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LW.com Intellectual Property Primer July 2012 Contents A. INTELLECTUAL PROPERTY IN THE BUSINESS SETTING ................1 I What is Intellectual Property? II What are Intellectual Property rights? III Why is knowledge of Intellectual Property rights relevant to you? IV Who do I go to for help? V The role of your organisation VI Intellectual Property considerations on a daily basis VII Seeking protection and commercialisation elsewhere? B. I HAVE MADE AN INVENTION; WHAT DO I DO NOW? .......................3 C. WHAT MAKES AN INVENTION PATENTABLE? ...................................3 I The subject matter must be patentable II The invention must be “new” III The invention must contain an “inventive step” IV The patent must be clear and the language describing it unambiguous D. WHO OWNS THE PaTENT? ..................................................................4 I Employees II Commissioned work III Joint inventions E. WHAT RIGHTS DOES A PATENT GIVE THE PATENTEE? ..................4 F. DURATION OF PATENT PROTECTION? ..............................................5 G. HOW DO I PROTECT MY PATENT IN SEVERAL COUNTRIES? .........5 H. WHERE DO I PATENT? ..........................................................................5 I. HOW MUCH DOES IT COST TO PATENT? ...........................................5 J. ARE THERE ANY OTHER CONSIDERATIONS THAT MAY ARISE WHEN PATENTING AN INVENTION? ....................................................5 K. WHAT DOES A PATENT LOOK LIKE? (STRUCTURE OF A PATENT DOCUMENT) ...........................................................................................6 L. WHAT IS THE PROCEDURE FOR REGISTERING MY PATENT? ........8 I Initial Application II Patent Office Response III Substantive examination IV Result M. OTHER RELEVANT IP RIGHTS .............................................................9 I Trade Secrets (Confidential Information) II Copyright III Trademarks N. INTELLECTUAL PROPERTY JARGON BUSTING .............................10 Latham & Watkins | Intellectual Property Primer 1 A. INTELLECTUAL PROPERTY (i) What is Intellectual Property? Intellectual Property (IP) refers to creations resulting from an intellectual effort that are used in commerce. Such creations may include, but are not exclusive to, inventions. IP is protected in a variety of ways that depend to a large extent on the type of creation involved. For example, inventions are protected through patents; symbols and names used in commerce may be protected though both a trade mark and copyright; and literary works including software and databases are protected by copyrights. IP is inherent to the work of many organisations. Successful businesses must generate, protect, deploy and manage their intellectual property in a way that maximises its value. (ii) What are Intellectual Property rights? IP right What does it protect? Does it require registration? Patents Inventions Yes Trademarks Distinctive trade insignia Yes (but rights can exist without registration) Copyright Expression of ideas (but not No (but you may need the ideas) to register to sue for infringement) Designs Design Shape and Yes (but in some places configuration Unregistered Design Rights are protected) Trade Secrets / Confidential Information that is confidential No Information or secret Database rights Compilations / sui generis No right Circuit Layouts (chip Design layout of Generally no topography) semiconductor circuits As patents are the most common form of IP protection sought in the context of research, we will focus on providing a broader understanding of this specific IP right in this primer. (iii) Why is knowledge of Intellectual Property rights relevant to you? A basic understanding of IP rights allows you to evaluate and manage IP-related issues and to make informed decisions about research, literary and other creations and the handling of any resulting IP. Competence in IP rights will not only aid you with your work, but it may also be an important feature of your future career in any sector of the economy. By understanding and handling IP correctly you can avoid errors that may cause difficulty protecting research and development work and ultimately commercialising it. It also means avoiding the inadvertent infringement of other people’s IP, which may lead to waste, loss and costly litigation. Latham & Watkins | Intellectual Property Primer 1 (iv) The role of your organisation Protecting, licensing and developing any IP that is created plays an important role in the financial sustainability of successful businesses. As such, many organisations will make available an extensive IP policy that outlines how employees should operate. The detail and breadth of such policies as well as the degree of enforcement may vary, but it is recommended that both employees and management are proactive in developing their knowledge of such policies. (v) Who do I go to for help? If you have any queries call your organisation’s legal team. Some employers may require, as a best practice, that you fill and file an invention disclosure form or questionnaire with the appropriate person before publishing or publicly disclosing any technical development that may be patentable (see generic example attached). (vi) Intellectual Property considerations on a daily basis It is of utmost importance that you consider IP in your daily work and that you develop an eye for spotting IP issues. The following behaviours should be observed and adhered to: • Document and date your work properly. • Be careful when using non proprietary materials (someone else’s work). • Make sure the right contractual arrangements are in place if you are collaborating with others. • Be publishing savvy — publication may result in a bar to patentability, so do not publicly post or exchange information with outsiders without first protecting your patentable material. • If in doubt, ask! (vii) Seeking protection and commercialisation elsewhere? You (or more usually your employer) can theoretically apply for patent protection through your local IP registry even if your interest is abroad. Even though the development of IP is occurring locally, you (and your employer) may seek to protect your IP rights in other markets where the commercialisation of your IP may be more feasible and lucrative. Furthermore, your country may provide access to international patent protection through its ratification of international treaties like the Paris Convention for the Protection of Industrial Property, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and the Patent Cooperation Treaty (PCT). Discuss with your Latham & Watkins contact the particular requirements for your jurisdiction. B. I HAVE MADE AN INVENTION; WHAT DO I DO NOW? Consulting your organisation’s IP policy should always be your first step when considering the protection of your invention since the policy will clarify who owns it. You should also consult your employment contract as to any disclosure obligations in respect of inventions. Resist the urge to publish or disclose your invention through any type of medium (oral, written or otherwise), and seek your organisation’s assistance before deciding what commercial or patent protection is needed. Such disclosure would render your invention incapable of protection by patent and would render its commercialisation more difficult and less feasible. Fill out a patent disclosure questionnaire (see generic example attached); if your employer has its own form, use it. 2 Latham & Watkins | Intellectual Property Primer Latham & Watkins | Intellectual Property Primer 3 As protecting your invention is a relatively costly endeavour, you and your employer should consider whether or not your invention is commercially viable and whether there would be a market for it. If the market need is not obvious, undertaking a market appraisal before applying for a patent is recommended. Since you have unique and detailed knowledge of your invention, your involvement as the inventor is vital during the protection stage of a patent application. Your involvement will include guiding the development of the patent description and claims. (See ‘What Does a Patent Look Like?’ at Section K for an example of descriptions and claims.) Involving IP experts to assist in the filing of your patent application will be necessary and you will be critical in providing adequate characterisation for the invention. C. WHAT MAKES AN INVENTION PATENTABLE? Although the law on patents differs between jurisdictions (See ‘How Do I Protect My Patent in Several Countries’ at Section G) there are some practically universal requirements for patents that were enshrined in the Paris Convention treaty and more recently TRIPS. They are: (i) The subject matter must be patentable Patents are available for most industrially applicable processes and devices. Certain things such as scientific discoveries, (e.g. merely identifying a new chemical) scientific theories, or mathematical methods cannot be patented1. In some jurisdictions, business methods and computer software are also excluded from patentability. (ii) The invention must be “new” There is a harsh rule of absolute novelty. Even the US is moving towards a “first-to-file” regime with absolute novelty. Therefore, to be regarded as novel, an invention must not form part of the ‘state of the art’. This essentially means that the invention must not have been made available to the public, either by its use in public or by its disclosure (other than under confidential conditions) before the priority
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