An introduction to intellectual property for businesses
Intellectual property rights (IPR) have been defined as ideas, inventions, and creative expressions based on which there is a public willingness to bestow the status of the property.
Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation.
Intellectual property rights (IPR) refer to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time.
These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time.
IPR provides certain exclusive rights to the inventors or creators of that property, in order to enable them to reap commercial benefits from their creative efforts or reputation. There are several types of intellectual property protection like patent, copyright, trademark, etc. A patent is a recognition of an invention, which satisfies the criteria of global novelty, non-obviousness, and industrial application. IPR is a prerequisite for better identification, planning, commercialization, rendering, and thereby protection of invention or creativity. Each industry should evolve its own IPR policies, management style, strategies, and so on depending on its area of specialty.
Intellectual property (IP) pertains to any original creation of the human intellect such as artistic, literary, technical, or scientific creation. Intellectual property rights (IPR) refer to the legal rights given to the inventor or creator to protect his invention or creation for a certain period of time. These legal rights confer an exclusive right to the inventor/creator or his assignee to fully utilize his invention/creation for a given period of time. It is very well settled that IP plays a vital role in the modern economy. It has also been conclusively established that the intellectual labor associated with innovation should be given due importance so that public good emanates from it. There has been a quantum jump in research and development (R&D) costs with an associated jump in investments required for putting new technology in the marketplace. The stakes of the developers of technology have become very high, and hence, the need to protect the knowledge from unlawful use has become expedient, at least for a period, that would ensure recovery of the R&D and other associated costs and adequate profits for continuous investments in R&D. IPR is a strong tool, to protect investments, time, money, effort invested by the inventor/creator of an IP since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in this way aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth. The present review furnishes a brief overview of IPR with special emphasis on pharmaceuticals.
Also read, Tamara Nanayakkara of the World Intellectual Property Organization provides a rundown of what IP is, how to get it, why it’s important – and much more
Businesses and consumers, wherever they are located, can reach each other and goods can change hands with a simple click of the mouse. Entrepreneurs from all over the world now have a real opportunity to engage and participate in this ever-enlarging market. At the same time, as more and more companies jostle for customers, competition is all the more intense. Each company has to find ways to reach consumers and maintain their loyalty. They have to offer something that others don’t. To succeed in this intensely competitive globalized environment, businesses have to be continuously inventive, innovative, and creative. They must be able to communicate to consumers in ways that appeal to them.
Enter intellectual property (IP), a regime created to stimulate and encourage the inventors, innovators, and creators among us to produce the solutions we need for the problems we face, to satisfy our need for art, music, and things of beauty, and to be able to compete for customers in a free and fair market.
IP rights
- The IP system consists of a basket of different rights created by law to allow innovators and creators to control the fruits of their inventive and creative efforts.
- It provides for the possibility to acquire rights over new ideas, innovative products and processes, confidential information, creative materials, original designs, and distinctive business signs.
- The law spells out what these rights are, stipulates the conditions for obtaining these rights, and indicates how they may be acquired.
- Each right is separate, though there are some similarities in the conditions that apply, how they are obtained, and the rights that accrue.
- Successful products often rely on multiple IP rights used in combination with each other.
New technical solutions/ ideas can be protected by patent rights (or utility models), a product’s visual appeal by design rights, confidential business information that gives a business a competitive advantage by trade secrets, original creations by copyright, and distinctive business signs by trademark rights.
These rights are not in watertight compartments. If the conditions are right, a design could be protected by copyright, or if it distinguishes a product from other products, it could be a trademark; confidential business information could give rise to a patent, etc.
To obtain patent, design, and trademark rights, an application has to be made to a prescribed authority and that application, identifying the invention, design, or sign for which protection is sought, becomes a matter of public record and thus public information.
This information is maintained in freely available databases and constitutes an important resource when sourcing ideas, as well as a competitive intelligence tool to spot activities of competitors, ensure “freedom to operate” and identify potential partners. Copyright, which protects original creations, does not require a registration process and instead accrues at the point of creation. Confidential business information is by its very nature secret and remains protected from unauthorized access as long as systems have been put in place to maintain the secrecy. Trademark rights can also accrue through use in the marketplace, though they are generally weaker. Unregistered design rights are also available in some jurisdictions. IP rights are generally granted for a limited period of time, though registered trademark rights can theoretically exist forever as long as they are renewed. Trade secrets also can continue forever as long as the information remains confidential.
This is a formidable array of rights that, once obtained, can be used to protect and therefore defend a company’s core competitive advantage. When used strategically, often in combination with each other, such rights can prevent copycats and imitators and delay competitors.
IP benefits
The core competitive advantage of the company may be the unique solution it offers, its creative flavor, its recognition, and appeal, or all of the above. Whatever it may be, a number of options are available through the IP system and it is for the company to determine which of the available tools would best serve its needs.
To support business objectives
In any case, the IP system is there to serve the business objectives of a company, and whatever decision it takes it needs to do so in a manner that advances and supports its business objectives.
Protect new ideas and inventions made by the organization
Failure to protect itself may mean that imitators will quickly take over, and since the imitators did not invest in the development of that solution or that design or in creating that trusted image, they will be able to provide the same unique proposition at a lower price, quickly running the original company out of business.
It provides an option for third parties to use the organization’s assets
IP rights are often described as negative in nature in that the right provided by law is to exclude others from using it, as opposed to a positive right to use. However, the right to exclude necessarily means that there is also the right to include: the option to say yes to a third party to use these assets.
Provides physical assets that can be traded
Therefore, the IP system, by providing a certain tangibility to intangibles, creates assets much like physical assets that can be traded by the owners of these rights. IP rights can be bought and sold, licensed (rented), donated, used to attract partners and collaborators, signal to investors, and project a certain image to customers and potential employees.
The intangible nature of IP rights offers a unique opportunity as compared to tangible assets. Unlike tangible assets, intangibles can be enjoyed by an endless number of people at a marginal cost of zero or almost zero without affecting their quality, and this enjoyment can take place simultaneously. Physical assets, on the other hand, can be enjoyed generally by one person at a time and multiple users can affect their quality. IP owners can therefore give others (say yes) the right to use their IP assets in exchange for value, usually a fee called royalties, which they can theoretically do with as many third parties as they wish, creating multiple revenue streams. This is known as licensing and businesses today thrive on a multitude of such licensing practices, creating many lucrative business opportunities.
Tanzania National and global IP systems
Ironically, as borders melt away in the global marketplace, the IP system remains firmly national (or regional).
While the minimum thresholds for protecting IP rights are governed by international treaties, the process of obtaining IP rights and enforcing them rests with national authorities.
IP rights for the most part have to be sought and formally obtained through application to a national or regional authority.
The right obtained is limited to that jurisdiction where it was granted, which is generally a country and in some cases a region where a system exists to grant rights for a particular region, such as in Europe through the European Patent Office, or Benelux countries, or English-speaking African countries through the African Regional Intellectual Property Organization, or French-speaking African countries through the Organisation Africaine de la Propriété Intellectuelle. Therefore, while businesses are keen to exploit the global marketplace, they have to be mindful that their IP rights need to be actively sought and obtained in those marketplaces. There are no automatic global IP rights
BRIEF HISTORY
The laws and administrative procedures relating to IPR have their roots in Europe.
The trend of granting patents started in the fourteenth century.
In comparison to other European countries, in some matters
England was technologically advanced and used to attract artisans from elsewhere, on special terms.
The first known copyrights appeared in Italy.
Venice can be considered the cradle of the IP system as most legal thinking in this area was done here; laws and systems were made here for the first time in the world, and other countries followed in due course.
The patent act in India is more than 150 years old.
The inaugural one is the 1856 Act, which is based on the British patent system and it has provided the patent term of 14 years followed by numerous acts and amendments.
The World Intellectual Property Organization (WIPO)
The World Intellectual Property Organization (WIPO), as the premier global forum on IP, has taken the lead from as far back as 1883 to put in place rules and systems for managing the IP system as a global framework, while the rights as indicated above are essentially national or regional rights.
WIPO administers a number of international treaties – 26 in fact – that agree on the legal framework of IP law, the administration of IP rights, and the obtaining of rights in multiple countries.
It administers the Patent Cooperation Treaty, the Madrid System, and the Hague System, which enable IP rights owners to obtain patents, trademarks, and design rights respectively in multiple countries.
When the IP system holds no appeal to a company, it is still important to pay attention to it as there could be many pitfalls that an unsuspecting business may face by not being aware of how the system works.
The need for IP rights/ Risks of not having IP rights in place
As indicated earlier, failure to use the IP system to protect competitive advantage will mean a business will run the risk of opening the door to imitators.
Worse, the company may protect the innovation itself, in effect excluding the original innovator from the market.
Failure to pay attention to the IP system would also mean that the company runs the risk of infringing the rights of others, inviting lawsuits, reputational damage, and wasted resources.
Other risks involve loss of proprietary information and failure to clarify IP ownership, leading to possible disputes when dealing with partners, vendors, and other collaborators.
Finally, when expanding beyond borders, significant damage can ensue by assuming that IP rights are valid worldwide, that IP laws are the same in other countries, and not knowing that there are important deadlines to be met.
These errors can cause serious harm to an unwitting business.