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21/03/2006 Dept. of Pharmaceutics 1 AN OVERVIEW OF TRADEMARKS, COPYRIGHT AND PATENTS BY Dr. Basavaraj K. Nanjawade, M.Pharm., Ph.D Asst. Prof. Department of Pharmaceutics, KLES College of Pharmacy, JN Medical College Campus, BELGAUM – 590 010 E-mail: [email protected]

An Overview Of Trademarks, Copyrights And Patents

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Page 1: An Overview Of Trademarks, Copyrights And Patents

21/03/2006 Dept. of Pharmaceutics 1

AN OVERVIEW OF TRADEMARKS, COPYRIGHT AND PATENTS

BY

Dr. Basavaraj K. Nanjawade, M.Pharm., Ph.D

Asst. Prof.Department of Pharmaceutics,

KLES College of Pharmacy, JN Medical College Campus,

BELGAUM – 590 010E-mail: [email protected]

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ConstitutionConstitution

The Congress shall have the powerThe Congress shall have the power

. . . to promote the progress of . . . to promote the progress of science and useful arts, by securing for science and useful arts, by securing for limited times to traders, authors and limited times to traders, authors and inventors the exclusive right to their inventors the exclusive right to their respective trading, writings and respective trading, writings and discoveriesdiscoveries

. . . .. . . .

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TRADEMARKTRADEMARK

Protection for Traders

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What is a Trademark?What is a Trademark?

A trademark is something that distinguishes your products from others within the market.

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A Trademark cab be:A Trademark cab be:

A word or nameA logoA sloganA design

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In certain cases, this can be In certain cases, this can be extended to…extended to…

A colour schemeA smellA sound

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Trademark or Trade nameTrademark or Trade name

A trade name is slightly different to a trademark. A trade name refers to the name of the business or company, where a trademark refers to products/services.

However a trade name can be used as a trade mark if it is used to help distinguish between products and service.

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Objective of TrademarksObjective of Trademarks

1. To prevent confusion among consumers as to the source of goods or services;

2. To permit the trade mark owner to control the products’ or services’ reputation.

3. To protect the good will that the trademark owner has built up in his products and services.

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Qualifying as a TrademarkQualifying as a Trademark

Trade marks cannot be freely registered and will be investigated thoroughly before registration is approved.

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To qualify for registration the To qualify for registration the trade mark must;trade mark must;

. A trade mark is a symbol or sign which differentiates one type of business from another.. A sign can include a business logo, words/content or anything similar.. In order for a trade mark to be registered, it must be sufficient distinct for the service/ goods it is applied to cover.. Obviously, it must not be similar to existing trade marks, nor can it be deceptive or illegal in any way.

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Registering a Trade markRegistering a Trade mark

You cannot simply apply for a trademark and assume it will be accepted – there is a rigorous examination process which takes place by the patent office before you will find out it your application has been successful. You can read about the complete application processwww.uspto.orgwww.patent.gov.uk

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What is the What is the symbol symbol

This symbol stands for registered trade mark (RTM), and clearly can only be used once your are the owner of the mark.The symbol usually goes after the trade mark, in a smaller type size than the mark itself, and in a raised position, but this is not compulsory.

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Can I Use The TM SymbolCan I Use The TM Symbol

A company/trade can use the TM symbol, however this does not mean the trade mark has been registered.

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Service Marks (SM)Service Marks (SM)A service mark (SM) is exactly the same as a trade mark with the exception that it.

The same rules and principles apply will consider trademarks to include service marks unless for any reason they need to be addressed separately.

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What Does What Does , TM & SM mean & , TM & SM mean & when can I use them?when can I use them?

. A party can display next to a trademark or service mark that has been legally registered. . This symbol will inform people that you have the right to take legal action if the trademark or service mark is violated.

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What Does What Does , TM & SM mean , TM & SM mean & when can I use them?& when can I use them?

. A Party can display TM next to a trademark that has not been registered. However, there must be a public claim to the trademark.

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What Does What Does , TM & SM mean , TM & SM mean & when can I use them?& when can I use them?

False claims to a registered mark-using the with non-registered marks-is seen as an act of fraud and offenders will be prosecuted.

A party can display SM next to a service mark that has not been registered. However, there must be a public claim to the service mark.

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COPYRIGHTSCOPYRIGHTS

Protection for Authors

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COPYRIGHTCOPYRIGHT

A copyrightA copyright is an author’s is an author’s legal ownership of a creative legal ownership of a creative work. Examples of such creative work. Examples of such creative works include a writing, a works include a writing, a pictorial work, a three pictorial work, a three dimensional sculptural work, a dimensional sculptural work, a musical composition. musical composition.

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What Is Protected by Copyright?What Is Protected by Copyright?

"original works of authorship fixed

in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

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Conditions for CopyrightConditions for Copyright

Must be original work: Authorship must be original and cannot simply be copied or reproduced from another author.

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Conditions for CopyrightConditions for Copyright

Must be fixed in a tangible medium: Cannot reside in the author's mind, but must be transferred from the author’s mind onto a fixed tangible medium, such as a writing, a sculpture, a musical work, etc.

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Not Protected By CopyrightNot Protected By Copyright

Ideas are not protected:including concepts, methods of

operation, business systems, processes, procedures, discoveries and natural laws.

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Not Protectable By CopyrightNot Protectable By Copyright

Facts and research resultsWork without original authorshipFacts or discoveries Government works created by the

government.

These are not proper for copyright protection, but rather should be protected via the patent system.

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Protectable WorksProtectable Works

Literary works and computer programs.

Pictorial, graphic and sculptural works .

Copyright in useful articles: The aesthetic aspects of a useful article may be protected by CR if they are separable from the functional, structural components

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Protectable WorksProtectable Works

Blueprints Sound recordings Architectural works Fictitious characters Compilations Derivative works

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Rights Under Copyright LawRights Under Copyright Law

1) to reproduce or copy the work; 2) to prepare derivative works; 3) to distribute copies to the public; 4) to perform in public (such as for a play, a musical composition); 5) the right to display the work in public

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Fair UseFair Use

Fair use is not an exception to infringement, rather, once infringement has taken place it provides a legal excuse for having infringed on the author's copyright.

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Who Owns The Copyright?Who Owns The Copyright?

The author of the work is the initial owner of the copyright.

Works made for hire: the copyright is owned by the employing party

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Work Made For HireWork Made For Hire

1) Work created by an employee while acting within the scope of the employment, particularly where the hiring party has a right to exercise control over the author in the way the work is created.

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Work Made For HireWork Made For Hire

2) Work by independent contractor a) the work is a contribution to a

collective work; part of an audiovisual work; a translation; a supplement; a compilation; an instructional text; answers for a test; or an atlas; AND

b) if the parties agree in a written contract that the work will be considered a "work made for hire."

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Copyright NoticeCopyright Notice

Not required in the U.S.

Required in other countries.

Example:

– © 2005 by T-series. All Rights Reserved.

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Copyright RegistrationCopyright Registration

Copyright is automatic; registration is not required.

However, registration puts the world on notice and provides the author with additional rights in infringement litigation.

Registration is recorded by the Copyright Office of the National Library of Congress.

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Term Of CopyrightTerm Of CopyrightWorks created during or after 1978: Works created during or after 1978: copyright good for the life of the author copyright good for the life of the author plus 70 years.plus 70 years.

Anonymous or pseudonymous work, or Anonymous or pseudonymous work, or work made for hire: 95 years from work made for hire: 95 years from publication or 120 years from creation, publication or 120 years from creation, whichever expires first.whichever expires first.

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Remedies For InfringementRemedies For Infringement InjunctionInjunction

Seizure and disposal ofSeizure and disposal of

infringing articlesinfringing articles

Monetary recoveryMonetary recovery

•Actual damages or Statutory damagesActual damages or Statutory damages

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Copyright ExpiresCopyright Expires

When copyright has expired anyone can use the material without infringing copyright. Copyright cannot be renewed.

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PATENTSPATENTS

Protection for InventorsProtection for Inventors

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What is PatentsWhat is Patents

A ‘Patent’ gives an inventor exclusive rights to use their invention for a limited time. These rights will prevent other parties from copying or selling the invention without the permission of the inventor.

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What Invention can be What Invention can be Patented?Patented?

. Products

. Process (functional or technical)

. Software

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A Patent Is A Negative RightA Patent Is A Negative Right

A patentA patent is a government issued deed is a government issued deed which confers upon the patentee(s) (the which confers upon the patentee(s) (the inventor who has been granted a inventor who has been granted a patent) the right to exclude others from patent) the right to exclude others from the invention.the invention.

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How will I know if my Invention is How will I know if my Invention is NewNew

Inventors can (Optional) file for a process whereby the patent office searches through existing files to determine if your invention has already been patented.

The patent office will also decide whether your invention is not simply a progression of an existing product/process on approval, you are free to apply for a patent.

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Types of PatentsTypes of Patents

. Utility Patents

. Design Patents

. Plant Patents

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Utility PatentUtility Patent

Utility Patents:Utility Patents: are issued for “. . . any are issued for “. . . any newnew and and usefuluseful processprocess, , machinemachine, , manufacturemanufacture, or , or composition of composition of mattermatter, or any new and useful , or any new and useful improvement thereof.” improvement thereof.”

Valid for twenty (20) years from the date Valid for twenty (20) years from the date of filing or the earliest priority date.of filing or the earliest priority date.

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Types of PatentsTypes of Patents

Design Patents:Design Patents: are issued for are issued for novel, non-obvious, ornamental novel, non-obvious, ornamental design in an article of manufacture, in design in an article of manufacture, in other words, for its appearance.other words, for its appearance.

The term of a design patent is The term of a design patent is fourteen (14) years from the date of fourteen (14) years from the date of grant.grant.

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Types of PatentsTypes of Patents Plant Patents:Plant Patents: are issued for new are issued for new varieties of plants which have been varieties of plants which have been asexually reproduced. asexually reproduced.

The new variety must be novel, distinct, The new variety must be novel, distinct, non-obvious and must have been non-obvious and must have been asexually reproduced.asexually reproduced.

Plants discovered in nature are not Plants discovered in nature are not patentable.patentable.

A plant patent has the same length of A plant patent has the same length of term as a utility patent.term as a utility patent.

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Requirements for PatentabilityRequirements for Patentability

MUST BE USEFULMUST BE USEFUL

MUST BE NOVELMUST BE NOVEL

MUST BE NONOBVIOUSMUST BE NONOBVIOUS

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Invention Must Be UsefulInvention Must Be Useful““Utility”, is generally self-evident Utility”, is generally self-evident from a description of the inventionfrom a description of the invention

Utility is usually easy to meet.Utility is usually easy to meet.

Except in your case.Except in your case.

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Invention Must Be NovelInvention Must Be Novel

The PRIOR ARTThe PRIOR ART

NOVELTY = DIFFERENTNOVELTY = DIFFERENT

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Invention Must Be Non-ObviousInvention Must Be Non-Obvious

Nonobvious to those of ordinaryNonobvious to those of ordinary

skillskill

Obviousness – degree of noveltyObviousness – degree of novelty

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Anything New Under The SunAnything New Under The Sun

A new composition of matter A new composition of matter qualifies for a patent, be it inanimate qualifies for a patent, be it inanimate matter or living matter. matter or living matter.

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What Is Not PatentableWhat Is Not Patentable Natural lawsNatural laws

Mathematical expressionsMathematical expressions

Abstract ideas Abstract ideas

Anything not USEFUL, NOVEL and Anything not USEFUL, NOVEL and NON-OBVIOUS (perpetual motion NON-OBVIOUS (perpetual motion machine)machine)

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Computer ProgramsComputer Programs

Computer programs applied to Computer programs applied to

producing useful results may beproducing useful results may be

patentable.patentable.

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Business MethodsBusiness Methods

May be patentableMay be patentable

If useful, novel, If useful, novel,

and non-obviousand non-obvious

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Who Gets The Patent?Who Gets The Patent?

Foreign countries = first toForeign countries = first to

filefile

U.S. = first to inventU.S. = first to invent

U.S. will likely changeU.S. will likely change

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Public DisclosurePublic Disclosure

It is best to file a patent application before disclosing an invention to the public.

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Don’t Delay in FilingDon’t Delay in Filing

Part of the patent law, prohibits issuance of a patent if "the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States."

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You Snooze, You LoseYou Snooze, You Lose

This year is a critical date

You will lose all your rights

Invention goes into public domain

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File Before DisclosingFile Before Disclosing

The inventor always runs a higher risk when disclosing the invention before a patent application is filed.

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What to File?What to File?

Provisional Application

Regular Utility Application

International Application

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Provisional ApplicationProvisional Application

– No specific format required– Must provide enabling disclosure– Obtain quick filing date (“first to file”)– Remains in effect for one year– Must file Utility Application before expiration

to maintain the priority filing date

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Regular Utility ApplicationRegular Utility Application

but are not an absolute requirement There is an accepted format, but at minimum requires:– A written description containing an enabling

disclosure; and– At least one claim.– One or more drawings may be helpful

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International ApplicationInternational Application

Patent Cooperation Treaty (PCT)U.S. is signatory memberUnified examination processInternational search and opinionIf opinion is favorable, file the PCT

application in jurisdictions of choice

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Patent PendingPatent Pending

Once a patent application has been filed, the invention may be marked with the designation “patent pending” as a means of notifying the public of a claim to legal ownership by the inventor.

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Patent Pending Protection?Patent Pending Protection?

NO PROTECTION FROM COPYING

Right to exclude others = Patent

Patent pending = notice that a patent application has been filed

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The Patent ApplicantThe Patent Applicant

U.S. application must be filed in the name(s) of the inventor(s)

Employer may be the owner

Assignment acknowledges ownership

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Who Is An Inventor?Who Is An Inventor?

Inventor = material contribution Inventor = material contribution

All inventors must be namedAll inventors must be named

Not like authorship in a paperNot like authorship in a paper

Inventorship confers legal rightsInventorship confers legal rights

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Collaborative WorkCollaborative Work

Co-Investigators from two Co-Investigators from two

UniversitiesUniversities

May be co-inventorsMay be co-inventors

Both Universities will own theBoth Universities will own the

inventioninvention

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Questions of Coinventorship?Questions of Coinventorship?

Contact the Office of Technology Contact the Office of Technology

TransferTransfer

They will help you sort this outThey will help you sort this out

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So You Filed, Now What?So You Filed, Now What? Application published at 18 monthsApplication published at 18 months

Administrative actions within six monthsAdministrative actions within six months

First substantive review may take 1-2First substantive review may take 1-2

years after filing (Office action)years after filing (Office action)

Overall process (prosecution) will typicallyOverall process (prosecution) will typically

take up to about 3 years.take up to about 3 years.

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What Do we Need To Know?What Do we Need To Know?

Patent Attorney or Patent AgentPatent Attorney or Patent Agent

•Must be licensed by PTOMust be licensed by PTO

Must pass the “patent bar examMust pass the “patent bar exam

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Education RequirementEducation Requirement

Patent Agents and Patent Attorneys Patent Agents and Patent Attorneys

are typically engineers or scientistsare typically engineers or scientists

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We Are The ExpertWe Are The Expert

We must help the patent attorney We must help the patent attorney

understand our invention.understand our invention.

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The Attorney or Agent’s JobThe Attorney or Agent’s Job Obtaining a patent is only part of it.Obtaining a patent is only part of it.

The trick is to obtain the best patentThe trick is to obtain the best patent

possible.possible.

This may be the broadest patent This may be the broadest patent coverage permitted by law, in view of coverage permitted by law, in view of the prior art.the prior art.

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Is It Patentable?Is It Patentable? “ “Chance favors the prepared Chance favors the prepared mind.” Louis Pasteur.mind.” Louis Pasteur.

Be on the lookout forBe on the lookout for NOVELTYNOVELTY..

Leave the rest to Attorney or Leave the rest to Attorney or Agent’s.Agent’s.

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Difference between Patent, Difference between Patent, Copyright and TrademarkCopyright and Trademark

Patent allow the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator’s

Trademark on the other hand is not concerned with how a new technology is used. It applies to the names, logos and other devices-such as color, sound and that are use to identify the source of goods or service and distinguish them from their competition.

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Difference between Patent, Difference between Patent, Copyright and TrademarkCopyright and Trademark

Copyright applies to expressive works such as novels, fine and graphic arts, music, records, photography, software, video, cinema and choreography. It’s possible to get a patent on technologies used in the arts, but it is copyright that keeps one artist from stealing another artist’s creative work.

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21/03/2006 Dept. of Pharmaceutics 77Questions?Questions?