Entrepreneurship and Innovation

Unit 8 : Intellectual Property and Intellectual Property Rights

By

Dr.Sandram Naluso, PhD

 The Concept of Intellectual Property (IP)
• Intellectual Property refers to creations of the mind such as inventions,
literary and artistic works; designs, and symbols , names, and images used in
commerce.
• Intellectual property is a legal definition of ideas, inventions, artistic works
and other commercially viable products created out of one's own mental
processes.
• It includes patents, trademarks, copyrights, and trade secrets that represents
important assets to the entrepreneur and should be understood even before
engaging the services of an attorney.
• In the same sense that real estate titles establish ownership of tangible
items, intellectual property is protected by such legal means as patents,
copyrights, and trademark registrations.
• The special aptitude of inventing or creating something unique is marked by
the use of intelligent thought or human intellect.
• In other words, a new and useful product process device or even an idea is
the creation of brain or human intellectual faculties.
• The use of human intellectual powers guides one along an advanced
technology or knowledge.
• Advanced technology or knowledge serves one to attain a definite result that
is a new and useful invention or creation.
• The advanced technology or knowledge conceived by the use of one’s
intellectual powers, therefore, is treated as an intellectual property of the
originator.
• The intellectual property is regarded as any other assets with commercial
value that the owner or rightful holder may possess, enjoy, use or dispose of.
 Intellectual Property Rights
• What are Intellectual Property Rights (IPR)?
• IPR is a general term covering patents, copyright, trademark, industrial
designs, geographical indications, layout design of integrated circuits,
undisclosed information (trade secrets) and new plant varieties.
• According to the matter of legal protection of IP, the exclusive rights conferred
by various Laws on the inventors, originators, holders or their assignees or
heirs to use, sell, assign, leave, license or will the priceless knowledge to
anyone are commonly known as intellectual property rights.
• Too often entrepreneurs, because of their lack of understanding of IP, ignore
important steps that they should have taken to protect these assets.
• In order to enjoy the benefits arising from the exclusive ownership of these
properties, the entrepreneur needs to protect these assets by the relevant
law.
• This is the reason why experts strongly recommend that those in creative
fields seek protection through official registration of their intellectual
properties.
• In Malawi, the official registration of intellectual property is done by the
Registrar general
 Classification of Intellectual Property Rghts
• The World Intellectual Property Organisation, which consists of 171 nations, clarifies
that the concept of intellectual property is relevant in any of the following areas:
• Inventions in all fields of human Endeavour;
• Scientific discoveries
• Industrial designs;
• Trademarks, service marks and commercial names and designations;
• Literary, artistic and scientific works;
• Performances of performing artists, phonographs; and
• Protection against unfair competition
• With relation to the legal regulatory systems providing protections to the interests of
the true inventors or their assignees, intellectual property rights are broadly
classified into two groups, namely:
(a) Industrial property rights, and
(b) Copyrights
 1. Industrial Property Rights
• Industrial property rights refer to the exclusive rights covering
(i) Patents
(ii) Designs, and
(iii) Trademarks, service marks, certification marks, collective marks & defensive
marks
(a) Patents - What is a patent?
• A patent is a contract between an inventor and the government in which the
government, in exchange for disclosure of the invention, grants the inventor
the exclusive right to enjoy the benefits resulting' from the possession of the
patent
• A Patent is a grant from the Government which confers on the grantee
(patentee) for a limited period of time the exclusive privilege of making, selling
and using the invention for which a patent has been granted and also
authorising others to do so
• What is a patent? A patent is an exclusive ownership right granted by a
country to the owner of an invention, provided the invention satisfies certain
conditions stipulated in the law.
• A Letters Patent (a kind of certificate) is issued to the owner of the invention
by the patent office of the country conferring this right.
• Exclusivity of right implies that no one else can make, use, manufacture or
market the invention without the consent of the patent holder.
• This right is available to the owner of the invention only for a limited period
of time.
• However, the use or exploitation of a patent may be affected by other laws of
the country which has awarded the patent.
• These laws may relate to health, safety, food, security etc.
• A patent in the law is a property right and hence, it can be gifted, inherited,
assigned, sold or licensed.
• As the right is conferred by the State, it can be revoked by the State under
very special circumstances for the benefit of public even if the patent has
been sold or licensed or manufactured or marketed in the meantime.
• The patent right is territorial in nature meaning thereby, that a patent
granted in one country can only be enforced in that country.
• In case the owner of the invention wishes to obtain patents in other
countries, the owner will have to file separate patent applications in
countries of his interest, along with necessary fees.
• In simple words, a patent is an authentic document issued by the Government
acknowledging something having been invented and granting a special
privilege, right or license to a person for his/her new and useful invention.
• One to whom a grant is made or privilege secured by patent and who enjoys
the monopoly or exclusive right to make, use or sell the invention is known as
patentee.
• The person to enjoy the exclusive privilege must make a new invention known
to the public and be competent to make others familiar with the facts,
occurrences and utilities of the invention.
• This process of familiarising with or imparting of knowledge for an
understanding of the pertinent matter is to be explicitly demonstrated in
detail by the inventor.
• The written document in which the explicit detail are given by the inventor is
referred to as a patent application.
• An entrepreneur who invents a new thing or improves an existing invention
needs to get legal protection for her invention through a patent right.
• A patent can be of the following forms:
(i) Utility patent: This relates to the novelty and usefulness of an invention,
which lays stress on how it works to obtain something new and useful.
- Utility patent is obtainable for a new machine, process composition or
method to make or produce something unique and useful.
- It is the common and commercially most valuable among all kinds of
patent granted there.
- A utility patent protects any new invention or functional improvements
on existing inventions.
 (ii) Design patent.
This is granted in recognition of the ornamental appearance of a useful object,
i.e. how it looks and not how it works.
• This patent protects the appearance of an object and covers new, original,
ornamental, and unobvious designs for articles of manufacture.
• Like utility patents, design patents provide the inventor with-exclusive right to
make, use and/or sell an item having the ornamental appearance protected by
the patent.
• This patent is appropriate when the basic product already exists in the market-
place and is not being improved in function but only in style.
• These patents are particularly important to companies such as shoe producers
and product package design firms that need to protect their ornamental
designs.

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 (iii) Plant patent.
• This is allowed in favour or a developer for a unique and new variety of
plant which did not exist before but has been reproduced by cutting
grafting or other asexual means
2.
Enforcement of Intellectual Property
Rights