Business Law - Registering and Obtaining a Patent - Essay Example

Scenario In terms of registering his patent in the UK, Dan would first of all need to prepare a patent specification that provides all the details about the process by which the environmentally friendly cement will be produced. If necessary, drawing can also be attached, demonstrating the process, as well as any sheets carrying any equations or calculations. The Patent form number 1/77, which is the Request for grant of a patent, needs to be filled out, together with a £130 fee. This fee is paid to enable a search to be carried out in order to check that there is no existing patent on the invention that is being proposed, i.e, the new environmentally friendly cement. The advantages associated with filing the patent are that Dan’s product will be protected from infringement by others, of his patent. Specifically, by registering the patent in the UK, Dan’s new product will be safeguarded and protected from infringement in the UK; however by filing an application under the Patent Cooperation treaty, the new cement product will be protected in foreign countries as well (Oleska, 2002). The EU Directive 85/337/EEC requires products to be environmentally safe, which would apply in this case. The EU Industrial emissions Directive (2008/1/EC of 2008), coupled with the Integrated Pollution Prevention and Control Directive must both be satisfied in reference to the production process for Dan’s product, since the IED is also to be applied in the case of production of cement (Smith, 2010). Conforming to the requirements under the Directives would ensure that patent protection remains operational. Registering a patent would ensure that Dan gets the full benefit of all the economic rewards, such as royalties, etc, associated with the marketing of the cement and potential competitors cannot capitalize on them and develop a similar cement at a lower price. One Dan has a patent, the cement can be marketed at a good price because it gives him the exclusive rights over the product. Since a patent is an intellectual property, it is something that Dan can choose to sell or transfer at a later date, and it also provides an indication of his intent to market the cement commercially. It allows him to retain the monopoly over his product for a certain duration of time. One of the drawbacks associated with obtaining a patent is the need to disclose all the details about the product, Dan would be obliged to disclose fully in his patent, how his cement is environmentally friendly. This leads to the associated disadvantage, i.e., the patent duration is twenty years, so after this period competitors can access the secret information pertaining to his product anyway. If Dan opts not to get a patent and keeps the components and manufacturing process of his cement a secret, it would be possible for him to maintain his trade secret for a long time. 2. Dan is currently trading under the name “Bob’s World of building”. This is however, just a business name and from a legal standpoint, is not really protected, i.e, someone else could also start trading under a similar name. The only way to effectively protect the business name would be through the acquisition of a trademark. Earlier, the name of the trader was itself considered to be akin to a trademark, and Bentley (no Date) cites the statement of Salaman in 1876, i.e, “a man’s trade mark is still stronger trade mark than any that can be devised.” (at pp 16). Case law however, proved the difficulties associated with recognizing protection under the law purely on the basis of a business name, because it could be possible for more than one person to have the same name.1 This, in essence, could, in some instances, amount to “passing off” and capitalizing on the market possibilities inherent in one name for fraudulent purposes2. This was the reason for the development of the protection offered by trademarks, where the mere use of a particular name is not sufficient to establish proprietary rights unless it is “carefully calibrated to accommodate the special position of names.”3 On this basis, Dan would be much better off if he did not rely merely on his business name, but also applied for trademark protection by devising an additional logo or mark to single out his business name from other potential “Bob’s” businesses that could develop. This would ensure that the market benefits from all the consumer support and recognition that his business name garners will not be pilfered or usurped by other businesses trading under the same name. PART 2: The Competition Commission has been formed as an independent regulatory body. Its functions include carrying out in-depth enquiries into markets, mergers as well as the regulation of industries (www.civilservice.gov.uk). Competition is an essential part of a market economy; the goal of the EC Treaty is to promote healthy and effective trading among the member countries of the European Union. For example, Article 81 of the EC Treaty mandates fair trading through promoting competition, while Article 82 prevents against the abuse of a dominant position through the formation of cartels. The European Commission has recently passed regulation No: 1/2003 of 16 December 2002, wherein the hitherto centralized operations of the Commission regulating business activity in the member States has largely been transferred down to the individual member states (www.europa.eu). As a result, the Competition Commission now has a great deal more power to regulate all business activities within the UK, especially mergers and potential cartels, in order to ensure that consumer interests are protected at all times. The Office of Fair Trading: The purpose of the Office of fair Trading may be summed up as making markets work well for consumers. It is able to achieve this goal by ensuring that businesses compete freely and fairly within the UK and that there is adequate competition among them in the market place, in order to protect against monopolies, which would harm consumer interests (www.oft.gov.uk). The Office of Fair Trading is authorized to regulate and enforce compliance with the provisions of the competition Act of 1988. This Act prevents the formation of cartels and promotes active, vigorous competition among businesses in the market place to produce lower prices, goods of a better quality and more choice for consumers. The OFT has wide powers to investigate instances of unfair trading or unethical business practices that could result in the abuse of a dominant position, where one company seeks to raise its prices and gain an undue advantage in the market due to its position as a monopoly in the market. References: *“Application of Articles 81 and 82 of the EC Treaty”, retrieved October 25, 2010 from: http://europa.eu/legislation_summaries/competition/firms/l26092_en.htm * Bentley, Lionel, No date. “The making of modern trade marks law: the construction of the legal concept of trade mark (1860-80); retrieved October 25, 2010 from: http://www.cipil.law.cam.ac.uk/TMWorkshopLB.pdf *Competition Act 1988. Retrieved October 25m, 2010 from: http://www.oft.gov.uk/about-the-oft/legal-powers/legal/competition-act-1998/ *Competition Commission. retrieved October 25, 2010 from: http://www.civilservice.gov.uk/my-civil-service/networks/professional/ges/what/compcomm.aspx *“Environmental assessment”, Retrieved October 25, 2010 from: http://ec.europa.eu/environment/eia/full-legal-text/85337.htm *The EU Emissions Directive. Retrieved October 25,2010 from: http://www.herbertsmith.com/NR/rdonlyres/F35EEC82-9F8C-47EF-998A-CD204305BE8D/0/IED190710.html *Oleska, Diana L, 2002. “The advantages of using the patent cooperation treaty”, retrieved October 25, 2010 from: http://www.trade.gov/exportamerica/TechnicalAdvice/ta_PCT.pdf *Smith, Herbert, 2010. “The EU Industrial Emissions Directive”, retrieved October 25, 2010 from: http://www.herbertsmith.com/NR/rdonlyres/F35EEC82-9F8C-47EF-998A-CD204305BE8D/0/IED190710.html Cases cited: Burgess v. Burgess (1850) 3 De G M & G 896 Croft v Day 7 Beav 84 Read More