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Intellectual property rights Which Right is right for you? Part I

Michael McLaughlin | April 17, 2009
In his first blog post, patent attorney Michael McLaughlin gives us a lowdown on patents, trademarks and copyright and how it is important to know the difference.

This blog will be exploring topics in intellectual property (IP) law of interest to the ICT industries. Well get the ball rolling by giving a brief rundown on the main types of IP rights available and the differences between them.

Youve probably heard of patents, trademarks and copyright. These each serve their own function in the world of IP and it is important to know the differences between them. A client once told me he wanted to register the copyright for his invention. Uh-uh, it doesnt work that way. A patent will almost certainly be the correct type of protection for an invention and, generally speaking, its not necessary to register copyright.

Lets review these rights and see how different they are from each other. Well focus on patents in this posting, and then have a follow-up discussion on other common types of IP rights next.

Patents

A patent is a monopoly right usually lasting for up to 20 years and will allow you to stop people using (making, selling, importing, etc.) something that functions in the same way as your invention. The monopoly applies whether or not the infringer copied your invention. The infringer might even be doing something which is a variation of your invention, but is still covered by a strong, well-drafted patent. Therefore, a patent can be a very powerful right.

Patents are usually awarded for technical innovations: for example, a new mechanical gizmo, a faster or better computer. Many patents are issued for inventions which are, essentially, solutions to problems.

You have to seek patents country by country. If you have a patent for your invention only in Singapore, you cant stop someone selling something covered by your patent across the causeway in Johor Bahru (in Malaysia) or over in Batam (Indonesia).

You cant enforce a patent against infringers until its been granted. Enforcement is not automatic; your government is not monitoring this for you and you cant expect them to send in a SWAT team on your behalf! To enforce your patent, you have to go through the civil courts to obtain compensation and to stop the infringer. The infringer will inevitably counter-claim that the patent is invalid (that is, the patent should not have been granted) and/or that he doesnt actually infringe the patent.  

A patent application must describe the invention in detail when you file it and it includes broader clauses, called claims,  which define the monopoly. If someone does something which falls within the wording of the claims, they infringe the patent.

The application is examined to see whether it meets the requirements for patentabilityprincipally, that the invention is new and not just an obvious modification of existing technology before it can be granted. The examination process may involve re-defining the invention (that is, re-writing the claims) in view of that existing technology.

 

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