Intellectual property, Summaries of Law

Download Intellectual property and more Summaries Law in PDF only on Docsity! KAMPALA INTERNATIONALUNIVERSITY SCHOOL OF LAW NAMES REG.NO BARUGAHE REAGAN 2018-08-00631 NUWAGABA MUNIR 2018-08-00193 MUTESI SHALLON 2018-08-00623 ANDERU TOPISTA 2018-08-00171 WAMALA ISAAC 2018-08-00402 COURSE : LLB COURSE UNIT : INTELLECTUAL PROPERTY 2 YEAR : FOUR SEMESITER : TWO SESSION : DAY LECTURER : MS KAMAMA KULUSUM Patent law Section 2 of the Industrial Property Act, 2014 , patent means the title granted to protect an invention. Black’s law dictionary 8th edition1, defines a patent as the right to exclude others from making, using, marketing, selling, offering for sale or importing an invention for a specified period granted by the federal government to the inventor if the device or process is novel, useful and non-obvious. World Intellectual Property Organization (WIPO) defines a patent as an exclusive right granted for an invention, which is a product or a process that provides, in general a new way of doing something or offers a new technical solution to the problem.. In order for something to be patentable it must be a practical industrial application, must show an element of novelty (some new characteristic which is not known by a person with a average knowledge of the technical field. Section 9 of the industrial property Act, an invention is patentable if it is new, involves as inventive step and is industrially applicable . The same requirement is provided under Article 27 of th de TRIPs agreement. The industrial property Act 20142 defines an invention to mean a solution to a specific problem in the field of technology. Subsection (2) of the same provides that an invention may be or may related to a product or a process. 1 page 1156 2 Section 8(1) Period of protection The Industrial Property Ac5t provides that a patent shall expire at the end of 20 years from the filing date of the application. Once the patent expires its protection ends and the invention is said to have entered public domain meaning that the owner no longer holds exclusive rights to the invention and it becomes available to commercial exploitation by others. Types of patent protection Patent protection can be under 3 types 1) utility patent A utility patent is a patent that covers the creation of a new or improved and useful product, process, or machine. A utility patent also known as a “patent for invention”. Prohibits other individuals or companies from making, using or selling the invention without authorization. When most people refers to a patent, they are mostly referring to a utility patent. 2) Design patent These apply to new original and ornamental designs or an Article or manufacture. The major difference between design and utility patents can be seen in todays computers and phones where, the plastic shell that covers all the working parts is covered by a design patent while all the many working design it has are covered by utility patents. 5 Section 46 3) Plant patents These are granted by any person who has invented or discovered and a sexually reproduced any distinct and new variety or plant including cultivated hybrids and newly found seedlings. Utility models and patent Utility models A utility model is an exclusive right granted by the government for an innovation/ invention, which is either a product or process that offers a new technical solution to a problem . A product or process that is new and is useful can be protected using this system There term of protection is 10 years as per Section 69(3) of the Industrial Property Act 2014. Registration of a utility model is simple and fast and gives the holder the right to exclude others from exploiting the protected innovation / invention Utility models provide protection for incremental improvements to products and process and it is very relevant for small- to medium enterprises such as printing – roller cleaning system, fruit sorting machine, simple bottle cleaning machine among others. Patent A patent, like a utility model is an exclusive right granted by the government for an invention. An invention that is Novel, inventive and industrially applicable may be granted using patent. The term of protection for patents is 20 years per section 46 of the Industrial Property Act. For the patent to remain in force, the patent holder is required to pay annual maintenance fees as provided under Section 47 of the Industrial Property Act , 2014 REQUIREMENTS FOR PATENTS PROTECTION Section 9 of the Individual Property Act 2014 provides that an invention is patentable if it is new, involves an inventive step and is industrially applicable. According to Intellectual Property Law Handbook Tenth Edition by Jeremy Phillips6, a patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say; a) The invention is new/existence of an invention b) It involves an inventive step c) It is capable of industrial application d) Novelty In the case of PBS Partnership V Controlling Pension Benefits System (2001)7 court observed that before a grant of a patent can be made, there are three basic requirements of novelty, inventive step and industrial application. NOVELTY 6 Page 6 7 OTEP 441(Official Journal of EPO) date or where applicable the priority date of the application and if it was by reason or in consequence of acts committed by the applicant or his predecessor in title or an evident abuse communicated by a third party in relation to the applicant or his predecessor in title. As such, it is important to note that prior art is lost if disclosure is proved and this may be under 3 main instances; a) Printed Publication. Under this description of an invention maybe published in a writing or in publication but this must be in a tangible format and they are in most cases be a physical carrier of the information which makes the subject available to the public. b) Oral disclosure. The description of the invention in words spoken in place (not necessarily recorded) will also amount to prior art at that invention in question. c) Disclosure by use. This includes the use of the invention in public or putting the public in a position that enables them to know about the invention. In the case of Windsurfing International Inc v Tabur Marine10 it was highlighted that a product which preceded the patent would infringe or affect the right of the patent if it surfaced at a later date. Prior art was deemed to have happened under the act of the use with the publication. The case points out that its only public information that are taken into account but no matter it is substituted and in what language it is written as long as it discloses the invention it will destroy the patentability of the invention in question. 10 (1985) RPC 59, 2. INVENTIVE STEP OR NON OBVIOUSNESS OF AN INVENTION Invention step is judged through a line of thought that a man is skilled in the art but lacks in the inventive genius. A skilled person is one having all the standard knowledge available in the field and having the standard capabilities of routine work and experimentation allowing him to straight forward progress from what is already known. According to Section 11, an invention shall be considered as involving an inventive step if, having regard to the prior art relevant to the application claiming the inventions, it would not have been obvious to a person skilled in the art to which the invention relates on the date of the filing of the application or if priority is claimed in respect of the invention. Rationale for the requirement of inventive step. In the case of PLG Research Ltd v Ardon Intel11 that the public should not be prevented from doing anything which was merely and obvious extension of what was already known at the priority date. NB: Inventiveness and non-obviousness are sometimes used interchangeably. Test of Obviousness. Obviousness is judged by a rational skilled person in that art. It is judged by seeing the invention as a whole against the state of the art as a whole. 11 Ltd (1995), In the case of Martin v Millword12, the issue was the invention for practical purposes obvious to the approximate skilled technician aimed with all the specific information and general knowledge deemed relevant that he could/ should do what the patent proposes. Obviousness and Inventive step. Obviousness calls for inquiry into whether the inventor in suit could have been straight forwardly derived from what is known. Issue was the invention for practical purposes obvious to the appropriate skilled technician, amend with all the specific information and general knowledge deemed relevant that he could or should do what the patent possesses 3. Industrial Application This refers to the usefulness of the invention in question. It is not every invention which is new and involves an inventive step could be patentable. This is because patents are designed to promote industrial development and they provide incentives for creativity for people involved in the research and industrial development endeavors. Article 27(1) of TRIPS Agreement defined industrial application to be synonymous with the term usefulness. As such, countries are at liberty to determine what is useful before being patented at the national level. According to Section 12, an invention shall be considered industrially applicable if according to its nature, it can be made or used in any kind of industry including agriculture, medicine, fishery and other services. 12 (1956) RPC 125