intellectual property rights … and more!...ip in business every business possesses intellectual...

Intellectual Property Rights … and more!Fredrik Edman PhD, LU Innovation & Dept. Electro- och information technology

Intellectual Property in Business

Is intellectual property important in building a successful business?

It depends!!

IP in Business

Every business possesses intellectual assets whether they are aware of it or not.

When a business is establishing its presence in the marketplace, protecting, managing and having knowledge about its intellectual property is critical as it can mean the difference between success or failure!

IP in Business

» Often the largest asset portfolio that a company has, with a greater value than offices or factories.

» It is also playing an increasingly significant role in mergers and acquisitions.

Example: Google acquired Motorola for $12.5 billion before selling the company to Lenovo (minus its valuable IP in smartphone technology) for $2.91 billion.

IP in Business

» Initially companies need to understand what and how they can protect assets.

» Applying for protection for ideas can be both time consuming and expensive.

» Companies need to judge this investment against the rewards they might receive.

» They also need to understand which ideas they can protect and which they cannot.

IP in Business

So let’s begin with the Intellectual Assets!!

Intellectual Assets

…any ideas around?

…maybe no ideas but plenty of intellectual assets!

What about this scenario! …any ideas around?

No, just applying and evaluating mynew test method.

…maybe no ideas but plenty of intellectual assets!

Research dataReputation

Knowledge/skillsPersonal brand

Test methodTest materialPublications

From Knowledge to Intellectual Property

Software

Databse

Invention

ProcessPatents

Software licences

Manual

Database protection

Knowledge

Manuscript

DataDocumentation

Intellectual Assets Intellectual Property

IP Law protects Intellectual Property!

IP law consists of several and overlapping legal diciplines, each with their own characteristics and terminology.

Different types of IP law

» Patent law

» Copyright law

» Trademark law

» Design rights

» (Trade secret laws)

(also others such as database, unfair competition, etc.)

Patents

The basic patent deal!

Revealinvention

Get a time limited

exclusivity

… so that others can learn from it and improve upon it!

What can be patented?

Inventions that solves a technical problem and are…

• New to the world (no previous public notice)

• Inventive (i.e. not an "obvious" solution)

• Susceptible of industrial application

NOT:• Mere ideas not reduced to practice• Software as such (but algorithms that achieve technical results)• Business methods• Medical therapies, plant varieties, etc. • …

What not to do when considering filing a patent application

• No publication prior to filinge.g. no article, press release, conference presentation/poster/proceedings or blog entry

• No sale of products incorporating the invention prior to filing

• No lecture or presentation prior to filing except under a non-disclosure agreement (NDA)

• Seek professional advice as soon as possible!• File before others do!

NDA

Business things to consider before patenting!Is there a market?

Does it already exist?

Beware of having an unrealistic ideaof the value of the invention.

Rights conferred by the patent

» Prevent others from making, using, offering for sale, selling or importing infringing products in the country where the patent was granted.

» Right to assign or transfer ownership of a patent ( i.e. sell the rights) or conclude licensing contracts.

» The rights last for up to 20 years from the date of filing of the patent application.

Rights NOT conferred by the patent

» The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right. The patent only grants the right to exclude others from making, using, offering for sale or selling or importing the invention.

» Since the patent does not grant the right to make, use, offer for sale, or sell, or import the invention, the patentee’s own right to do so is dependent upon the rights of others and whatever general laws might be applicable.

B

Rights NOT conferred by the patent

» A patent does not provide a guarantee of commercial success. All it shows is that the idea in question is new, industrially applicable and inventive. It is up to the owner to develop the business side.

» The purpose of patents is not to establish long-term monopolies. They are granted for a limited period, which can only be extended in the case of medicines and pesticides which have to undergo lengthy clinical trials for safety reasons.

Industrial Design Rightsor Design Rights

What does a design right protect?

» Design right or industrial design right protects the appearance of a product or part of a product.

» Design right gives you protection for the internal or external shape or configuration of an original design.

» Only the aesthetic/visual form of a product can be filed and protected as an industrial design, not the technical aspects (patents) nor any distinguishing features (trademarks)!

Design is powerful!

What computer brand?

What company?

What company?

What car brand?

What brand?

Shoe brand?

Design is powerful!

Apple!

Sony!

Bang Olufsen?

Honda!

Adidas!

Absolute Vodka?

Requirements for Protection

» A design shall be protected by a Community design to the extent that it is new and has individual character.

» Must be visible during normal use!

"Normal use" shall mean use by the end user, excluding ‘ maintenance, servicing or repair work.

OK! NOT OK!

What can be protected?» Examples of what can be design protected are

packages, icons, fonts, web interface, printed circuitboard, etc.

There are two types of design protectionRegistered Design

» Acquired for instance through registration at OHIM or at the Swedish patent office PRV

» Up to 25 years of protection (15 years for spare parts), renewal with fees every five years

» Strong protection!

Unregistered Design (Inspired by UK 10 year unregistered design right; internationally covered by the copy right)

» Acquired automatically when made available to the public

» Similar to Copyright! (independent identical creation = no infringement!)

» 3 years of protection (no fees or renewals necessary)

» Weak protection!

Example: Graphic symbols

» Symbols used by the Swedish State Liquor Monopoly for indicating suitable foods for beverages.

Design has becomemore and moreimportant in business!

Samsung v. Apple

Trademarks

What is a Trademark?» A kind of visit card (a brand name) that promotes the image of a

company and its range of goods and services.

» “A sign distinguishing goods or services produced or sold by one enterprise (from those of other enterprises)”.

» A trademark is any mark, sign or indication that is used for indicating goods or services in commerce.

» Trademark function: distinguish gods and services, brand image, build goodwill, be a means of competition and build economic value.

Logo Quiz

What companies?

Logo Quiz

Different types of Trademarks» Words IKEA

» Logos

» Slogans I’m with stupid

» Letters/numbers 3

» Personal names ELIN

» Sounds

» Shapes of goods or their packaging

» Colours

» Smells (newly cut grass)

» Moving marks

» 3D marks

Requirements for Protection

» Distinctiveness

– capable of distinguishing the goods or services of one undertaking from those of other undertakings

Trademark protection

» Trademarks are protected for specific goods and/or services– Included in a registration– Acquired distinctiveness

» International classification (Nice classification)– Used by most countries (>80)– Classes 1-34 goods– Classes 35-45 services

Term of protection» Usually 10 years at a time and can be renewed indefinitely.» Some countries require declaration of use / intention to use.

Estimated Brand Value 2018

Relation Trademark & Domain Names

Function• As a Trademark – indication of origin, identifier on the market.

• As a Domain name – easy & convenient access to a website.

Problems relating to IPR• Cheap! Issued by private companies (or registrars) on a “first come, first served” basis, requiring only the payment of a small fee.

• No examination! The registrars are not required to ensure that domain names includingtrademarks are purchased only by trademark owners.

Using Your Trademark

» Use symbols ® or TM or SM.

» Collect and keep evidence of use.

» Don’t conjugate - risk for degeneration.

– Make sure also others (employees, partners) use your mark correctly.

Examples of Infringement

Copyright

Copyright

» "Copyright" is a protection that covers published and unpublished literary, scientific, and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. This means that if you can see it, hear it, and/or touch it -- it is protected.

» Gives a creator of an original work exclusive rights to it, usually for a limited period of time.

» Almost everything that is published, whether electronically or not, is copyrighted. In general, a work is copyrighted when it is created, and it is not necessary to apply for copyright.

» Protection does not extend to facts, concepts, ideas as such, but appliesto the author’s expression of those (in a tangible form).

The symbol © indicates that a work is copyright protected. However, in Sweden it has NO leagal function.

Rights Under Copyright Law» Economic rights – (usually transferrable)

Reproduction: right to make copies of the work in any manner or form.Communication to the public: transmission, public performance etc.Adaptation, translation etc.

» Moral rights – (usually not transferrable)Paternity: right to be mentioned as the author in connection with the work.Integrity: right to object to any mutilation, distortion etc. of the work that is contrary to the author�s honor or reputation as such.

Examples Copyright

Literary works, musical works (including any accompanying words), dramatic works, including any accompanying music, pantomimes and choreographic works, computer databases, pictorial, graphic, sculptural works, motion pictures and other audiovisual works, architectural works, sound recordings, etc.

What is not Copyrighted

» Works that have not been fixed in a tangible form of expression; for example, improvisational speeches or performances that have not been written or recorded.

» Titles, names, short phrases and slogans; familiar symbols or designs; variations of typographic ornamentation, lettering or coloring; listing of ingredients or contents.

» Ideal procedures, methods, systems , processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation or illustration.

Term of Protection

• Starts automatically upon the creation of a work. No registration or indication that the rights are reserved is necessary.

• In most of the world, the default length of copyright protection is the life of the author plus either 50 or 70 years.

Copyright Infringement:Prymachenko v. Marimekko

New Movements in Copyright

» Before it was only two sides to Copyright:

- "all rights reserved" full copyright

- "no rights reserved” public domain

Now new concepts of Copyright have emerged…

Open Source Material» User-generated content (UGC) is defined as

"any form of content such as blogs, wikis, discussion forums, posts, chats, tweets, podcasting, pins, digital images, video, audio files, and other forms of media that was created by users of an online system or service, often made available via social media websites“

Creative Commons

» Creative Commons licenses: A way of showing what you are allowed to do with the material. It consist of four major condition modules:

- Attribution (BY)- Share Alike (SA)- Non-Commercial (NC)- No Derivative Works (ND)

» Six major licenses of the Creative :

Attribution (CC BY)

Attribution Share Alike (CC BY-SA)

Attribution No Derivatives (CC BY-ND)

Attribution Non-Commercial (CC BY-NC)

Attribution Non-Commercial Share Alike (CC BY-NC-SA)

Attribution Non-Commercial No Derivatives (CC BY-NC-ND)

Open Source

» Open-source software (OSS) is computer software with its source code made available with a license in which the copyright holder provides the rights to study, change and distribute the software to anyone and for any purpose.

» Open-source software is developed in a collaborative public manner.

OSI Approved LicensesThe following licenses have been approved by the OSI via the License Review Process. » Academic Free License 3.0 (AFL-3.0)» Affero GNU Public License: See "GNU Affero General Public License 3.0 (AGPL-3.0)"

» Adaptive Public License (APL-1.0)» Apache License 2.0 (Apache-2.0)

» Apple Public Source License (APSL-2.0)

» Artistic license 2.0 (Artistic-2.0)» Attribution Assurance Licenses (AAL)

» BSD 3-Clause "New" or "Revised" License (BSD-3-Clause)» BSD 2-Clause "Simplified" or "FreeBSD" License (BSD-2-Clause)

» Boost Software License (BSL-1.0)

» …» Frameworx License (Frameworx-1.0)

» GNU Affero General Public License v3 (AGPL-3.0)» GNU General Public License version 2.0 (GPL-2.0)

» GNU General Public License version 3.0 (GPL-3.0)

» GNU Library or "Lesser" General Public License version 2.1 (LGPL-2.1)» …

» zlib/libpng license (Zlib)

Warning Contagious Licenses! Example OpenL2TP License

» The GPL license is contagious in the sense that when a program is linked to a GPL program, all the source code for all the parts of the resulting product must also be released under the GPL.

» If you do not follow this GPL requirement, you break the license terms and forfeit your right to use the GPL program altogether.

» You also risk damages.

Trade Secrets

What is a trade secret?

» Trade secrets may be tangible or intangible and can consist of a wide variety of devices, documents and experiences

» They exists more in the perception of their owner than as an actual combination of elements

» Not all such elements need to be secret


» Examples of what that can be kept as a trade secret

- formulas (e.g. product formula)

- processes (e.g. manufacturing process)

- compilations (e.g. customer database)

- methods (e.g. business method)


» There are three common factors in all trade secret definitions. They are three requirements that must be met for enforceable trade secrets to exist. The information must be;

§ a secret in the sense that it is not generally known in the trade,

§ valuable vis-à-vis the competition that does not possess it and

§ the subject of reasonable efforts to safeguard and maintain secrecy.

Patent Searching

Why do a patent search??

Patents are a unique source of technical information!

Patents anticipate technical literature and commercial use:

Invention Patent Elsewhere Delay

Punched cards 1889 1914 25

Television 1923 1928 5

Jet engine 1936 1946 10

Cast iron 1939 1947 8

Much information only available in patents

Published elsewhere

(IEEE, Internet etc.)

Publishedin patents

80% found only in patents!

25% of all R&D efforts ...

… are wasted each year on inventions that have already been invented.

Don't start your R&D until you have done a search!

Why do a patent search?? (cont.)

GB-A-2365393

US-A-1833019Example

Solutions found in patent documents

10%Protected

90%Free to use

You can find many great solutions for free!

Patent Classification Systems

Patent Classification Systems (cont.)

(51) International Patent Classification

(52) US Patent Classification

Patent Classification Systems (cont.)

» Patent classification schemes are used to organize and index the technical content of patent specifications.

» Patent classification schemes are constructed and maintained by and for patent examiners and their primary purpose is to help the examiners in their work.

» As part of the examination process an examiner will assign patent classification codes to the specification, thus the classified collection of patent documents is growing constantly.

» Using patent classification as part of a search to identify patents in a particular field can help the non-expert searcher to focus and refine his search and produce a useful set of references.

Patent Classification System (cont.)

There are several different classification systems

– Cooperative Patent Classification (CPC)

– The International Patent Classification (IPC)

– ECLA

– US patent classification (USPC)

– British classification

– ………

CPC Sections

Format of CPC symbols

A23G 9/0202Complete group symbol; consists of different components

A Section (A, B, ... H)A23 Class (any 2 digits)A23G Subclass (any letter)A23G9/00 Main Group A23G 9/0202 Subgroup

Note:•Documents are classified with main group and/orsubgroup symbols

Example of a CPC classification search

Free patent databases

Espacenet – EPOs patent databasehttp://worldwide.espacenet.com/

US patent databasehttp://www.uspto.gov/web/offices/ac/ido/ptdl/step7.htm

Googles patent databasehttp://www.google.com/patents

Engelska synonymerhttp://dico.isc.cnrs.fr/dico/en/searchhttp://thesaurus.reference.com/

PRVs patent databasehttp://www.prv.se/spd/search?lang=sv