liability and intellectual property rights

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Liability and Intellectual Property Rights:

Liability and Intellectual Property Rights SB

Liability:

Liability Liability is to be responsible or obligated according to law Criminal law concerns responsibilities owed to society and civil law concerns responsibilities owed to individuals Biomedical engineers are liable for their engineering work, because of professional practice as consultants or the products they design as employees

Manufacturer liability:

Manufacturer liability For personal injury caused by its product are negligence , strict liability, and breach of warranty

Negligence:

Negligence Negligence may be defined as conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm Four major elements of action for negligence are: That a person or business owes a duty of care to another. That the applicable standard to fulfil the duty was breached. That the act or omission was a proximate cause of compensable injury. That there were compensable damages to the plaintiff

Strict liability:

Strict liability Critical focus in a strict liability case is on whether the product is defective and unreasonably dangerous A medical product is “unreasonably dangerous” if its risks outweigh its benefits or if it fails to perform safely when properly used . Risks are deemed unreasonable when: Users are unaware that there is a risk. Users are unable to judge the degree of risk even though they are aware of it. Users are unable to deal with the risk The risk could be eliminated at a cost that would not price the product out of the market

Breach of contract or warranty:

Breach of contract or warranty A warranty is an undertaking or stipulation that a certain fact is or will be as it is expressed or by implication declared or promised to be Three types of breaches of warranty: Breach of the implied warranty of merchantability Breach of the implied warranty of fitness for a particular purpose Breach of an express warranty

Associated with liabilities:

Associated with liabilities FAILURE TO WARN OF DANGERS Defense PLAINTIFF’S CONDUCT DEFENDANT’S CONDUCT Physicians and hospitals are subject to liability Negligent misuse of the product Negligent selection of the product Failure to inspect or test the product Using the product with knowledge of its defect

INTELLECTUAL PROPERTY:

INTELLECTUAL PROPERTY It is the PROPERTY CREATED BY APPLICATION OF HUMAN MIND Intangible (non-physical) in nature- derives value from ideas There is no uniform definition of IP In knowledge age, IP is a key to techno-economic growth

History:

History Paris Convention: 1883 Paved wave for systematic international and national regimes Berne convention and Madrid convention Agreement on Trade Related Intellectual property Rights (TRIPs) India: Patent Act of 1970 Modified according to TRIPs in 2005

PATENT: WHAT IS IT? :

PATENT: WHAT IS IT? It is a limited right granted by the state to an inventor in respect of an invention to exclude any other person from practicing the invention i.e. manufacturing, using or selling the patented product or from using the patented process, without due permission.

WHAT CAN BE PATENTED?:

WHAT CAN BE PATENTED? Inventions in all fields of technology, whether products or processes, if they meet the criteria of Being patentable subject matter; Novelty; Non-obviousness (inventive step); Industrial application (utility)

Conditions of Patentability:

Conditions of Patentability Novelty: Invention not known to public prior to claim by inventor Inventive Step: Invention would not be obvious to a person with ordinary skill in the art Industrial Application: Invention can be made or used in any useful, practical activity as distinct from purely intellectual or aesthetic one

SOME EXCLUSIONS FROM PATENTABILITY:

SOME EXCLUSIONS FROM PATENTABILITY Naturally occurring substances/elements; Diagnostic, therapeutic and surgical methods of treatment of humans or animals; Plants and animals other than μ -organisms; Essentially biological processes for production of plants or animals; Inventions whose use is contrary to public order or morality. Ideas, methods for business, playing games, performing mental acts.

PATENT: SPECIAL REQUIREMENT:

PATENT: SPECIAL REQUIREMENT Disclosure of invention Sufficiently clear and complete so that a person skilled in the art can carry out the invention. A country may require the best mode for carrying out the invention to be disclosed.

Slide 15:

4711 (Cologne) TRADEMARKS

TRADEMARK, SERVICE MARK, and TRADE NAME:

TRADEMARK, SERVICE MARK, and TRADE NAME Distinctive symbols, signs, logos that help consumer to distinguish between competing goods or services. A trade name is the name of an enterprise which individualizes the enterprise in consumer’s mind. Legally not linked to quality. In fact, linked in consumer’s mind to quality expectation.

TYPES OF MARKS :

TYPES OF MARKS Well Known Trade Mark Collective Mark: Proprietor is an association of persons, which is legally not a partnership Certification Mark: Does not indicate origin of goods but certifies the goods as conforming to certain characteristics (quality, ingredients, geographical origin etc.) e.g. ISI, AGMARK, Hallmark etc.

Forms of TM:

Forms of TM Visual: Words, letters, numerals, devices including drawings and symbols or 2-D representations of object or a combination of two or more of these, colour combinations or colour per se , 3-D sign as shape of goods or packaging. Audio: Sounds, Musical Notes Olfactory: Smells

CRITERIA OF TM PROTECTABILITY:

CRITERIA OF TM PROTECTABILITY Distinctive (basic function): - inherent ( e.g.RIN ), or - acquired by usage (e.g. TATA) Non-deceptive ( to avoid misleading) Not contrary to public order, morality Special Requirements A mark is registered for specified classes of goods or services.

What is protected and what’s not? :

What is protected and what’s not? Right to use TM in relation to goods/ services as registered are protected (If TM consists of several parts, protection is for TM as a whole) State Emblems, Official Hallmarks, Emblems of Intergovernmental Organizations cannot be used as TM.

Slide 21:

Paithani weaving GEOGRAPHICAL INDICATIONS

What is GI?:

What is GI? Many goods possess their peculiar properties due to their geographical origin. GI is the best method to indicate the geographical origin of goods and services. Many agricultural products (tea, rice); dairy products (cheese), wines and spirits (Champagne) owe their special quality and reputation to their geographical place of growth or processing.

Protection of GI:

Protection of GI GI is not owned by a single owner Any producer in the region can use the GI on the product provided it is prepared by the norms set out for the use of that GI. GI is registered in the national register and is similar to the certification mark identifying the origin of the good. Govt. can register GI in the international register maintained by WIPO for world wide protection. It is an offence to use false GI on goods.

Slide 24:

Industrial Designs

What are Industrial Designs?:

What are Industrial Designs? The ornamental or aesthetic aspect of an article that enhances visual appeal and differentiates product. e.g. 3-D features of shape or surface as of a perfume bottle, 2-D patterns of lines, shapes and colours as on a bed sheet.

Criteria for Protection as ID :

Criteria for Protection as ID New and Original Capable of mass production or application on an article of utility Not contrary to public order or morality The shape should not be determined merely by the functionality of the good.

Comparison of ID against TM :

Comparison of ID against TM ID Has to be integral part of product Should be original and new but need not be distinctive TM Is applied on the product but need not be embodied in it. Should be distinctive

ID, Copyright, Patent :

ID, Copyright, Patent If the article is not mass produced or the design can not be applied on a useful article, the design would be an aesthetic work, protectable under copyright. Some engineering designs may be sufficiently innovative, protectable as a patent.

ID Protection:

ID Protection Protects commercial exploitation of the design idea through products/articles that embody it or reproduce it and not the articles themselves.

Slide 30:

Integrated Circuit Layout Designs

What is Layout Design?:

What is Layout Design? Layout of transistors and other circuit elements, including lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit (IC).

Why to protect?:

Why to protect? IC Layouts are creations of human mind; There is lot of investment of time and money in the creation but copying is very cheap; Fertile area with new circuit designs made every day to cater for miniaturization and novel applications.

Why special protection?:

Why special protection? There may not be novelty so cannot be patented; Copyright protection does not return the investments since commercial life of a design is limited.

Protection is against…:

Protection is against… Act of reproducing a layout design fully or in parts; Importing, selling or distributing commercially a protected layout design or IC incorporating it. But identical design created independently by third party is not prohibited.

Trade Secret:

Trade Secret The best kept secret till date

Trade Secrets:

Trade Secrets Some inventions, data, information cannot be protected by any of the available means of IPRs. Such information is held confidential as a trade secret. Trade secret can be an invention, idea, survey method,manufacturing process, experiment results, chemical formula, recipe, financial strategy, client database etc.

When Trade Secrets are preferred? :

When Trade Secrets are preferred? When invention is not patentable; Patent protection is limited to 20 years, when secret can be kept beyond that period; When cost of patent protection are prohibitive; When it is difficult to reverse engineer

How to guard Trade Secret?:

How to guard Trade Secret? Restricting number of people having access to secret information Signing confidentiality agreements with business partners and employees Using protective techniques like digital data security tools and restricting entry into area where trade secret is worked or held National legislations provide protection in form of injunction and damages if secret information is illegally acquired or used.

Slide 39:

Copyright

Copyright:

Copyright Copyright protects literary and artistic works e.g. Books, lectures, dramatic and musical works, choreography, cinematography, drawings, paintings, architecture, sculpture, photographs, illustrations, maps, plans sketches etc. This is automatic right created with the creation of work and no registration is required

Rights covered under CR:

Rights covered under CR Moral Rights : Author’s right of paternity. Non-alienable. Economic Rights : Rights to exploit the work. e.g. Rights of translation, rights of performance, rights of reproduction etc. These rights can be transferred, assigned, licensed for economic benefits.

Who are the Authors?:

Who are the Authors? Writer/writers of the book; Painter; Music composer; Translator; Cinematographer; Photographer etc.

Duration of Protection:

Duration of Protection For books and other works of arts it is 50 to 70 years after the death of the author (the laws of different countries vary); For photographic work 25 years from making the work; For cinematic works 50 years after making the work available to public.

Exceptions to Protection (Free Use or Fair Deal):

Exceptions to Protection (Free Use or Fair Deal) Quotations for commentary; Illustration for Teaching; Current News Reporting etc. Free Use is decided by amount of work used and its economic implications to the right holder. The mention of original author/source is must.

Slide 45:

Related Rights

Related Rights (Neighbouring Rights):

Related Rights (Neighbouring Rights) Rights related to dissemination of copyrighted work They protect: Performers of Work Producers of Phonograms Broadcasting Organizations

International Agreements:

International Agreements Paris convention for the protection of Industrial Property (1883) Berne convention for protection of Literary and Artistic Works (1886) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (1994)

Emerging Issues in IPR:

Emerging Issues in IPR Traditional Knowledge and Expression of Culture (Folklore) Biodiversity and Genetic Resources Electronic Commerce; Internet Domain Names; Protection of databases, software

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