Trevors Rights under the Patent - Essay Example

? UNDERGRADUATE/POSTGRADUATE DEGREES WORK FRONT SHEET Details to be completed by the Module Leader/ Internal Examiner MODULE Intellectual Property Law MODULE CODE: LECTURER: ISSUE DATE: 26th September 2011 HAND IN/PRESENTATION DATE: 13th December 2011 Module: Intellectual Property Law Part A: Response Trevor’s Rights under the Patent Intellectual property is a subset of law dealing with protection of certain rights congruent to development of original works. Many individuals invent and innovate particular ideas, designs, and products hence the need to have some protection curbing any other person that may want to use such discoveries for their own benefits. Intellectual property rights cover all inventions and innovations such as original plays, novels, and any other invention of either an individual or a company. In a different perspective, intellectual property rights cover identification marks used by companies in order to protect malicious use of the same. Such protections are in place with an aim of encouraging new inventions, innovations, and technologies, which is vital for growth of both a nation or a society and the global economy. Examples of such intellectual rights include copyrights, patents, trade secrets, industrial designs, and trademarks. These rights depend on the form and type of invention or innovation that an individual attains. In the above scenario, Trevor discovered a drug that can cure common cold. In this case, Trevor’s discovery qualifies for a patent as one of the intellectual property rights. Millennium compound has been in existence for long yet no one used it to invent a drug for curing common cold. It is therefore wrong to assume that since Millennium compound has been in existence, someone was going to use in at some point to come up with a drug for curing common cold. The following is a discussion and evaluation on Trevor’s case and the requirements for his patentability under the United Kingdom’s Law on intellectual property rights1. This evaluation and discussion begins by identifying specific rights that Trevor has in the patent being applied for in the invention. Trevor has a right to seek for court injunction on the application process since his name does not appear in the form. As an inventor, Trevor has the right to have his name as the sole owner of patent right on the common cold medicine discovered. Since they are not co-owners of the idea, Trevor has a right to obtain the patent right under his name. In a scenario where Trevor will allow the professor to have patent under his (professor) name, then Trevor should forget about such rights as provided for within intellectual rights. Therefore, it is important that Trevor fight for his name to be used for obtaining such patents rights since without that then he (Trevor) is unlikely to benefit from the same rights. After all, patent rights according to UK Patents Act 1977, Section 3 2the only person who enjoys patent rights of an invention is one whose name is used in success application and approval of the same rights. Patentability Requirements Under the United Kingdom’s Patent Rights law, there are specific requirements that an inventor must adhere to in order to apply successful for a patent right against his or her invention. Some of the conditions that should be in force include having an element of novelty, invention involving an inventive step, invention having practical use, and the subject matter must be accepted as patentable within the United Kingdom’s laws. Novelty is the most vital prerequisite for any patent right to be successful completed under the UK law. Under the UK law, novelty requirement states that for an invention to acquire patent rights it must be new. According to the UK Patents Act 1997 Section 2(1)3, a new invention is one that does not take any part of the ‘state of the art’ within a reasonable time just before patent application date. In this regards, the ‘state of art’ refers to the entire information or matter made available to members of the public not only within a state or within nation but globally4. In addition, the UK Patents Act 1997 Section 2(3)5 states that the ‘state of art’ shall also include previously patented inventions prior to the new patent application. In the above scenario, Trevor’s invention is new since there are no previously patented drugs in relation to common cold and the Millennium compound. In any case, there is no information or matter regarding Millennium compound and its usefulness in treating common cold that is available to the public. For instance, in the case of Advanced Building Systems Pty Limited v Ramset Fasteners Pty Limited [1998] HCA 196, the court ruled that due to lack of novelty in the discovery and manufacture of the product, the invention was not patentable. In addition to this, the Commonwealth Consolidated Acts, Patents Act 1990 Section 18(1), it is clear that an invention is only patentable if it there is novelty. This was also the situation in the case of NV Philips Gloeilampenfabrieken and Philips Lighting Pty Ltd v. Mirabella International Pty Ltd (1995) 32 IR 449 (HC) RR 6177, where the court held that patentable inventions must have the concept of novelty. Hence, the invention by Trevor was patentable on grounds that it had novelty concept. The second requirement for an invention to be patentable is the idea of being inventive. An invention that does not involve inventive step is not patentable. The UK Patents Act 1977 Section 3 categorically states that for an invention to be patentable there is need for such inventions to involve an inventive step. Such an inventive step should not be obvious to any individual having skills in art or related to such inventions8. In Trevor’s scenario, it is clear that there was an inventive step involved. This is because Millennium compound has been in existence for long and no one has thought of it as a better combination with other substances to make common cold drugs. In any case, even if there was an individual with such an idea, it is unguaranteed that such a person was gong to mix the same substances mixed by Trevor in order to come up with the drug for treating common cold. It is therefore incorrect to assume that since Millennium compound was in existence for long and that treatment for common cold had made people desperate and then at some point it was going to be used in the same process in order to discover the same. In the case of Bristol-Myers Squib Co v F.H. Faulding & Co Ltd [1998] 860 FCA (22 July 1998)9, it was held that Taxol was an effective drug in combating cancer. Therefore, the idea to patent the particular dosage and timeframe as applied by the plaintiff was not patentable as no inventive step was involved. This is because the person claiming to invent particular dosage and time did so under trial and error method hence no inventive step. Even though Trevor’s step involved trial and error method since there were not sure of the substances involved and in any case, the student was preparing something else, it may be concluded that since no one has even though of Millennium being a better remedy for common cold, then the process was inventive. Therefore, on grounds of inventive process, Trevor’s discovery of common cold drug was patentable. From the grounds of subject matter, Trevor’s invention was patentable. According to the UK Patents Act 1977, Section 4(1) 10states that method of treatment or diagnosis is not patentable. However, Section 4(2) 11of the same Act indicates that method of treatment or diagnosis does not include substance or composition for use in the stated methods. The European Patents Convention Art 52(4) 12also prohibits patenting of treatment and diagnosis methods invented by different persons. These two Acts however provides that an invention including diagnosis or treatment substance is patentable. For instance, in the case of Joos v. Commissioner of Patents (1972) 125 CLR 611, 13where the court held that methods of treating the human body could not be patented hence refusal to offer patent rights to the applicant. On these grounds, it is clear that Trevor’s invention was on substance of treating common cold and not method of treatment or diagnosis. Therefore, Trevor’s invention is patentable under the UK law of intellectual rights property and precisely the patent rights. Lastly, Trevor’s invention fulfils the requirement of invention having a practical use. The UK Patents Act 1977, Section 4(1)14 provides that as long as an invention is applicable in any kind of industry then it becomes patentable. In this regards, the discovery of Millennium compound as a common cold is applicable in usage as a substance of enabling healing of human beings. Therefore, Trevor’s invention was patentable. In addition to these grounds, UK Patents Act 1977, Section 5(1) 15provides for the priority date, which indicates that an invention becomes patentable given that, its application (date of filing the application) is enforceable by the laws of the same country. In conclusion, Trevor’s invention of a common cold drug was patentable under the requirements of patentability within UK intellectual property rights. Part B: UK System of Copyright Exceptions United Kingdom copyright system is under the provisions and directives of the Copyright, Designs, and Patents Act 1988. This Act contains more that 60 sections setting out scenarios under which an action may not be considered as an infringement into copyright of an individual’s artistic works. The high number of exceptions within this Act sets fear amongst different individuals who strongly believe that such exceptions may prevent adequate protections against infringement of copyrights (Westmacott & Hogan, 2011). Nevertheless, these exceptions perform varied vital functions. Some of these exceptions for instance, regulate the monopolistic powers that individuals having copyrights may impose on others. Such powers may render certain aspects within a nation useless. For instance, developers of computer programs having exclusive copyrights may take advantage of such monopolistic powers hence jeopardizing functionality of various sectors especially those significantly relying on technology (Westmacott & Hogan, 2011). In addition, such exceptions within the copyright law ensure that the provisions fit different types of subject matter regarding intellectual property rights. The basis of these exceptions is for educational establishments as well as for public convenience. The first exception within UK’s copyrights relates to literary, dramatic, musical, or artistic works. This exception provides that unlimited number of such works as literary, musical, artistic, or dramatic may be produced for purposes or aim of giving instructions (Westmacott & Hogan, 2011). For instance, students within their books may draw a diagram redrawn from a book. This exception allows use by educational establishments. In the absence of such exceptions, this results to an offence chargeable in court when an instructor or a teacher redraws a diagram on the blackboard, which is the copied by the students. Nonetheless, such exceptions are limited to reprographic copying such as photocopying, which are only allowed to Universities after obtaining license from Copyright Licensing Agency (CLA) (Westmacott & Hogan, 2011). Through licensing of University, CLA gives authority to authorized persons to photocopy copyrighted materials. CLA, a body representing various licenses and publishers both within UK and overseas provides limits for making of multiple or numerous copies of copyrighted materials. Such production of multiple copies as defined by CLA should be by and for the usage of authorized individuals. An authorized person refers to any current employee within a learning institution as well as all the students registered within recognized universities within the United Kingdom (Westmacott & Hogan, 2011). This exception provides for creation of packs within educational establishment especially when students are expected to have combination of various copies. In addition, learning institutions may also produce electronic sources in order to enhance the learning process. These are also within the exception relating to literary, dramatic, musical, or artistic works (Westmacott & Hogan, 2011). Other than books, newspapers may be a source of vital information for learning purposes. In United Kingdom, newspapers are under the governance and directives of Newspaper Licensing Agency’s Licence, abbreviated as NLA Licence. NLA Licence gives permission and directives for copying sections of newspapers within a given limit for educational purposes. This follows a case of Newspaper Licensing Agency Ltd v Marks & Spencer Plc [1999] [2003] 1 AC 55116, where the court held that redistribution of the copyrighted materials copied were beyond the exception thus considered unfair. When an instructor feels that some contents within a newspaper suit learning process, then there is freedom and permission to copy cuttings of a newspaper to limits provided by the body. However, when an individual wants to make copies of the same then he/she may do so under provisions and directives of fair dealing. Fair dealing is another way that exempts some actions from being copyright infringements. For instance, an individual who produces copyrighted materials for purposes of research or personal study other than commercial purposes has not infringed copyrights of such works. Even though the law does not provide for the limit for making such copies, it does not matter how many copies an individual make as long as it is for personal study or research. Nonetheless, it should be noted that such exception does not include works such as sound recordings, broadcasts, and films irrespective of the use they are put to. Therefore, an individual making such copies with claims that they are for personal study or research infringes the copyrights of the same works. For instance, in the case of Hubbard v Vospar [1972] 2 QB 8417, the court held that fair dealing is on the basis of degree as its definition is difficult and impossible. In this case, the court held that such production should be analyzed on grounds whether they are too long to be unfair. Other than educational establishments, fair dealing exceptions assist the public in avoiding infringements on the copyrights. Fair dealing exceptions provide that the public may produce copies of a copyrighted material or work with a view of making reviews of criticism. In such a case, any copied material should relate directly to the criticism or reviews made. Otherwise, when the copies do not relate to reviews and criticisms then there is infringement on the copyrighted material. This was in the case of Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc (1994) EMLR 118, where the court held that copied materials did not relate to the purpose of reviews hence unfair actions amounting to infringement of copyrights. In another case of Pro Sieban Media A.G. v Carlton U.K. Television Ltd [2000] ECDR 11019 where the court held that despite the fact that laws define amount of information for copying, it is unfair to copy close to three quarters in the name of making reviews. This was also evident in the case of University of London Press Limited v University Tutorial Press Ltd (1916) 2 Ch. 60120 where it court stated that any time a person is copying then the amount copied should be prima facie worth being under protection through copyrights. According to Copyrights and Related Rights Regulations 2003, persons who copy copyrighted materials for purposes of reporting current events. Any person who report current events through copying copyrighted materials is deemed as fair enough hence does not infringe the copyrights of the works (Copyrights and Related Rights Regulations 2003 Section 30(1). According the Copyrights and Related Rights Regulations 2003, current events refer to any news that includes sport. Fair dealing defines the limits that courts declare as reasonably enough to constitute the infringement. Nevertheless, some current event materials may not be copied despite the limit as provided for within infringement terms. For instance, though news on televisions is current, they cannot be copied. Away from fair dealings, UK laws provide for exceptions in examinations as a way of enhancing educational establishments. Copyrights and Related Rights Regulations 2003, Section 32(3)21 states that copying for use within an examination especially in regarding development of questions as well as communicating the same to students does not amount to any infringements. The Act, Section 32(4)22 provides that even though such copying may be through photocopying, oral, or recording, photocopying of musical works in unpermitted. Moreover, the Act provides that in scenarios where any copyrighted material is copied in a bid to enhance production of examination then such copied works must be acknowledged unless otherwise the acknowledgement is impossible. Under Section 32(5)23, the Act prohibits production of the examinations already copied from copyrighted materials. In conclusion, UK laws providing for copyright exceptions enable educational establishments, which would otherwise be impossible or difficult given such provisions. Copyrights are powerful and any infringement is enforceable by law therefore, exceptions provided for by the UK’s law enhance achievement or certain aspects within a society or a nation. Through such exceptions, there has been regulations of the monopolistic powers that individuals having copyrights may impose on others. Such powers may render certain aspects within a nation useless. References Advanced Building Systems Pty Limited v Ramset Fasteners Pty Limited [1998] HCA 19 Bristol-Myers Squib Co v F.H. Faulding & Co Ltd [1998] 860 FCA (22 July 1998) Copyrights and Related Rights Regulations 2003, Section 32(3) Copyrights and Related Rights Regulations 2003, Section 32(4) Copyrights and Related Rights Regulations 2003, Section 32(5) European Patents Convention Art 52(4) Hubbard v Vospar [1972] 2 QB 84 Joos v. Commissioner of Patents (1972) 125 CLR 611, Newspaper Licensing Agency Ltd v Marks & Spencer Plc [1999] [2003] 1 AC 551 NV Philips Gloeilampenfabrieken and Philips Lighting Pty Ltd v. Mirabella International Pty Ltd (1995) 32 IR 449 (HC) RR 617 Pro Sieban Media A.G. v Carlton U.K. Television Ltd [2000] ECDR 110 Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc (1994) EMLR 1 UK Patents Act 1977, Section 3 UK Patents Act 1977, Section 3 UK Patents Act 1977, Section 3 UK Patents Act 1977, Section 4(1) UK Patents Act 1977, Section 4(1) UK Patents Act 1977, Section 4(2) UK Patents Act 1977, Section 5(1) UK Patents Act 1997 Section 2(1) UK Patents Act 1997 Section 2(2) UK Patents Act 1997 Section 2(3) University of London Press Limited v University Tutorial Press Ltd (1916) 2 Ch. 601 Westmacott P, Hogan N, 2011, Sowing seeds of change for the digital world e A response to ‘Digital opportunity: A review of intellectual property and growth’, Computer Law & Security Review. Read More