Industrial property concerns the technical, ornamental and aesthetic aspects of an object.
The main types of industrial property rights are:
- patents which give legal protection for a new and original invention or process
- Industrial designs which concern the ornamental or aesthetic aspect of a product
- topographies of semiconductor products which determine the exact location of each element having an electronic function within the integrated circuit. The legal protection concerns the configuration of an integrated circuit within a chip
Industrial property also refers to distinctive signs such as:
- trademarks which are distinctive signs used to differentiate the trademark owner’s goods and services from those of competitors. The legal protection concerns the use of a name as a distinctive element to individualise the owner’s goods and services
- protection of secret business information (trade secret) and against unfair competition also falls within the scope of Industrial Property
To benefit from legal protection, patents, industrial designs, topographies and trademarks need to be registered with a national or international office for which a procedure should be followed. Registration constitutes proof of the creation since it determines a legal date and gives a precise description of the creation. Then, if rights are infringed, the holder will be in a better position to establish their property rights and, if necessary, take legal action.
Broadly speaking, copyright protects literary, musical and any artistic work (writings and any type of publication, paintings, melodies, images and films). It also protects databases, software, satellite broadcasting and cable transmissions.
The protection is informal. This means that the work is protected as soon as it is expressed in a tangible manner (i.e. physically formed or published). The quality or length of the work is of no account as the law protects new and original artistic or literary works regardless of their interest or size.
Protection covers the formulation and expression of the ideas but not the ideas themselves. Indeed, ideas can never be protected because they are no one’s property. Nonetheless, copyright laws protect the way they are exposed in the work.
In general protection last approximately 70 years after the death of the author but the length depends on national law. When the period of protection is over the work falls into the public domain.
The object of IP is to protect a work that has only an abstract existence and therefore cannot be perceived by the senses, unlike a building or a car. However, like material goods, intellectual creations may be subject to a property right.
It is necessary to distinguish between two concepts when speaking about IP.
Moral right This grants the author paternity of the intellectual creation and protects the personal and reputational value of a work, as opposed to its purely monetary value. Moral right is especially important under copyright law since the author has the right to decide whether they want to disclose the work to the public. They can set the conditions of its commercial exploitation and defend its integrity. As the author is deemed to have the moral right to control their creation, moral right relates to the connection between an author and their creation.
Economic right This relates to a creation’s commercial value and grants the author a monopoly to exclusively exploit their creation for a certain period. This fosters industrial and commercial relations as well as creativity. Under this monopoly, right holders can prevent third parties from using, manufacturing and selling the creation without authorisation. If rights are infringed the author can take legal action against unlawful use of their literary, artistic or industrial creations.
This gives the author the right to:
- use their creation meaning that they are entitled to use, manufacture, sell, etc., products or processes that use the protected creation
- license the creation to third parties in return for a fee
- grant the ownership to a third party
- take legal action against unauthorised use of their IPRs
The answer is yes. The Ariane-5 launcher is a good example of cumulative protection. This European launcher benefits from three different forms of protection under IPR laws. Its shape and style are protected by a registered industrial design, its name is protected under trademark law and finally several parts of its Vulcain motor are patented.
Licenses are defined as agreements under which the owner of the IPR (the licensor) grants a person (the licensee) full or partial enjoyment of their rights of exploitation in return for a fee.
In general, licenses must be granted in writing and registered at a national patent or trademark office. The agreement provisions determine the license fee, when appropriate, and define the rights granted, i.e. the duration of the contract, the arrangements for its execution (manufacture and sale, or sale only, etc.) and the geographical area over which the entitlement applies.
Lastly, licenses may be exclusive or non-exclusive:
- the licensor of an exclusive license may not exploit the invention themselves or grant other licenses covering the same territory
- the licensor of non-exclusive licenses may freely exploit the invention or grant other licenses to third parties
Each party to a joint development agreement (JDA) has something of value to offer and is interested in working as a partnership in order to create something new of value. That is why it is of great importance to elaborate, before beginning a joint development project, a written agreement addressing the fundamental aspects of how to treat the intellectual property that will be used or developed during the JDA.
Therefore, questions of ownership, use and enforcement have to be answered in the JDA in order to precisely define the status of IPRs and carefully address each parties rights and responsibilities, both during and after the project.
The JDA should clearly separate intellectual property owned by each party before the JDA, jointly developed pursuant to the JDA and finally, developed independently during the life of the JDA.
Ownership issues often come up with issues of use. Each party usually wants to use what the other owns and the owner wants to place some restrictions on the extent of the use. The precise conditions that will be attached to such a licence are the subject of negotiations by the parties. Many parties to JDA seek to restrict the use of jointly developed IP by each other to prevent use by their respective competitors.
The parties should define the conditions under which the joint IP will be enforced, any rights of refusal and the allocation of the expenses, control and recoveries of any enforcement action.