Industrial Property Rights: Patents, Trademarks, and More
Industrial Property
Intellectual Property
- Copyright
- Industrial
Corporate Name Brand X / Industrial X Business
Name-corporate (registered in the Commercial Registry Office of Records)
- Mark (registration at INPI)
Understanding of Property
- Middle Aged
- Liberal Revolutions
- Twentieth Century – Social Function
Concept of Property
It consists of a link between the owner and the thing, where it is submissive to the first, generating an obligation to third parties to respect it (Art. 5, XXIX, CF/88).
History of the Protection of Industrial Property
- Seniority
- Middle Ages (Feud of Venice – 1469)
- England – Statute of Monopolies
- Patent Law (USA – 1790)
- France (1791)
- Paris Convention (1883)
- Sundry Planning
History of Protection in Brazil
- Permit the Prince Regent (1809)
- Law No. 3225 (1882)
- Signatory of the Paris Convention (1883)
- Dec. No. 1263 of 1994
- Law 9279/96
Objects of Protection
Patent
- Invention (Creating something totally new)
- Utility Model (creation of something new, improving an existing object)
Brand
Distinctive mark, or normative symbolic, that distinguishes goods or services of other analogs.
Industrial Design
It is any ornamental shape of an object, or set of lines and colors, susceptible to industrial application.
Other Situations
Geographical Indications
a) Indications of Origin, (e.g., Champagne)
b) Designation of Origin (Ex.: Made in China)
- Prosecution of unfair competition
- Business Secrets
- Discovery
Expressions
- Ownership
- Privilege
- Term
Conclusion
The legal protection granted to the owner upon registration with the competent body grants the same right to use its monopoly, temporary and conditional, creating the possibility of earning profits and benefits to society.
Paris Convention
Appearance
The Union Convention of Paris for the protection of industrial property began in 1883, with 11 countries (among the signatories was Brazil), and is administered by a secretariat (WIPO – World Intellectual Property Organization), which had headquarters in Geneva, Switzerland.
Objectives
Establish general rules (principles) for industrial property as well as on the organization of an international office.
Meaning of Membership
Embodies a commitment by the signatory country to regulate industrial property, and also that the aforesaid legislation will follow the precepts of the convention.
Critical Analysis
- Accessions do not become effective
- Feasibility of the Process of Globalization
Revisions of the Convention
- Brussels, 1900
- Washington, 1911
- The Hague, 1925
- London, 1934
- Lisbon, 1958
- Stockholm, 1967
Principles
National Treatment
Provides that nationals of each country shall enjoy in all other member countries of the Union, the same protections, benefits, and rights granted by the laws of the country to its nationals, without any requirement as to domicile or establishment being required. Thus, those domiciled or possessing effective industrial or commercial establishments in the territory of a member country of the Convention (art. 3) shall be assimilated to nationals of the country where the patent or industrial design was applied.
Unionist Priority
Established by the Union Convention of Paris, which enables the holder to claim priority in other member countries of the CUP with a deadline of one year to start the process in those other countries, without prejudice to the principle of novelty, as it is assured the date of the first deposit.
Interdependence of Rights
Patents granted (or applications filed) in any member country of the Convention, regardless of patents granted (or applications filed) meeting in any other country or not signing the Convention. This device has an absolute character. The independence is related to the causes for nullity and forfeiture, but also from the standpoint of validity.
Territoriality
Establishes that the protection offered by the state through the patent or industrial design registration is valid only in the territorial limits of the subsidizing country.
Observe that the existence of regional patents, for example, the European patent, does not constitute an exception to this principle because such patents are the result of specific regional arrangements, in which member countries recognize the patent granted by the regional institution as had been granted by the state itself.
PTO (Patent and Trademark Office)
Organizational Structure
It is a federal agency, whose creation occurred in 1970, linked to the Ministry of Development, Industry, and Foreign Trade.
Organizational Model
- Headquarters
- Regional Offices
Note:
- Trade Boards
- Industry Offices
Source of Funds
- Compensation arising from services rendered
- Transfers to the Union budget
- Heritage transferred by SIPO
Journal of Industrial Property
- It is intended to disclose acts, orders, and decisions of the PTO
- Publishes materials issued by the WIPO, as well as all devices signed and ratified by Brazil
Industrial Property Agent
It is a sort of forwarding of Industrial Property acts enabling and facilitating the difficult tramite recognition of industrial property. E.g.: Joseph Auriz Barrier.
Purpose
- Run on a national standard pertaining to Industrial Property
- Pronounce itself on the convenience of signing, ratification, and denunciation of international treaties and agreements
- Registration of computer programs and franchise contracts
- Registration of technology transfer contracts
- Provide clarification to the judiciary and other organs of the Public Bus
Patents
Concept
It is a temporary title to the invention or utility model, awarded by the state to holders of the right of creation.
Legitimate Reasons
(All other social factors that make it possible are the end!)
a) Grounds of Law:
The state recognizes the law from normative regulations.
b) Reasons of Economy:
Consists of the Economic Viability of Retribution in favor of him who promoted the inventive effort, which is made possible, in principle, from the ownership.
c) Reasons Techniques:
Provides a broader solution to the needs of society, and the design of the building be made public knowledge.
d) Reasons for Development:
The correct design of a patent system features one of the pillars of the Country
e) Social Reasons:
Consists of the purpose of all the other reasons so that is revealed in the primary reason the patent system.
Classification of Inventions
- Invention-product
- Device-Invention
- Invention Process
Requirements for Patentability
Requirements
- News
- Inventive Activity
- Industrial Application
News
- The Invention and Utility Model are considered new when not included in the State of Technique.
- What the heck is the state of the art?
- It consists of everything made accessible to the public before the date of filing the patent, by written or oral description, by use or otherwise, in Brazil or abroad. (TIME)
- Complication: how to analyze the state of the art
- From the date of deposit, the creation is considered in the prior art.
- New X-Absolute Relative Novelty
- Brazil adopts absolute novelty, with respect to patents, but adopts relative novelty in relation to brands.
- Situations that deviate from the characterization of the state of the art (FREE PERIOD)
- Disclosure occurred one year before the filing date by the inventor or a person authorized by him, whether in exhibitions, lectures, and publications, is not regarded as breaking news. However, this is a clause, known as the grace period, present only in Brazilian law and may be questioned in other countries.
Inventive Activity
A product or process is totally new, unprecedented in the market, or provides a significant functional improvement compared to what exists in the market.
It earned a requirement for technical expertise in the area of knowledge related to the objective intended to be patentable, where there is an inventive effort was needed for breeding.
Industrial Application
The invention must be capable of manufacturing to the consumer through mass production, or at least apply in a branch of industry.
Situations that are not considered inventions or utility models
Findings, since the identification or disclosure of the phenomenon of nature or any other single discovery cannot be defined as the creation of man and cannot, therefore, be regarded as inventions;
Scientific theories, mathematical methods, game rules, and purely abstract concepts, since not meeting the requirement of industrial applicability;
Literary, architectural, artistic, and scientific works or any aesthetic creation, as creations that are considered by itself, do not have industrial applicability and may be subject to protection by copyright;
Computer programs themselves, because they are protected by specific laws.
Inventions and Utility Models unpatentable
What is contrary to morals, public safety, poses health or national interests;
Substances, materials, mixtures, elements, or products of any kind;
Part or all living creatures, except for part of plants or animals that exhibit, due to human intervention, characteristics not naturally achievable, and also for transgenic micro-organisms are not mere discoveries and meet the three basic requirements for patentability (novelty, inventive activity, and industrial application).
The Ownership of Patents
Who can be? (Owner)
Once verified the requirements of patentability, the grant the application for registration shall be the duty of the state, is sufficient compliance with the regular administrative procedure and provided that the establishment does not fit the statutory prohibitions.
Attributive System
The record of incorporation has an effect, for after this act comes the right to operate on an exclusive basis.
Despite the privilege of ownership resulting in this operation will be subject to compliance with the social function.
The Entitlement may be required in its own name or his heirs or successors, the transferee, or by whomever the law or the contract of employment determined.
If two or more developers develop the same idea, ownership will be recognized in favor of that evidence that the earliest filing.
If the creation has been developed by two or more persons any of them will be legitimate to require registration.
Priority
Priority X Privilege
Priority – is the fact that their applications are considered first.
International Priority
- Deadline
- Database
- Importance
Internal Priority
Comments – Contents of a Patent Document
Descriptive report – contains a detailed description of the invention or model, indicating the technical field related, a report on what is already known, and the industrial application of what is to be patented;
Claims – which are defined and assigned all the innovative details that must be protected. This part of the main patent will be compared with other similar products or processes, during the technical examination or during the trial of inventions on suspicion of copying;
Drawings – when necessary, serve to complement the description that was detailed in the report, claims, and abstract;
Summary – a brief description of the technology claimed and mentioned in the specification.