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24May

Research Paper on Intellectual Property

Posted by admin as Sample papers

Sample Research Paper on Intellectual Property Rights

One should like to start by saying that intellectual property is a set of different creative ideas, expressions, and know-how that have some commercial value and thus should and do receive proper governmental legal protection. Thus intellectual property is protected by things like trademarks, trade secrets, patents, and copyrights. Intellectual property rights exist on the global arena and protect the original inventors from the intellectual property rights violation. The intent of a patent is to motivate people create something new and useful and then enjoy exclusive right to their creation and its profits if the patent is implemented.

If one is to take a closer look at the existing intellectual property rights, it would become apparent that these rights belong to two general categories, with the following essay making a major emphasis on the first category as shown below:

  1. Copyright and Patents
  2. Trade secrets, trademarks
  3. Others: industrial design, geographic identification, utility models, Breeders’ rights, integrated circuits.

It is a common knowledge that copyright and patent are non-contractual things that are enforced against the parties that might have never agreed to give their consent towards accepting any one of the two.

Trade secrets on the other hand are based on the contractual law of the USA, which involves many existing parties who agreed to keep their most important information in secret so that the developing firm retains its knowledge.

Trademarks, one should understand, fall in the grey area. It is certainly ok for the companies to retain their unique names and labels in order to make it clear for the customers what products one speaks about. At the same time, the USA has witnessed numerous trademark over-broad claims, which aggressively interfere unjustly with the other people’s freedoms.

Going back to the Copyright, it is vital to remember that it is the means for legal prohibiting absolutely any unauthorized production of literal copies of existing published works. Copyright protection can be very easily obtained and as a rule oftentimes one does not have to apply to a certain institution for one’s work to have legal copyright protection. In the past one had to pay a small administrative fee for getting some formal approval (Pressman, 144). AT present obtaining copyright protection is free and it will last for the next 50 years or even more. Any work that you produce is copyrighted in its nature. Thus, if someone reads your emails or personal letters, she/he already commits copyright violation. In order to make such a long term (50 years) and the ease by which copyright rights are obtained, the government ruled out that no idea or scheme expressed there could have any legal protection. Thus, if Microsoft Windows uses ‘windows’ in its work, it means that any other company can develop the similar things as long as it does not use the same code and content. Thus, the copyright is limited only to covering the specific literal published work, rather than ideas that it presents.

Speaking about the patents, it is interesting to note that they are much more powerful than copyrights and certainly are aimed at and can prevent others around the world from using the know-how, data, ideas or practices of any invention unless that person gets a formal permission from the author/creator of the patent.

One should also understand that under the patent protection no later re-invention or certain ignorance that relates to the patent-protected product can be a good excuse. The patents once enforced remain active regardless of the future conditions and thus are the most powerful intellectual property rights of the patent holder. One should understand that in order to make it fair, it becomes more difficult to obtain the patent protection, where one has to go through a rigorous procedure, sign numerous documents as well as pay over $10 thousand dollars, while having the patent power restricted to 15-20 years depending on the industry. Also, one has to pass the formal tests established by the patent offices to make the product or idea qualify for becoming a patent.

Therefore, the given idea is to be:

  1. Novel, one of a kind and
  2. Not something commonsense that a general person could come up with.

It is apparent that these two tests are rather vague and certainly cause numerous disputes and discussion about their effectiveness and fairness. There are hundreds of patents violation lawsuits initiated each year, while there is a number of the broad patents that cover common sense ideas.

Patenting certainly contributes to more innovation and the countries that have well developed patent law at present also boast the greatest number of different innovations, because people are motivated to create novel things and later enjoy the revenue they would bring.

As a result of such creativity booster that the IP (intellectual property) protection represents the economy should also benefit because the patents, as a rule, would:

  1. improve productivity and efficiency.
  2. provide customers with more choices.
  3. improve safety of production.
  4. possibly open more production opportunities and create more jobs and thus lower unemployment.

Thus as one might assume, the relationship between IP system and innovation is positive, meaning that the more the intellectual property (IP) is protected, the more innovation is created in the country.

Speaking about the history of the patents and the intellectual property rights, one should not forget that these rights were created to motivate people to create some innovations on a regular basis and thus expect a decent and fair remuneration for one’s creative efforts. In order to assure that it is the original inventor who gets all the benefits for his/her invention it became apparent that the government institutions should participate in the wealth protection initiative through patents and copyrights (Pressman, 148).

The USA patent and copyright system resembles the British system that dates back to the middle ages and was used by the British royalty to control the most important industries and their practices. Copyright was originally created to assure that the British government has control over the printing press, which was important during different times of religious and political dissent. As a result of such governmental or royal control numerous companies would have monopoly privilege and censorship on a wide basis and could cover even basic industries like salt production (patented salt cannot be replicated) or leather production (this spurred the creation of artificial leather). Thus, one can trace only political interest in the patent and copyright protection.

Originally in the USA the copyrights were also aimed at helping the rich, i.e. to protect the rights of the publishing houses rather than original authors. Apparently, it were the publishing houses that could lobby their right to copyright and had the resources to do that. The authors were added later not to violate the US constitution, section VIII, clause VIII.

“The Congress shall have power …To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;…”

Therefore, the Intellectual property in the USA is a constitutionally supported issue that gives the authors and inventors the exclusive right to enjoy the benefits of one’s intangible creation that in the future can contribute to something of the tangible nature. Therefore, one can see that such legal protection is apparently given to ideas and solutions that matched the patent office test.

The patent protection applies to all countries where this patent has been registered as well as gives the right to the owner to prevent others from selling or producing the same product in that particular country, thus giving much power in the hands of the original product creator.

Thus, those who create something of the intangible nature might oftentimes have control of the tangible products, too:

  1. Use of the intangible creation, like software programs.
  2. Commercialization of the tangible product, like the CD/DVD that carries that given program. One should understand that such control over the intangible asset oftentimes controls the whole market for that product.

It should be added here that the current IPR in the USA relate and can be applied to virtually any kind of tangible or intangible creation as seen below:

  1. Aesthetic nature (paintings, music designs)
  2. Technological nature (patents for software).
  3. Commercial nature (know how, and organizational structure, business practices, office ergonomics)

It should also be noted that the TRIPs Agreement originally was negotiated during the Uruguay Round of the WTO and currently sets all minimum standards for the three broad categories shown above for the patents while also covering the copyrights, and trademarks. TRIP does not affect the breeder’s rights or the utility models, which just like copyrights or trademarks, affect the business practices and people in the participating countries. Thus, no country is bound by any Breeder’s rights or utility models

One should remember that different intellectual and economic development of the country places different focus on the TRIP Agreement implementation. Apparently the utility models indeed may appear to be very important for smaller developing countries because it allows these countries to protect their small and minor innovations and thus spur innovation in these developing countries which at present cannot boast any innovations created inside the country. The majority of the innovations in the third world countries come form the multinational companies and thus one can understand that the TRIP was initiated to make these patent infringes from the third world countries comply with the existing US and European patent laws.

It is important to point out the fact that the practical differences of the TRIP agreement as applied to various countries around the world related to the R&D investments and the societal attitude towards innovations.

Please refer to the Table in the addendum section for better understanding of the matter:
World Intellectual Property Organization (WIPO) and UNESCO are among those organizations that are responsible for implementing the TRIP agreement. WIPO is a part of the UN currently works a lot with the new forms of Intellectual property protection and works with the layouts and integrated circuits as well as carries out the proper research with respect to the biotechnological inventions patents.

The TRIP agreement was conducting within the GATT’s framework aimed at creating the sound legal protection for the developed countries’ intellectual property rights abroad.

One should remember that TRIP has never been a true negotiating process, simply because it did not give and take but rather took from the developing countries which were forced to make concessions by agreeing to support the higher levels of IPR protection created by the developed nations. The developing nations could only get the extension period needed to reform their economies to correspond to the TRIP requirements and did not get anything in turn.

TRIP was created to fight the copyright violations, and trade in counterfeit goods. Originally these countries did not want to comply yet after being investigated by the special 301 section of the US Trade Act the majority of countries would comply with the trade regulations. The developing nations were unable to resist the pressure from the developed nations (Pressman, 151).

It should be noted that the TRIP agreement in the framework of GATT worked on the existing patent protection, yet for some reason a great number of proposals do not have identified source and thus it is only the participants that were involved who know how and why the given TRIP provisions were adopted. TRIP agreement was considered to be the least transparent negotiations that had ever been conducted on the Intellectual property rights. As a result of such action, the existing contracting parties lack the proper information for making the TRIP agreements get implemented.

Spеаking аbout somе prаcticаl аpplicаtion of thе copyright lаws it should bе stаtеd thаt copyright lаws protеct thе originаl crеаtors of а givеn piеcе of informаtion. Thus, copyright is — bаsicаlly thе lеgаl еxclusivе right of thе аuthor of а crеаtivе work to control thе copying of thаt work. Thеrеforе, no onе еlsе bеsidеs thе аuthor, or without thе аuthor’s pеrmission is lеgаlly аblе to rеproducе/copy thе givеn mаtеriаl. If thеrе is not ® , ™, © еtc, signs of copyright, it doеs not mеаn thаt thе book mаy bе copiеd. Аlmost еvеrything in thе USА crеаtеd аftеr 1987 is copyrightеd. It should аddеd thаt usuаlly much of thе mеdiеvаl litеrаturе, cаn bе copiеd whilе thе modеrn books mаy bе not. If thе book stаtеs thаt it contаins а copyright mаtеriаl, thеn it should not bе copiеd. One should also understand that “after the passage of 50 years, the given material may be copied without limitation” (Pressman, 76).

Every school or university library shares the following features which in turn deal with the copyright laws.

  1. Reference Collection. The reference collection of every school or university includes general reference materials along with “reference materials specific to academics, architecture, dance, music, theater, business, the visual arts etc” (Stephen, 23). Most of the items are intended for the use in the designated area. It should be noted that photocopying might be allowed should the book permits it.
  2. Journal Collection. Every school maintains dozens of subscriptions to both scholarly and popular journals in arts and education, education, and the arts. Photocopying may “be allowed if the material is not copyrighted” (Pressman, 83).
  3. General Collection. The general collection includes circulating print and audio-visual materials that are not included in current repertory and featured artworks collections. Usually the general collection “may not be photocopied and is copyrighted” (Schechter, 120).

It should draw the reader’s attention to the fact that one of the basic precepts of copyright law is fair use, the notion that some copyright infringements serve a higher social purpose, such as education, and should be permitted. The idea of fair use of the 1976 Copyright Act enables teachers and professors to access works in order to “expand and enrich learning opportunities for student(s)” (Pressman, 85). For example, as a professor is required to provide chapters to the students to prepare for an exam, fair use applies as long as the professor grants permission from the publishers to do so.

Another good thing is that students, who cannot afford to pay for textbooks and course materials, have the right to photocopy, providing that copies are for personal use only. No penalty will take place as long as the individual does not ask a copy shop to make the copies, which is considered a copyright violation. “Copyright laws do not extend to facts and ideas”. If a student wishes to incorporate common ideas or facts about a specific subject in an essay, for example, he/she can since “concepts or truths cannot be owned” (Stephen, 25).

When using or copying works under fair use, certain standards must also be taken into consideration, as the abuse of this law will not be accepted. These standards include the purpose of use, the nature of the work, the extent of the material used and the effect on marketability. If photocopied works are used temporarily, “where no reduction in sales will occur, then fair use is likely to apply” (Pressman, 87).

One must also not forget that it does not matter whether or not one made profit off the copyrighted material or not, one already broke the law. It’s still a violation if one gives it away — and there can still be serious damages if one hurts the commercial value of the property. It should point out recent news with the music that “there is an exception for personal copying of music, which is not a violation” (Schechter, 121). Still It should be pointed out that the United States courts seem to have said that doesn’t include wide scale anonymous personal copying as Napster. It should be noted that if the work has no commercial value, and the copyright violation is technical, marginal “it is unlikely to result in legal action, although it is still a violation” (Pressman, 89).

Speaking about the right way of using intellectual property rights, I have to note that one is advised to use them to patent things that will benefit the society. Thus one cannot patent things that can be used for war (such as weapons of mass destruction), computer viruses etc.

One must not forget that copyright is never lost, so once one created it, one owns it for the next 50 years without even registering with some one regarding your creation. Certainly oftentimes copyright may be confused with trademarks, which indeed can be lost or taken away, yet copyright is something that belongs to its creator(s). By the same token technically if emails present any commercial value, and are disclosed by one’s friends, then one is able to sue them and get monetary compensation.

Whenever the invention has been created, the inventor is likely to patent it to derive the future benefits from his/her creation. These patents are palpable and legally binding documents that give the person the exclusive right to own the idea.

As noted earlier the patents are the most restrictive documents and at the same time the complicated.
As noted earlier, the patentable good has to be non-obvious and useful thus it has to work and not be a part of existing technology (Samuels,42). Currently the Lemelson Foundation is the charitable philanthropic institution that promotes US inventors.

One should remember that some of the innovations are a public property the instant they become created. The discoveries in the natural world belong to this public property. Thus one cannot patent the laws of the universe simply because it existed before the person’s life. IN other word’s the Newton’s gravity law or Einstein’s Law of Relativity, did have a tremendous impact on the human lives, yet they had never been owned by their founders. One can patent genetically modified organism, yet cannot patent the existing specie. Although the genetic engineer did not create anything original, he/she manipulated the genes to the point of creating something new and certainly can patent the combination of the genes that he/she managed to put together in his/her new animal (Pressman, 153).

In order to patent something one is advisable to hire the competent lawyer or patent agent who knows all the peculiarities of the given patent law and the innovative invention.

Once the lawyer researches and finds out that the machine is indeed unique and can be patented, then one is to fill out the formal application form that needs to be submitted. The formal application will certainly include the following elements:

An exhaustive list of all the ‘prior art’ innovative inventions that the given invention somehow relates to. In other words, if one created a special ‘human teleporter’, that would transport people across the room, than one would have to note the quantum teleporter (an existing patented device that transports single atoms) as well as other things (like computer code that was already developed etc.)
A brief summary that would depict the general ideas related to the innovation.

A description of the “preferred embodiment” of the created invention. This embodiment speaks about the practical use of the given innovation. Here one can present drawings and schemes of the product implementation.

Legal Claims. These claims are very important for the patent application simply because the present the legal description of the innovation. One should use the lawyer to help draft the claims to assure that in the future one is able to bring the patent violators/infringers to court. The patent lawyer usually has the higher legal knowledge and will make the claims effective.

One should expect to pay from $6 thousand to 20 thousand plus for the lawyer services as well as the formal registration fee to the Patent office.

Speaking about the Intellectual property right and transaction cost, one should understand that the transaction costs are rather high, yet that serves as a motivation to produce truly profitable things to be patented.

Thus, the person who wants to patent something has to pay:

  1. The lawyer up to several thousand dollars.
  2. The patent office about $700.
  3. Annual fees to the patent office of about $200-300
  4. The production of the ‘working model’ of the invention and the proper documentation. This cost depends on the product and can range from several dollars to millions of dollars.

If the product is not accepted for patenting at the first try, one still has the chance of submit it again and get the patent. In this case one would need to hire the patent lawyer again and follow all the instructions of his and the patent office. This might further increase the costs.

What can be patented:
Speaking about the things that can be patented one should remember that they are defined by the existing patent law. Anything like a process, machine, or procedure can be patented as long as it is a working model, is useful and is unique. The exception is the development of unique weapons of mass destruction (nuclear, biological, chemical), which cannot be patented for ethical matters. Neither can one patent things that existed before a person’s birth (like natural phenomena, natural laws, discoveries etc). Because patent is created to protect the rights of the ‘creator’, the matter be it physical or intangible in nature has to be created (Schechter, 90).

The thing that can be patented must be nonobvious, novel and useful.
Speaking about the Intellectual Property, I would like to note that it relates to some creativity (intellectual) and market value (property).

Intellectual property rights are the rights that govern the intellectual property protection, sale and acquisition just like regular property rights provide certain guarantees about commodities. Intellectual property rights aim to increase stability in the USA (or any other) economy and to encourage innovation within the country. Overall, IPR provides benefits for all, thus is justified from the utilitarian point of view.

Intellectual property rights are subdivided into the following main categories some of which have been noted earlier (Samuels, 44):

  1. Patent. A legal 20-year protection for the inventor that takes place after the inventor registered with the Patent Office. If there was any public disclosure the patent cannot work.
  2. Copyright is a legal protection for over 70 years to all literary and artistic work let alone broadcasts and transmissions. Copyright arises automatically one does not need to apply for it.
  3. Database Right is a protection of databases that cannot be protected by copyrights (Pressman, 155).
  4. Design Right is the protection of a particular shape of form. Thus, if the White House has the design right, you are not likely to be allowed to build one in your neighborhood.
  5. Trade Mark is the legal protection of a company’s name, brand name or a product/service name.

IPRS or Intellectual Property Rights Search
IPRS is the Intellectual Property Rights Search which is a special searchable database that contains the publicly available versions of the US customs and border protection and intellectual property rights, regulations, updates and records. IPRS allows the users to apply simply search functions (key words, Boolean values) and retrieve these documents. IPRS allows the users to search for specific fields and record types based on the date, writer, origin, utility and application. Intellectual Property rights information has previously been available at the customs electronic bulletin board (CEBB) yet then transferred to the IPRS. IPRS is very useful for those who plan to patent their product yet need some legal advice or example. Although IPRS is very useful Internet feature, it is still advisable to hire a patent lawyer to assure that your patent indeed passes.

One should not expect the innovation be patented on the first try. Usually the second review works and the innovation is patented. Once the product is patented one would receive the “Notice Of Allowance”. At that point one would have to pay about $700 of the patent fee. Throughout the patent life, one has to pay maintenance fees, yet if the idea is good, one makes way more by patenting it an incurring these small costs.

Bibliography:
Stephen, Elias, Patent, Copyright & Trademark: An Intellectual Property Desk Reference (Patent, Copyright and Trademark, 6th Ed), Prentice Hall, 2003.

http://www.utsystem.edu/ogc/intellectualproperty/2xii.htm

Schechter, Roger, Intellectual Property: The Law of Copyrights, Patents and Trademarks (Hornbook Series. Student Edition), McGraw Hill, 2002.
Pressman, David, Patent It Yourself (Patent It Yourself, 9th Ed), Penguin books, 2003
Samuels, Jeffrey, Patent, Trademark, and Copyright Laws 2003: Current Through February 10, 2003. NY Random House, 2003

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