Test #1 Flashcards
What is intellectual property?
- Intellectual property (IP), allows people to own their creativity and innovation in the same way that they can own physical property.
- Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as:
- Musical, literary, and artistic works (Copyright law)
- Discoveries and inventions (Patent Law)
- Words, phrases, symbols, and designs (Trademarks)
What are the 3 parts to Intellectual Property?
- Copyright Law
- Patent Law
- Trademarks
What are the 3 Acts pursuant to intellectual property?
- Copyright Act
- Patent Act, and
- Trademarks
What are the objectives of the acts?
- Owners of intellectual property improve society and should therefore be compensated
- Without legal protection for their work for a certain period of time, people may not invest the time and money into creating something for us
Protection under the Patent Act is limited by how many years?
Exclusive Rights - After 20 years, patents become public domain
Define an invention
means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter
Know what CIPO stands for?
Canadian Intellectual Property Office
What is the 3 basic criteria for patentability
- The invention must show novelty (be the first in the world)
- It must show utility (be functional and operative)
- It must show inventive ingenuity and not be obvious to someone skilled in that area
What is Tangeable Items? (saleable/tangible)
A patent is granted only for the physical embodiment of an idea (for example, the description of a possible door lock) or for a process that produces something tangible or that can be sold. You cannot patent a scientific principle, an abstract theorem, an idea, some method of doing business, or a computer program per se.
Know this about the Monsanto Case.
know that you are able to patent a organism. And that the infringement, even if it’s innocent, is still an infringement even though it was an accident.
What are the 6 things that must be included in a patent application?
- A petition,
- A description of the invention,
- An abstract,
- A claim or claims,
- Any drawing referred to in the description, and
- The filing fee.
Define a petition.
The petition is your formal request for a patent. In it you ask for a patent, list the applicant(s) and inventor(s), give the name of your patent, and identify your agent if you have one.
What is a Description?
In a complete description, you must state how the invention works and how it is made. Each part of the invention and the way in which the parts fit together need to be described. In short, once the patent is no longer in force, someone must be able to duplicate your invention based solely on the description.
What is an Abstract?
The abstract is a short technical summary of your invention that includes a statement of the use of the invention. It is primarily used for searching purposes.
What is a Claim?
The claims form the legal basis for protection. You can (and probably should) have several claims for each patent.
Define Drawings.
Drawings must be included with your application, if the invention can be illustrated, so that it is easier to understand the patent. Drawings must be legible, labelled, and referred to in the description and be electronically compliant.
What are the steps to obtain a patent in Canada?
- Determine if you need a patent agent. (Note: if you choose to have an agent, they may assist you in the remaining steps.)
- Do a preliminary search (if there is an existing patent, consider ending the process now)
- Prepare a patent application
- File your application
- Request examination
- Examiner does search for prior patents and studies your claims.
- Examiner either approves or objects to the claims
- Respond to the examiner’s objections and requirements
- Examiner reconsiders and either approves or calls for further amendments
Explain the role of a patent agent?
- Preparing a patent application can be a complex task.
- Patent agents are professionals with considerable experience in drafting applications and navigating the patent process
- They help ensure that you get all of the rights to which you are entitled
What is an infringement?
- Unauthorized use of a patent based on the language of the claims
- A determination is made of the essential elements of the claims
- Happens if someone makes, uses, or sells your patented item without your permission in a county that has granted you a patent, during the term of the patent.
What are the defenses of Infringement?
The defendant may argue:
- that infringement did not occur, or
- may attack the validity of your patent
- The court will decide who is right, based largely on the wording of the claims.
How did the Copyright Act change in 2012?
- Bill C-11 happened in 2012
2012 – Copyright Modernization Act
What does SOCAN stand for?
• The Society of Composers, Authors and Music Publishers of Canada (see slide 29)
What are the steps to filing a copyright?
- Filing,
- Review,
- Registration,
- Certificates of correction,
- Grants of interest (assignment or a license),
- Extracts from the register, photocopies, and certified copies
Define an assignment.
occurs when you transfer part, or all of your rights to another party. The assignment may be for the whole term of the copyright, or for a certain part of it.
Define a licence.
Gives someone else permission to use your work under certain conditions, while allowing you to retain ownership and maintain your rights
Define assignment and license
Assignment – occurs when you transfer part, or all of your rights to another party. The assignment may be for the whole term of the copyright, or for a certain part of it.
Licence – Gives someone else permission to use your work under certain conditions, while allowing you to retain ownership and maintain your rights
What are the steps to filing a copyright?
- Filing,
- Review,
- Registration,
- Certificates of correction,
- Grants of interest (assignment or a license),
- Extracts from the register, photocopies, and certified copies (see slide)
What is the responsible office for administering copyrights, patents and trademarks?
Canadian Intellectual Property Office (CIPO)
What does novelty mean with regards to patents?
In order to receive a grant for your invention you must be the original inventor (or the assignee of the invention), and it must be the first such invention in the world.
Explain “Fair Dealing”
- A statutory exception to copyright infringement. It is a defence, with the burden of proof upon the defendant. (3 years)
- To qualify under the fair dealing exception the dealing must be for a purpose set out in the Copyright Act of Canada
Is copyright protection automatically given?
- Copyright protection is automatic; owner; term
- Registration is not required. However in the case of copyright infringement, registration raises a legal presumption as to ownership of copyright and that there is copyright in a work
- Registration constitutes notice to the public that copyright exists in the work (a prerequisite to certain legal remedies)
What does a patent application include?
- A petition,
- A description of the invention,
- An abstract,
- A claim or claims,
- Any drawing referred to in the description, and
- The filing fee.
Define a Copyright. How long does it last?
- A poem, painting, musical score, performer’s performance and a computer program are all valuable creations worth protecting
- Copyright grants the sole and exclusive right to a creation
- Lasts for 50 years after death
Explain Copyright Infringement.
- Copyright is infringed whenever a person does something which is within the exclusive right of the copyright owner.
- Most copyright infringement occurs as the result of the reproduction in a material form of any substantial part of a work in which copyright exists.
- Intent not necessary – innocent infringement may make you liable for damages
What are the remedies for copyright infringement.
- Remedies for copyright infringement include awards of damages or injunctions to prohibit infringing conduct.
- Copyright owners can opt to receive damages based on actual damages suffered, including lost profits, or prescribed statutory damage amounts.
- In addition, the Copyright Act creates criminal offences and imposes penalties which include, for indictable offences, fines of up to $1 million and imprisonment for a maximum of five years.
What are the 6 steps to filing a copyright?
- Filing,
- Review,
- Registration,
- Certificates of correction,
- Grants of interest (assignment or a license),
- Extracts from the register, photocopies, and certified copies (see slide)
What is patent infringement?
- Patent infringement happens if someone makes, uses, or sells your patented item without your permission in a country that has granted you a patent, during the term of the patent.
- This is an unauthorized use of the patent
- Based on the language of the claims, a determination is made of the essential elements of the claims. If all of the essential of a claim are present in an unauthorized use, there is infringement.
Patent infringement – discuss process if taken to court
- If you believe your patent is infringed, you may sue for damages in an appropriate court or elect for an accounting of profits
- The defendant may argues that infringement did not occur, or may attack the validity of the patent
- The court will decide who is right, based largely on the wording of the claims
- If what the defendant is doing is not within the wording of the claims of your patent, or if the patent is declared to be invalid for any reason, there is no infringement
- *When you have a Canadian patent, you will be able to sue infringers for all damages sustained after the grant, you may sue for reasonable compensation for infringements that occurred in Canada between the date your application was made available for public inspection (18 months after filing or priority) and the date of the grant.
