The economic rights shall be protected during the life of the last surviving author and for fifty (50) years after his death.
- Anonymous or Pseudonymous works - Fifty (50) years from the date on which the work was first lawfully published: Provided, That where, before the expiration of the said period, the author’s identity is revealed or is no longer in doubt, the general terms of protection shall apply, as the case may be: Provided, further, That such works if not published before shall be protected for fifty (50) years counted from the making of the work.
- Works of applied art - The protection shall be for a period of twenty-five (25) years from the date of making.
- Audio-visual works including those produced by process analogous to photography or any process for making audio-visual recordings - Fifty (50) years from date of publication and, if unpublished, from the date of making.
- Performers and producers of sound recordings - For performances not incorporated in recordings, fifty (50) years from the end of the year in which the performance took place; and
For sound or image and sound recordings and for performances incorporated therein, fifty (50) years from the end of the year in which the recording took place. - In case of broadcasts - Twenty (20) years from the date the broadcast took place. The extended term shall be applied only to old works with subsisting protection under the prior law.
