Intellectual Property Define as:
“Intellectual property refers to the ownership of intangible
and non-physical goods. … Since intellectual property is intangible, it
is more difficult to protect than other types of property.”
Intellectual property law protects the creative works of
authors, composers, designers, and inventors from being pirated. There are four
basic categories of intellectual property: copyrights, patents, trademarks, and
trade secrets. Generally, each category is used with different types of
material and affords different protections. Copyrights protect original works
of authorship from the moment they are created and fixed in a tangible form.
Patents protect new and useful machines, articles, substances, or processes
through exclusive rights granted by the federal government to their inventors.
Trademarks protect identifying marks that distinguish goods or services, such
as names, logos, designs, emblems, and distinctive sounds and smells. Trade
secrets protect confidential business information or "proprietary
information," such as business plans, chemical formulas, and customer
lists. (Reference: Lawyers.com)
COPYRIGHT
The physical ownership of an item such as a book, painting, manuscript or CD is not the same as owning the copyright to the work embodied in that item.
The term of copyright protection depends upon the date of creation. A work created on or after January 1, 1978, is ordinarily protected by copyright from the moment of its creation until 70 years after the author's death.
The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created and fixed in a tangible form, such as the first time it is written or recorded. No other action is required to secure copyright protection – neither publication, registration nor other action in the Copyright Office (although registration is recommended).
The public domain comprises all works that are either no longer protected by copyright or never were. It should not be confused with the mere fact that a work is publicly available (such as information in books or periodicals, or content on the Internet).
There is no such thing as an "international" copyright that automatically protects a work throughout the world. However, the most widely-adopted copyright treaty, theBerne Convention, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them. As of mid-2004, 156 countries, including the U.S., belong to the Berne Convention.
PATENT
--A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of aninvention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property.
Emerging Issues in Intellectual Property
Intellectual property plays an important role in an
increasingly broad range of areas, ranging from the Internet to health care to
nearly all aspects of science and technology and literature and the arts.
Understanding the role of intellectual property in these areas - many of them
still emerging - often requires significant new research and study. In an
effort to promote informed discussion of the intellectual property issues
involved in these fields.
The
intellectual property in software can be protected three ways: patents,
copyrights and trade secrets. Patents protect "inventions" that are
useful, nonobvious and novel, and must be approved by the U.S. Patent and
Trademark Office. The scope of the final patent may be quite different than the
initial application.
Copyright
law applies to "works of authorship" that are fixed in a tangible
medium of expression (such as a CD or a book), and applies automatically (a
filing with the U.S. Copyright Office is required prior to bringing a lawsuit).
Thus, the code of virtually all software is automatically protected by
copyright. Copyright prohibits the reproduction, distribution, modification,
public performance and public display of software that is "substantially
similar" to the original software. If the software is protected only by
copyright, anyone can avoid paying a license fee by re-creating the software
from scratch without copying it. That is not usually practical, of course, but
it does set some limits on what copyright holders can demand in their software
licenses. If the price of existing software is too high, competitors will
simply rewrite the software from scratch.
Finally,
trade secret law protects any information that is not "commonly
known" and which the company has taken reasonable steps to keep in
confidence. The protection is more limited than patent and copyright
protection: Trade secret law prevents only misappropriation, which means
wrongful taking. Trade secret law could protect secrets in the source code of
the software.
----http://www.cio.com/article/29593/Patent_Copyright_and_Trade_Secret_What_s_the_Difference_
TRADE SECRET
----http://www.cio.com/article/29593/Patent_Copyright_and_Trade_Secret_What_s_the_Difference_
TRADE SECRET
A trade secret is any information that allows you to make
money because it is not generally known. A trade secret could be a formula,
computer program, process, method, device, technique, pricing information,
customer lists or other non-public information. If the economic value of a
piece of information relies on it being kept private, it could be a trade
secret.
One of the most famous examples of a trade secret is the
formula for Coca-Cola. The formula, also referred to by the code name
"Merchandise 7X," is known to only a few people and kept in the vault
of a bank in Atlanta, Georgia. The individuals who know the secret formula have
signed non-disclosure agreements, and it is rumored that they are not allowed
to travel together. In the past, you could not buy Coca-Cola in India because
Indian law required that trade-secret information be disclosed. In 1991, India
changed its laws regarding trademarks, and Coca-Cola can now be sold in that country.
Trade secrets are very different from patents, copyrights
and trademarks. While patents and copyrights require you to disclose your
information in the application process (information that eventually becomes
public), trade secrets require you to actively keep the information secret.
Trade-secret protection can potentially last longer than that of patents (20
years) and copyrights (100 years). Some of the ways to protect a trade secret
are as follows:
v
Restrict access to the information (lock it away
in a secure place, such as a bank vault).
v
Limit the number of people who know the
information.
v
Have the people who know the trade secret agree
in writing not to disclose the information (sign non-disclosure agreements).
v
Have anyone that comes in contact with the trade
secret, directly or indirectly, sign non-disclosure agreements.
v
Mark any written material pertaining to the
trade secret as proprietary.
Trade secrets remain valid only as long as no one else has
discovered the information independently, the information has not been made
public (by employees or published literature) nor discovered by working
backward from the original product/process or publicly observing the
product/process. If the trade secret is revealed in violation of a
non-disclosure agreement, you can sue for damages. However, once the secret is
revealed, it is hard to get the trade-secret status resumed. Trade secrets are
protected under many state laws, Federal statutes and some international laws.
----http://money.howstuffworks.com/question625.htm
Trade secrets consist of information and can include a formula, pattern, compilation, program, device, method, technique or process. To meet the most common definition of a trade secret, it must be used in business, and give an opportunity to obtain an economic advantage over competitors who do not know or use it.
http://www.uspto.gov/ip/global/patents/ir_pat_tradesecret.jsp----http://money.howstuffworks.com/question625.htm
Trade secrets consist of information and can include a formula, pattern, compilation, program, device, method, technique or process. To meet the most common definition of a trade secret, it must be used in business, and give an opportunity to obtain an economic advantage over competitors who do not know or use it.
COPYRIGHT
Copyrights: protect the specific creative expression of an
idea through any medium of artistic/creative expression – i.e., paintings,
photographs, sculpture, writings, software, etc. A copyright protects your painting of a
haystack, but it would not prohibit another painter from expressing their
artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming
was able to receive a copyright on his particular expression of the idea of a
secret agent (i.e., a debonair English secret agent), he could not prevent Rich
Wilkes from receiving a copyright on his expression of the idea of a secret
agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).
Copyright
protection exists from the moment a work is created in a fixed,
tangible form of expression. The copyright immediately becomes the
property of the author who created the work. Only the author, or those
deriving their rights through the author, can rightfully claim
copyright. In the case of works made for hire, the employer—not the
writer—is considered the author.
The First Sale Doctrine
The physical ownership of an item such as a book, painting, manuscript or CD is not the same as owning the copyright to the work embodied in that item.
Under the First Sale Doctrine (Section
109 of the Copyright Act), ownership of a physical copy of a
copyright-protected work permits lending, reselling, disposing, etc., of
the item. However, it does not permit reproducing the material,
publicly displaying or performing it, or engaging in any of the acts
reserved for the copyright holder. Why? Because the transfer of the
physical copy does not transfer the copyright holder's rights to the
work. Even including an attribution on a copied work (for example,
putting the author's name on it) does not eliminate the need to obtain
the copyright holder's consent. To use copyrighted materials lawfully,
you must secure permission from the applicable copyright holders or a
copyright licensing agent.
Duration of Copyright
The term of copyright protection depends upon the date of creation. A work created on or after January 1, 1978, is ordinarily protected by copyright from the moment of its creation until 70 years after the author's death.
For
works made for hire, anonymous works and pseudonymous works (unless the
author's identity is revealed in Copyright Office records), the
duration of copyright is 95 years from publication or 120 years from
creation, whichever is shorter.
For
works created, published or registered before January 1, 1978, or for
more detailed information, you may wish to refer to the public domain section
of this guide or request Circular 15 ( "Renewal of Copyright"),
Circular 15a ("Duration of Copyright") and Circular 15t ("Extension of
Copyright Terms") from the U.S. Copyright Office Web site, www.copyright.gov.
Registration and Notification of Copyright
The way in which copyright protection is secured is frequently misunderstood. Copyright is secured automatically when the work is created and fixed in a tangible form, such as the first time it is written or recorded. No other action is required to secure copyright protection – neither publication, registration nor other action in the Copyright Office (although registration is recommended).
The
use of a copyright notice is no longer required under U.S. law,
although it is recommended. This requirement was eliminated when the
United States adhered to the Berne Convention effective
March 1, 1989. If a copyright holder wants to use a copyright notice,
he or she may do so freely without permission from or registration with
the U.S. Copyright Office. In fact, the use of a copyright notice is
recommended because it reminds the public that the work is protected by
copyright.
A copyright notice should contain all the following three elements:
- The symbol © (the letter C in a circle), the word "Copyright" or the abbreviation "Copr."
- The year when the work was first created.
- The name of the owner of the copyright.
Example: © 2005 John Doe
Public Domain
The public domain comprises all works that are either no longer protected by copyright or never were. It should not be confused with the mere fact that a work is publicly available (such as information in books or periodicals, or content on the Internet).
Essentially,
all works first published in the United States before 1923 are
considered to be in the public domain in the United States. The public
domain also extends to works published between 1923 and 1963 on which
copyright registrations were not renewed.
All
materials created since 1989, except those created by the U.S. federal
government, are presumptively protected by copyright. As a result, the
chances are high that the materials of greatest interest to students and
faculty are not in the public domain. In addition, you must also
consider other forms of legal protection such as trademark or patent
protection before reusing third-party content.
Public domain materials generally fall into one of four categories:
- Generic information such as facts, numbers and ideas.
- Works whose copyrights have lapsed over time or whose copyright holders have failed to renew a registration (a requirement that applies to works created before 1978).
- Works published before March 1989 that failed to include a proper notice of copyright.
- Works created by the U.S. federal government.
In rare instances, works may also be "dedicated" (i.e., donated) to the public domain.
Penalties of Copyright Infringement
By reproducing, republishing or redistributing the work of a copyright holder without permission, you may be violating or infringing on his or her rights under the Copyright Act.
By reproducing, republishing or redistributing the work of a copyright holder without permission, you may be violating or infringing on his or her rights under the Copyright Act.
If
the copyright holder has registered the work with the U.S. Copyright
Office prior to the infringement, the copyright holder may sue for
compensation. Court-ordered compensation may include damages such as
lost profits from the infringing activity or statutory damages ranging
from $250 to $150,000, plus attorneys' fees, for each infringing copy.
Even higher damages may be awarded if the court feels that the
infringement was committed "willfully."
You
may also be criminally liable if you willfully copy a work for profit
or financial gain, or if the copied work has a value of more than
$1,000. In these cases, penalties can include a one-year jail sentence
plus fines. If the value is more than $2,500, you may be sentenced to
five years in jail plus fines. Criminal penalties generally apply to
large-scale commercial piracy.
"International" Copyright
There is no such thing as an "international" copyright that automatically protects a work throughout the world. However, the most widely-adopted copyright treaty, theBerne Convention, states that once a work is protected in one of the Convention member countries, it is protected by copyright in all of them. As of mid-2004, 156 countries, including the U.S., belong to the Berne Convention.
The
Berne Convention further states that the scope and limitations of any
copyright are based upon the laws of the country where the misuse of the
copyright-protected work takes place (rather than the country where the
work originated). For example, if you photocopy an article in the U.S.,
then U.S. copyright law applies to determine whether that copy was
lawful. Similarly, if you digitize an image in the UK, the copyright
laws of the UK apply to determine whether that digitized use is lawful.
There
are grey areas, however, when it comes to the online usage of
copyright-protected content. For example, if an article is uploaded in
the U.S. and then viewed on a Web site in Australia, where is the
"copying" taking place – and is more than one "copy" being made? Courts
in the U.S. and around the world have yet to provide definitive answers
as to what country's laws should be used to determine online copyright
infringement in this case. To avoid a potential legal challenge from the
copyright holder, many institutions follow a policy of "when in doubt,
obtain permission" in these situations.
--A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of aninvention. An invention is a solution to a specific technological problem and is a product or a process. Patents are a form of intellectual property.
The
procedure for granting patents, requirements placed on the patentee, and the
extent of the exclusive rights vary widely between countries according to
national laws and international agreements. Typically, however, a granted
patent application must include one or more claims that
define the invention. A patent may include many claims, each of which defines a
specific property right. These claims must meet relevant patentability requirements, such as novelty and non-obviousness.
The exclusive right granted to a patentee in most countries is the right to
prevent others from making, using, selling, importing, or distributing a
patented invention without permission.
Patent
law is the area of law that relates to intellectual property rights.
These are also often known as patent rights, and they are used to
protect the rights of a group or individual over their own original
inventions. Patent laws cover the regulation and enforcement of these
intellectual property rights. Patent law in the US is also responsible
for the creation of the US Patent and Trademark Office, which is the
body that administers patent law.
A
patent is the right to a specific invention that is granted by a
particular government. Patent rights can be held by an individual or by a
group, such as a company. They may be held by the original inventor of
the patented process or product, but they can also be transferred to
another person or group. The patent laws prevent anyone other than the
holder of the patent from making use of the protected idea, without
obtaining permission from the patent holder. If someone does try to use
the patented idea illegally, then the patent laws specify the legal
action that the patent holder can take against them.
Patent
laws specify the types of inventions that can be patented and the
process through which a patent can be obtained. Patent laws vary between
different countries. In the United States, an invention must meet three
criteria if it is going to be eligible for a patent. It must be a new
idea, it must have some sort of use or purpose, and it must be
non-obvious, so it is not possible to patent an idea that anyone could
have.
Patent
law also specifies the process for dealing with the enforcement of
patents in cases of patent infringement. If a patent holder feels that
their rights have been violated, then they can make use of patent law in
order to enforce their rights. However, pursuing this kind of legal
action can be expensive and very complicated, so it can be difficult for
small businesses or individual inventors to pursue claims against large
companies.
Some attorneys specialize in patent law.
It is possible to obtain a patent without using the services of a
lawyer, but a patent attorney may be hired to help to ensure that the
patent is obtained properly and that it will be enforceable under patent
law. Patent attorneys can also provide up-to-date advice on patent law,
which can be important, particularly when dealing with patents in areas
of technology that are developing rapidly. Patent attorneys can also be
used when dealing with patent infringement problems, when they can help
the patent holder to deal with the complexities of the laws governing
these types of cases.
Patent
law is a complex, but important area of law. It provides important
protection for anyone who has created an original idea and it determines
which inventions can be made use of by other people. If you are
interested in finding out more about what patent law means for inventors
and businesses, then you may want to spend some time exploring the
fedcirc.us website, where you will find some useful information about
the importance of patents and how they work.
1. PATENTABLE MATTERS
Patentable Inventions. —
Any technical solution of a problem in any field of human activity
which is new, involves an inventive step and is industrially applicable
shall be Patentable. It may be, or may relate to, a product, or process,
or an improvement of any of the foregoing. (Section 21)
Non-Patentable Inventions. — The following shall be excluded from patent protection:
22.1. Discoveries, scientific theories and mathematical methods;
22.2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers;
22.3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods;
22.4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to micro-organisms and non-biological and microbiological processes.
22.2. Schemes, rules and methods of performing mental acts, playing games or doing business, and programs for computers;
22.3. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body. This provision shall not apply to products and composition for use in any of these methods;
22.4. Plant varieties or animal breeds or essentially biological process for the production of plants or animals. This provision shall not apply to micro-organisms and non-biological and microbiological processes.
Provisions
under this subsection shall not preclude Congress to consider the
enactment of a law providing sui generis protection of plant varieties
and animal breeds and a system of community intellectual rights
protection:
22.5. Aesthetic creations; and
22.6. Anything which is contrary to public order or morality. (Section 22)
22.6. Anything which is contrary to public order or morality. (Section 22)
2. NOVELTY REQUIREMENT
Novelty. — An invention shall not be considered new if it forms part of a prior art. (Section 23)
Prior Art. — Prior art shall consist of:
24.1.
Everything which has been made available to the public anywhere in the
world, before the filing date or the priority date of the application
claiming the invention; and
24.2. The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same. (Section 24)
24.2. The whole contents of an application for a patent, utility model, or industrial design registration, published in accordance with this Act, filed or effective in the Philippines, with a filing or priority date that is earlier than the filing or priority date of the application: Provided, That the application which has validly claimed the filing date of an earlier application under Section 31 of this Act, shall be prior art with effect as of the filing date of such earlier application: Provided further, That the applicant or the inventor identified in both applications are not one and the same. (Section 24)
3. NON-PREJUDICIAL DISCLOSURE
The
disclosure of information contained in the application during the
twelve (12) months preceding the filing date or the priority date of the
application shall not prejudice the applicant on the ground of lack of
novelty if such disclosure was made by:
- The inventor;
- A patent office and the information was contained (a) in another application filed by the inventor and should not have been disclosed by the office, or (b) in an application filed without the knowledge or consent of the inventor by a third party which obtained the information directly or indirectly from the inventor; or
- A third party which obtained the information directly or indirectly from the inventor. (Section 25.1)
25.2.
For the purposes of Subsection 25.1, "inventor" also means any person
who, at the filing date of application, had the right to the patent. (n)
4. INVENTIVE STEP
Inventive Step. —
An invention involves an inventive step if, having regard to prior art,
it is not obvious to a person skilled in the art at the time of the
filing date or priority date of the application claiming the invention.
(Section 26)
5. INDUSTRIAL APPLICABILITY REQUIREMENT
Industrial Applicability. — An invention that can be produced and used in any industry shall be industrially applicable. (n)
6. RIGHT TO A PATENT
Right to a Patent. —
The right to a patent belongs to the inventor, his heirs, or assigns.
When two (2) or more persons have jointly made an invention, the right
to a patent shall belong to them jointly. (Section 28)
If
two (2) or more persons have made the invention separately and
independently of each other, the right to the patent shall belong to the
person who filed an application for such invention, or where two or
more applications are filed for the same invention, to the applicant who
has the earliest filing date or, the earliest priority date. (Section
29)
8. OWNERSHIP OF COMMISSIONED WORK
30.1. The person who commissions the work shall own the patent, unless otherwise provided in the contract.
30.2. In case the employee made the invention in the course of his employment contract, the patent shall belong to:
An
application for patent filed by any person who has previously applied
for the same invention in another country which by treaty, convention,
or law affords similar privileges to Filipino citizens, shall be
considered as filed as of the date of filing the foreign application:
Provided, That:
7. FIRST-TO-FILE RULE
8. OWNERSHIP OF COMMISSIONED WORK
30.1. The person who commissions the work shall own the patent, unless otherwise provided in the contract.
30.2. In case the employee made the invention in the course of his employment contract, the patent shall belong to:
- The employee, if the inventive activity is not a part of his regular duties even if the employee uses the time, facilities and materials of the employer.
- The employer, if the invention is the result of the performance of his regularly-assigned duties, unless there is an agreement, express or implied, to the contrary. (Section 30)
9. RIGHT OF PRIORITY
- the local application expressly claims priority;
- it is filed within twelve (12) months from the date the earliest foreign application was filed; and
- a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines. (Section 31)
10. UNITY OF INVENTION
38.1. The application shall relate to one invention only or to a group of inventions forming a single general inventive concept.
38.2. If several independent inventions which do not form a single general inventive concept are claimed in one application, the Director may require that the application be restricted to a single invention. A later application filed for an invention divided out shall be considered as having been filed on the same day as the first application: Provided, That the later application is filed within four (4) months after the requirement to divide becomes final or within such additional time, not exceeding four (4) months, as may be granted: Provided further, That each divisional application shall not go beyond the disclosure in the initial application.
38.3. The fact that a patent has been granted on an application that did not comply with the requirement of unity of invention shall not be a ground to cancel the patent. (Section 38)
38.1. The application shall relate to one invention only or to a group of inventions forming a single general inventive concept.
38.2. If several independent inventions which do not form a single general inventive concept are claimed in one application, the Director may require that the application be restricted to a single invention. A later application filed for an invention divided out shall be considered as having been filed on the same day as the first application: Provided, That the later application is filed within four (4) months after the requirement to divide becomes final or within such additional time, not exceeding four (4) months, as may be granted: Provided further, That each divisional application shall not go beyond the disclosure in the initial application.
38.3. The fact that a patent has been granted on an application that did not comply with the requirement of unity of invention shall not be a ground to cancel the patent. (Section 38)
11. PUBLICATION OF PATENT APPLICATIONS
44.1.
The patent application shall be published in the IPO Gazette together
with a search document established by or on behalf of the Office citing
any documents that reflect prior art, after the expiration of eighteen (
18) months from the filing date or priority date.
44.2. After publication of a patent application, any interested party may inspect the application documents filed with the Office.
44.3. The Director General subject to the approval of the Secretary of Trade and Industry, may prohibit or restrict the publication of an application, if in his opinion, to do so would be prejudicial to the national security and interests of the Republic of the Philippines. (Section 44)
44.2. After publication of a patent application, any interested party may inspect the application documents filed with the Office.
44.3. The Director General subject to the approval of the Secretary of Trade and Industry, may prohibit or restrict the publication of an application, if in his opinion, to do so would be prejudicial to the national security and interests of the Republic of the Philippines. (Section 44)
12. STATUS BEFORE PUBLICATION
A
patent application, which has not yet been published, and all related
documents, shall not be made available for inspection without the
consent of the applicant. (Section 45)
13. RIGHTS CONFERRED BY PUBLICATION
(Section 46) The applicant shall have all the
rights of a patentee under Section 76 against any person who, without his
authorization, exercised any of the rights conferred under Section 71 of this
Act in relation to the invention claimed in the published patent application,
as if a patent had been granted for that invention: Provided, That the said
person had:
46.1.
Actual knowledge that the invention that he was using was the subject matter of
a published application; or
46.2. Received written notice that the invention that he was using was the subject matter of a published application being identified in the said notice by its serial number: Provided, That the action may not be filed until after the grant of a patent on the published application and within four (4) years from the commission of the acts complained of. (n)
46.2. Received written notice that the invention that he was using was the subject matter of a published application being identified in the said notice by its serial number: Provided, That the action may not be filed until after the grant of a patent on the published application and within four (4) years from the commission of the acts complained of. (n)
Following
the publication of the patent application, any person may present observations
in writing concerning the patentability of the invention. Such observations
shall be communicated to the applicant who may comment on them. The Office
shall acknowledge and put such observations and comment in the file of the
application to which it relates. (Section 47)
SECTION 48. Request for Substantive
Examination.
48.1.
The application shall be deemed withdrawn unless within six (6) months from the
date of publication under Section 41, a written request to determine whether a
patent application meets the requirements of Sections 21 to 27 and Sections 32
to 39 and the fees have been paid on time.
48.2.
Withdrawal of the request for examination shall be irrevocable and shall not
authorize the refund of any fee. (n)
An
applicant may amend the patent application during examination: Provided, That
such amendment shall not include new matter outside the scope of the disclosure
contained in the application as filed. (Section 49)
50.1.
If the application meets the requirements of this Act, the Office shall grant
the patent: Provided, That all the fees are paid on time.
50.2. If the required fees for grant and printing are not paid in due time, the application shall be deemed to be withdrawn.
50.3. A patent shall take effect on the date of the publication of the grant of the patent in the IPO Gazette. (Section 50)
50.2. If the required fees for grant and printing are not paid in due time, the application shall be deemed to be withdrawn.
50.3. A patent shall take effect on the date of the publication of the grant of the patent in the IPO Gazette. (Section 50)
Term of Patent. — The term of a patent shall be twenty (20)
years from the filing date of the application. (Section 54)
61.1.
Any interested person may, upon payment of the required fee, petition to cancel
the patent or any claim thereof, or parts of the claim, on any of the following
grounds:
a.
That what is claimed
as the invention is not new or Patentable;
b.
That the patent does
not disclose the invention in a manner sufficiently clear and complete for it
to be carried out by any person skilled in the art; or
c.
That the patent is
contrary to public order or morality.
61.2.
Where the grounds for cancellation relate to some of the claims or parts of the
claim, cancellation may be effected to such extent only. (Section 61)
If
a person, who was deprived of the patent without his consent or through fraud
is declared by final court order or decision to be the true and actual
inventor, the court shall order for his substitution as patentee, or at the
option of the true inventor, cancel the patent, and award actual and other
damages in his favor if warranted by the circumstances. (Section 68)
RIGHTS
OF PATENTEES AND INFRINGEMENT OF PATENTS
Rights Conferred by Patent (Section 71)
71.1.
A patent shall confer on its owner the following exclusive rights:
(a) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;
(b) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.
71.2. Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. (Sec. 37, R.A. No. 165a)
(a) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;
(b) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.
71.2. Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. (Sec. 37, R.A. No. 165a)
(Section 72) Limitations of Patent Rights. —
The owner of a patent has no right to prevent third parties from performing, without
his authorization, the acts referred to in Section 71 hereof in the following
circumstances:
72.1.
(DOCTRINE OF NATIONAL EXHAUSTION) Using a patented product which has been put
on the market in the Philippines by the owner of the product, or with his
express consent, insofar as such use is performed after that product has been
so put on the said market;
72.2.
Where the act is done privately and on a non-commercial scale or for a
non-commercial purpose: Provided, That it does not significantly prejudice the
economic interests of the owner of the patent;
72.3.
Where the act consists of making or using exclusively for the purpose of
experiments that relate to the subject matter of the patented invention;
72.4.
Where the act consists of the preparation for individual cases, in a pharmacy
or by a medical professional, of a medicine in accordance with a medical
prescription or acts concerning the medicine so prepared;
72.5.
Where the invention is used in any ship, vessel, aircraft, or land vehicle of
any other country entering the territory of the Philippines temporarily or
accidentally: Provided, That such invention is used exclusively for the needs
of the ship, vessel, aircraft, or land vehicle and not used for the
manufacturing of anything to be sold within the Philippines. (Secs. 38 and 39,
R.A. No. 165a)
73.1.
Notwithstanding Section 72 hereof, any prior user, who, in good faith was using
the invention or has undertaken serious preparations to use the invention in
his enterprise or business, before the filing date or priority date of the
application on which a patent is granted, shall have the right to continue the
use thereof as envisaged in such preparations within the territory where the
patent produces its effect.
73.2.
The right of the prior user may only be transferred or assigned together with
his enterprise or business, or with that part of his enterprise or business in
which the use or preparations for use have been made. (Section 73)
SECTION 74. Use of Invention by Government.
74.1.
A Government agency or third person authorized by the Government may exploit
the invention even without agreement of the patent owner where:
(a) The public interest, in particular, national security, nutrition, health or the development of other sectors, as determined by the appropriate agency of the government, so requires; or
(b) A judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee is anti-competitive.
74.2. The use by the Government, or third person authorized by the Government shall be subject, mutatis mutandis, to the conditions set forth in Sections 95 to 97 and 100 to 102. (Sec. 41, R.A. No. 165a)
(a) The public interest, in particular, national security, nutrition, health or the development of other sectors, as determined by the appropriate agency of the government, so requires; or
(b) A judicial or administrative body has determined that the manner of exploitation, by the owner of the patent or his licensee is anti-competitive.
74.2. The use by the Government, or third person authorized by the Government shall be subject, mutatis mutandis, to the conditions set forth in Sections 95 to 97 and 100 to 102. (Sec. 41, R.A. No. 165a)
For
the purpose of determining the extent of protection conferred by the patent,
due account shall be taken of elements which are equivalent to the elements
expressed in the claims, so that a claim shall be considered to cover not only
all the elements as expressed therein, but also equivalents. (Section 75.2)
SECTION 76. CIVIL
ACTION FOR INFRINGEMENT.
76.1.
The making, using, offering for sale, selling, or importing a patented product
or a product obtained directly or indirectly from a patented process, or the
use of a patented process without the authorization of the patentee constitutes
patent infringement.
76.2.
Any patentee, or anyone possessing any right, title or interest in and to the
patented invention, whose rights have been infringed, may bring a civil action
before a court of competent jurisdiction, to recover from the infringer such
damages sustained thereby, plus attorney's fees and other expenses of
litigation, and to secure an injunction for the protection of his rights.
76.3.
If the damages are inadequate or cannot be readily ascertained with reasonable
certainty, the court may award by way of damages a sum equivalent to reasonable
royalty.
76.4.
The court may, according to the circumstances of the case, award damages in a
sum above the amount found as actual damages sustained: Provided, That the
award does not exceed three (3) times the amount of such actual damages.
76.5.
The court may, in its discretion, order that the infringing goods, materials
and implements predominantly used in the infringement be disposed of outside
the channels of commerce or destroyed, without compensation.
76.6.
Anyone who actively induces the infringement of a patent or provides the
infringer with a component of a patented product or of a product produced
because of a patented process knowing it to be especially adopted for
infringing the patented invention and not suitable for substantial
non-infringing use shall be liable as a contributory infringer and shall be
jointly and severally liable with the infringer. (Sec. 42, R.A. No. 165a)
Criminal
Action for Repetition of Infringement. — If infringement is repeated by the infringer
or by anyone in connivance with him after finality of the judgment of the court
against the infringer, the offenders shall, without prejudice to the
institution of a civil action for damages, be criminally liable therefor and,
upon conviction, shall suffer imprisonment for the period of not less than six
(6) months but not more than three (3) years and/or a fine of not less than One
hundred thousand pesos (P100,000) but not more than Three hundred thousand
pesos (P300,000), at the discretion of the court. The criminal action herein
provided shall prescribe in three (3) years from date of the commission of the
crime. (Section 84)
Damages
cannot be recovered for acts of infringement committed before the infringer had
known, or had reasonable grounds to know of the patent. It is presumed that the
infringer had known of the patent if on the patented product, or on the
container or package in which the article is supplied to the public, or on the
advertising material relating to the patented product or process, are placed the
words "Philippine Patent" with the number of the patent. (Section 80)
