What is intellectual property? Why should it be protected?

What is IPR?

Property created with the use of intellect and out of the intellectual labour of the creator\inventor. The idea and expression of such idea is his own original work and out of his ‘skill and labour.’ Although idea per is cannot be protected.

Protecting Intellectual Property Rights in Vietnam

What is the nature of IP and why it is a ‘property’?

The intellectual property is intangible i.e., it has a physical embodiment or an expression of the creation but not necessarily. It differs from movable and tangible properties like one’s land or house. The intangible properties are incorporeal in nature. Some examples of IP include book, poem, working model/invention, plant varieties from an area etc.

It is called a property for the very reason that it has a ‘commercial value’ and industrial utility to it. A property can be sold, altered and enjoyed possession by the owner and the same applies to one’s IP. Such rights are not fundamental but statutory. But the legal implications governing the controlling of IP protection gives that exclusive right to enjoy the same for each IP right for a limited period.

Why one needs IP protection?

The purpose behind the statutes governing the IPR field, have only one objective of protecting the original work of the creator for a limited time to respect his skill and creativity in spending time to create or invent something. It is to regard his right to have ownership over such property. But reasonable limitations include a fixed time to have ownership and also to prevent monopoly.

Often, pharma companies charge higher prices on patented drugs cutting access to medicine for the public, thus, exceptions like compulsory licensing and fair use are existing as limitations. ‘Public purpose’ is a ground to determine the extent of exercising the exclusive rights. It is in a way, an industrial property, making it useful for country’s economy and commerce.

Types and classification of IP rights

-Patent: granted to inventions by the inventor. The conditions are that it has to have novelty, industrial utility and different from existing models and not just a mere re-arrangement. The patentable inventions can be either a process or product patent, which is usually granted for a term of 20 years (changes according to different countries). It creates a certain monopoly over the patented item.

-Copyright: right granted to expression of ideas in physical form or in other expressed terms. Artistic, dramatic, musical and written works of a creator. The registration of the same is not necessary in some countries. The work has to be original and out of his own creativity. International term of copyright period extends to 50 years after the creator’s death as well.

-Trademark: a mark, sign, form, an arrangement or combination of the colours or lines, name of a product, which makes it distinguishable from other products and to identify the brand name. It mainly helps to promote the company brand and to help the public differentiate the same from others. It is synonymously called as service marks.

-Industrial Design: The pattern, structure, that forms the product. The intricate and aesthetic features of the product that makes unique from others. It must not be deceptively similar to another design or used before applying for registration. It is different from copyright and trademark.

-Geographical indication & other rights: A plant variety or a type of food that is located in a particular geographical locality or a part of country, be under geographical indication. It helps to identify the origin of such product or type of product to the people. Other IP rights include trade secrets and undisclosed information.

-Trade secrets, Non-disclosure and license agreements are also part of IP protection.

Author: Swathi Gunasekaran

Source: Quora

If you are looking for an experienced IP attorneys in Vietnam to help you with your patent application, you should visit ANT Lawyers.vn. We are supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

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How does a patent differ from a copyright?

Copyright protects a creative work, fixed in a tangible medium. Patents protect an invention, including a method, article of manufacture, machine, drug, etc.

Patent Attorney in Vietnam

Copyright is automatic, as soon as you create the work. It can also be registered by providing a copy of your work to the Library of Congress (in the US) or similar entity in other countries, which provides you with the ability to sue for statutory damages for infringement, collect attorney fees, etc. Copyright is cheap, around $35 to register a work, and lasts for the lifetime of the author plus 70 years. BUT, it doesn't stop someone else from making the same exact work independently - only if they actually COPY you. For example, if someone lived in a cave for years and independently, without ever hearing about Harry Potter, wrote a story about a boy wizard with a scar who visits Bogwarts Castle and fights the unmentionable one, that wouldn't infringe Rowling's copyright (but good luck proving that they never heard of it).

Copyright is very useful where your specific work is desired, such as a AAA game, a famous work of art or novel, a tv show or movie, music from a specific artist, etc.  It isn't useful where consumers want the functionality, like "a mobile match-3 game" or "a word processor" but don't care who it comes from. For example, copyright is great for protecting "Star Wars: The Force Awakens" because consumers want that rather than the knock off "Space Game: Power Wakes Up"... but it isn't that helpful for protecting "Tiny Tower" vs. "Dream Heights" vs. "Sim Tower" vs. "Tower Game", etc., etc.

Patents, on the other hand, protect implementations of the underlying idea. A patent prevents others from making, using, selling, or importing the invention, even if they independently create it.  Patents prevent those knock offs - it doesn't matter what you call your machine; if it does the same thing, in the same way, with the same parts, as someone's patented machine, it infringes. Patents are much more powerful than copyright in that way... but they only last 20 years from the date of filing, and can cost between $10-25k to obtain, sometimes more, and it may be several years from filing before they are issued. Patents are examined by patent examiners with experience in the relevant industry, and are only issued when the examiner is assured that the invention is new, non-obvious, and sufficiently described in the patent application to enable another person of skill in the art to make and use the invention.

Patents and copyrights can cover the same thing - software is copyrighted as soon as it's written, since it's a work of creativity; but it can also be covered by a patent on the functionality. This overlapping protection is useful for protecting against different types of infringement, from piracy to competitors.

Related post: What is difference between copyright and patent?

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

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Intellectual Property Law: What makes a patent valid?

The validity of a patent can be relevant in two ways:

First, someone can challenge the validity of your patent and second, you can question the validity of theirs. Patent validity is an important question when litigation is being brought or considered.

Patent Attorney in Vietnam

A patent is a set of rights granted by a government that protects an invention. If a patent is given to the applicant, they have the right to block others from making, selling or importing their invention into the country for twenty years from the date of filing.

Prior Art is any evidence of your invention existing before the date you filed your patent application. Prior art can be evidence that an invention – the same or similar to yours – has been demonstrated to the public, written about in a magazine or that there are existing patents related to your invention.

Any references used to invalidate a patent must be from before the date of priority. The date of priority is when you filed your application. For prior art to be relevant, it must have existed before this date.

When you apply for a patent, you are obliged by law to report all known relevant references. Your patent application will also prompt the patent office to perform a prior art search to determine if the invention is novel and non-obvious.

If another inventor or company believes that prior art exists, which would invalidate your patent, they may start litigation against you.

After Infringement:

If you have infringed someone else’s patent, there are a few options open to you depending on how willing the patent holder is to negotiate. The patent holder may agree to sell you the patent or license it out to you for a fee.

Intellectual property laws have been constructed to encourage companies to cross license and come up with solutions to infringement that result in innovations and products. If you have infringed a patent, particularly in error, you stand a good chance of coming to an agreement with the patent owner.

A Blocking Patent:

 If no agreement can be reached with the patent owner, then their patent becomes a blocking patent. It blocks or prevents you from manufacturing or selling your invention. In this case, you need to take steps to invalidate their patent.

Patent Validity Search:

A patent validity search is a search of prior art designed to examine all possible areas where information might be found. The search is guided by information about the target patent; the patent which is stopping you from operating.

Claims Mapping:

Claims chart mapping is an infringement analysis. This process involves examining the claims in a patent.

Unlike the invention description, the patent claims can change throughout the process of the application. Inventors usually start off claiming a lot of protection across broad ideas and are told they can’t get that level of coverage. They then narrow down what they are claiming legal protection for in the patent.

An examination of the claims is essential to understand where the prior art may be relevant. This is true whether you are seeking to prove that your patent does not infringe anyone else’s rights or if you think someone else has infringed yours.

Infringement of Your Patent:

A patent validity search can interchangeably be called an invalidity search. The same extensive search for prior art is undertaken but with a view to proving a rival patent invalid rather than ensuring the validity of your own.

In this case, you want to examine any prior art that may invalidate the claims made in the target patent.

NPE Demand Letters:

A demand letter is a letter putting forward a legal claim and demand for restitution. This could come from a rival company who think you have infringed their intellectual property rights, or it could be from a non-practicing entity or NPE.

NPE companies have no products or services. They make money by acquiring intellectual property rights such as patents and using them as a basis for legal action.

NPE companies are bad news because they are only after financial gain and cannot be appealed to on any other grounds. The best way to counter these companies is to deter them from choosing to go after you.

Having a strong and well-protected intellectual property portfolio is central to this strategy. A good claims chart mapping process is in important in this case also.

The Importance of Validity Searching:

Validity searching improves your business on some levels. It can help you to prove infringements and refute accusations of infringements. Both of these actions build the strength of your intellectual property portfolio and make it more valuable. This is true whether you want to use, sell or license your intellectual property.

A strong reputation can be built upon this strong intellectual property portfolio. If rivals and NPEs think you are a soft target, they will commit resources and time to trying to find a problem with your patents. If you have a highly defensible patent portfolio, you will reduce the amount of people who see you as a worthwhile target.

Conduct a Patent Validity Search to:

- Invalidate a blocking patent

- Establish deterrents to demand letters from NPEs

- Carry out due diligence on a patent, patent portfolio or pending patent application.

Source: Quora

If you are looking for an experienced IP services in Vietnam to help you with your IP application, you should visit ANTLawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your IP.

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