Module 6: Patents and Trademarks Flashcards
A form of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling public disclosure of the invention
Patent
What do patents prevent that copyright does not?
Independent creation as well as copying
Occurs when someone makes unauthorized use of another’s patent.
The violation of the rights secured by the owner of a patent
Patent infringement
The most common defense against patent infringement
A counterattack on the claim of infringement and the validity of the patent itself.
In cases of trying to prove patent infringement, even if the patent is valid, the plaintiff must still do what?
Prove that every element of a claim as infringed and that the infringement caused some sort of damage.
Under Philippine law, what are patentable inventions?
Any technical solution of a problem in any field of human activity that is:
New
Involves an inventive step
Industrially applicable
An invention is considered new if?
It does not form part of a prior art.
An invention involves an inventive step if?
Having regard to a 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.
An invention shall be industrially applicable if?
it can be produced and used in any industry.
Can computer software be patented?
No. Section 22.2 of RA 8293 provides that computer programs are not patentable although they are protected by copyright (Section 172)
Why aren’t computer programs patentable?
An inventive step is absent.
According to Section 22. Non-Patentable Inventions - The following shall be excluded from patent protection:
22.2 Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers;
If the Employee was Able to Develop or Design a Patentable Inventions During the Course of his Employment Using the Facilities and Materials of His Employer:
Who Shall Own the Patent?
In case the employee made the invention in the course of his employment contract, the patent shall belong to:
1. The employee, if the inventive activity is not part of his regular duties even if the employee uses the time, facilities and materials of the employer.
- The employer, if the invention is the result of the performance of his regularly-assigned duties, unless there is an agreement express or implied, to the contrary. (Unless there is an agreement to the contrary, express or implied).
Business information that represents some-thing of economic value, has required effort or cost to develop, has some degree of uniqueness or novelty, is generally unknown to the public, and is kept confidential.
A plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it.
Also extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having commercial value.
Trade secret
Trade secret protection begins by:
Identifying all the information that must be protected and developing a comprehensive strategy for keeping the information secure.
Trade secret law only protects from what?
Only against the misappropriation of trade secrets.
A trade secret may consist of any formula, pattern, device, or compilation of information that:
- Is used in one’s business
- Gives the employer an opportunity to obtain an advantage over competitors who do not possess the information
Are computer programs considered trade secrets?
If computer programs will be considered a ‘trade secret’, then it would have the effect of giving the employer the right to restrain their programmer to reveal the code and use them outside.
While the Philippines’ IP law includes protection of undisclosed information as IPR, it does not define it, which:
Leaves uncertainty around the protection of trade secrets.
The Philippine Intellectual Property Code defines this as any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.
Trademark
Two requirements for a sign to be considered a trademark under the IP Code:
A mark (1) must be a visible sign and (2) must be capable of distinguishing one’s goods and services from those of another.
