Intellectual Property Rights

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Intellectual Property Rights

Intellectual property can be instrumental to the value of any business. The ability to protect a business or an individual’s ideas, inventions and original processes is something that is considered essential to many establishments, particularly those that rely on innovative ideas and products as their unique selling point. Intellectual property rights span a wide range of situations and products, although the most common rights are designs, copyright, patents and trade marks. Each of these intellectual property rights aims to protect a different area of invention. Copyright protects works such as art or music; design protects the physical appearance of a product; trade marks protect the way in which a trader separates himself from his competitors; and patents protect the method by which a product is technically made up and functions. This latter category of intellectual property right can cause considerable difficulty to those applying for protection and those attempting to enforce existing rights. Technology and the associated functions are changing constantly and often being tweaked or altered to meet a new requirement. At what point does this become patentable and distinct from the original technology? This requirement to be innovative in some way is the subject of much debate. Determining when that extra step results in a new protectable technological item is the key to ensuring that the correct items are offered protection. Courts have grappled with the relevant issues in determining whether or not a patent should be protected and when an attack on validity should be successful. Throughout the years, various tests have been forwarded by the courts; however, consistency in relation to obviousness and the concept of novelty and invention have proved particularly troublesome and are often hotly debated in court proceedings. Elements of Patent Law Before determining the way in which the courts deal with the issues surrounding obviousness and novelty, it is first important to gain an understanding of what must be established in order to establish a valid patent, successfully. The basic definition of what is patentable is contained in Section 1(1) of the Patent Act 1977 (the “Act”). This Act states that in order to be patentable the invention must be new, must involve an inventive step and be capable of industrial application. The Act then goes on to consider each of these requirements, in more detail. Section 2 deals with the requirement that the invention is new. This requirement is commonly referred to as the “novelty” requirement. Section 2(1) states that for an invention to be novel or new it must not form “part of the state of the art”. Section 2(2) goes on to consider what “state of the art” actually encompasses. It defines state of the art as any matter (i.e. product, process, etc. ) that has previously been made available to the public by either a written or oral description. Simply put, if the invention has already been made available to the public, it is not going to be eligible for patent protection.

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