Industrial property is one of two subsets of intellectual property (the other being copyright), it takes a range of forms, including patents for inventions, industrial designs (aesthetic creations related to the appearance of industrial products), trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.
In United States legal terminology, industrial property refers to patented goods, trademarks, copyrights, and industrial designs that are owned by a business, and that the business may exclude others from using.
History and context
Early patents The earliest patents were recognitions for exclusive exploitation or exclusive practice of new processes or creations; which are considered to have been granted in Europe in the fourteenth century. Several possible origins are attributed to the first patents: the Republic of Florence, the Republic of Venice or, according to some authors, the Kingdom of England. In all cases the main motivations seem to have been the introduction of "new arts", the attraction of more skilled craftsmen and the transfer of technology in order to reduce imports and increase the exports of their territories.
The industrial property researcher Maximilian Frumkin considers that the first invention patent was granted in Florence in 1421 to the famous architect Filippo Brunelleschi, to whom the Florentine state granted an exclusive right, with a duration of three years, to build and use an apparatus of his invention to transport heavy loads on the Arno and other rivers, excluding any other person from such uses under penalty of burning any invention other than the architect's in case of contradiction of the prohibition. The invention was a boat intended to transport the marble needed for the construction of the dome of the Florence Cathedral, Brunelleschi's greatest work. In practice, the boat was not built until 1427 and was known as "Il Badalone."
Later, during sixteenth century, the patent history had a new development with the recognition given by queen Elizabeth I to the inventor Jacobus Acontius, who asked for a prohibition against any use of his invention but founding his petition on his "rights and labors," providing a shift in the recognition of industrial property as a kind of natural right.
Modern age Industrial property is not rigidly defined; it is a portion of the superordinate concept of intellectual property (intangible property) that excludes copyright. The purpose of industrial property law is to regulate the rights to certain inventions and industrial or commercial creations. It is regulated on a state, community and international level.
The importance of protecting industrial property was recognized in the Paris Convention for the Protection of Industrial Property in 1883 and the Berne Convention for the Protection of Literary and Artistic Works in 1886. Both treaties are administered by the World Intellectual Property Organization.
The Convention Establishing the World Intellectual Property Organization (1967) does not seek to define intellectual property, but lists the following as protected by IP rights:
literary, artistic and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.” The TRIPS Agreement, adopted in 1995, requires to World Trade Organization members to provide protection and recognition to trademarks (including service marks); geographical indications (including appellations of origin); industrial designs; patents (including the protection of new varieties of plants); the layout-designs of integrated circuits; and undisclosed information including trade secrets and test data.
Other international instruments have created systems of international registration for industrial property signs, such as the Lisbon Agreement (1958) and the Madrid Protocol (1989), both administered by the World Intellectual Property Organization.
Countries generally have laws to protect IP for two main reasons: To give statutory expression to the rights of creators and innovators in their creations and innovations, balanced against the public interest in accessing creations and innovations; To promote creativity and innovation, so contributing to economic and social development.
Patents for invention
Patents, also referred to as patents for invention, are the most widespread means of protecting technical inventions. The patent system is designed to contribute to the promotion of innovation and the transfer and dissemination of technology, to the mutual advantage of inventors, users of inventions and the general public. Once a patent is granted by a state or by a regional office acting for several states, the owner of a patent has the right to prevent anyone else from commercially exploiting the invention for a limited period, generally 20 years. The patent applicant must disclose the invention in order to obtain protection, and their rights can be enforced only within the territory in which the patent was granted.
Definitions Most laws dealing with the protection of inventions do not actually define what an invention is. A number of countries, however, define inventions as new solutions to technical problems. The problem may be old or new, but the solution, in order to be considered an invention, must be a new one. Merely discovering something that already exists in nature will not generally qualify as an invention; an adequate amount of human ingenuity, creativity and inventiveness must be involved. But an invention need not be technically complex: the safety pin was an invention that solved a “technical” problem.
Exclusive rights By granting an exclusive right, patents provide incentives, offering inventors recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which in turn contributes to continued enhancement of the quality of life. In return for the exclusive right, the inventor must adequately disclose the patented invention to the public, so that others have access to the new knowledge, leading to further innovation. The disclosure of the invention is thus an essential consideration in any patent granting procedure. The word “patent”, or “letters patent”, also denotes the document issued by the relevant government authority. In order to obtain a patent for an invention, the inventor, or often the inventor's employer, submits an application to the national or regional patent office concerned. In the application, the applicant must describe the invention in detail and compare it with previous existing technologies in the same field in order to demonstrate that it is new.
Patentability Not all inventions are patentable. Patent laws generally require that an invention fulfill the following conditions, known as the requirements or conditions of patentability:
Patentable subject matter: The invention must fall within the scope of patentable subject matter as defined by national law. This varies from one country to another. Many countries exclude from patentability such subject matter as scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, methods for medical treatment (as opposed to medical products), and any invention where prevention of commercial exploitation is necessary to protect public order, morality or public health. Industrial applicability (utility): The invention must be of practical use, or capable of some kind of industrial application. Novelty: The invention must show some new characteristic that is not known in the body of existing knowledge (referred to as prior art) in its technical field. Inventive step (non-obviousness): The invention must show an inventive step that could not be deduced by a person with average knowledge of the technical field. Disclosure of the invention: The invention must be disclosed in a clear and complete manner in the patent application to be carried out by a person skilled in the art (a person conversant in the field of technology concerned).
The conditions of novelty and inventive step must be fulfilled by a certain date, generally the date on which the application is filed. An exception to this rule, covered by an applicant's right of priority, is regulated by the Paris Convention. The right of priority means that, having filed an application in one member country of the Paris Convention, the same applicant (or their successor in title) may, within a specified time period, apply for protection for the same invention in any of the other member countries. These subsequent applications will not be invalidated by reason of any acts occurred between the filing date of the earliest application and the subsequent applications.
For example, if an inventor first files an application for patent protection in Japan, and later a second application, with respect to the same invention, in France, it is sufficient that the conditions of novelty and non-obviousness existed at the date on which the Japanese application was filed. In other words, the later, French application retains priority over any applications relating to the same invention filed by other applicants between the date of the inventor's first and second application. This is subject to the period between the two dates not exceeding 12 months.
Utility models
Although not as widespread as patents, utility models are also used to protect inventions. The rights conferred by utility models are similar to patent rights. Utility models are found in the laws of more than 50 countries, as well as in the regional agreements of the African Regional Intellectual Property Organization (ARIPO) and the African Intellectual Property Organization (OAPI). In addition, certain countries, such as Australia and Malaysia, provide for titles of protection called innovation patents or utility innovations which are similar to utility models. Other countries, like Ireland and Slovenia, have a short-term patent equivalent to the utility model. The expression “utility model” refers to a title of protection for certain inventions, such as inventions in the mechanical field.
Utility model protection is usually sought for technically less complex inventions or for inventions that have a short commercial life. The procedure for obtaining protection for a utility model is usually simpler than that for seeking patent protection. Substantive and procedural requirements under the applicable laws vary widely among the countries and regions with a utility model system; however, utility models usually differ from patents for invention in the following main respects: The requirements for acquiring a utility model are less stringent than for patents. While the “novelty” requirement must always be met, that of “inventive step” (or “non-obviousness”) may be much less evident or absent altogether. In practice, protection for utility models is often sought for innovations of an incremental nature that may not meet patentability criteria.