scholarly journals The Audience in Intellectual Property Infringement

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Intellectual Property ◽  
Copyright Law ◽  
Patent Law ◽  
Legal Rules ◽  
Definition Of ◽  
The Right ◽  
Intellectual Property Infringement

Every IP right has its own definition of infringement. In this paper, wesuggest that this diversity of legal rules is largely traceable todifferences in the audience in IP cases. Patent, trademark, copyright, anddesign patent each focus on a different person as the fulcrum forevaluating IP infringement. The fact that patent law focuses on an expertaudience while trademark looks to a consumer audience explains many of thedifferences in how patent and trademark cases are decided. Expert audiencesare likely to evaluate infringement based on the technical similaritybetween the plaintiff’s and defendant’s works. Consumers, by contrast, arelikely to pay more attention to market substitution and less attention tohow things work under the hood. Understanding the different audiences in IPinfringement is critical to understanding how the IP regimes defineinfringement.The focus on audience has normative as well as descriptive implications.Neither patent law, with its focus on experts and technical similarity, nortrademark law, with its market-based consumer focus, has it entirelycorrect. Rather, we suggest that as a general matter infringement of an IPright should require both technical similarity and market substitution.Assessing infringement through the expert’s eyes ensures that the lawprevents closely related works in the field while allowing latercontributions to the field that are sufficiently different. The consumervantage point ensures that we protect IP owners only when they have beenharmed in the marketplace.IP owners who want to show infringement should have to show both that thedefendant’s work is technically similar to their own from the expert’svantage point and that the defendant’s use causes the plaintiff marketharm. Copyright law, which does look both to experts and to consumers atvarious points in infringement analysis, is on the right track.

scholarly journals Droit de Suite – The Artists’ Resale Right

2012 ◽  
pp. 71-75
Author(s):  
Anthony O’Dwyer
Keyword(s):  
Intellectual Property ◽  
English Translation ◽  
Copyright Law ◽  
Property Law ◽  
Future Success ◽  
Traditional Sense ◽  
First Sale ◽  
Definition Of ◽  
The Right ◽  
Droit De Suite

This article looks at the droit de suite, which is a legally recognised right that forms part of copyright law and more widely, intellectual property law. The article reviews the present restrictive application of the law, analyses the definition of the “artist” and discusses the merit of a wider interpretation and application of the droit de suite. The English translation of droit de suite literally means the ‘right to follow’ and, in the context of the artists’ resale right, it allows artists to follow the future success of their artistic works. This future success involves an economic entitlement that the artist may participate in. In practical terms this means that, after the first sale of the artistic work, every subsequent public sale, for instance through a dealer or a gallery, is subject to a sort of royalty. Royalties in the traditional sense entitle various types of artistic creators, such as ...

scholarly journals Bioprinting and culture of tissues and organs in the BRICS countries (on the example of Brazil, India, China, and South Africa): approaches of legislation on intellectual property

2020 ◽  
pp. 35-57 ◽  
Author(s):  
Ksenia Michailovna Belikova
Keyword(s):  
Intellectual Property ◽  
3D Printing ◽  
Legal Regulation ◽  
Copyright Law ◽  
Comprehensive Analysis ◽  
Patent Law ◽  
Property Law ◽  
Medical Technologies ◽  
Brics Countries ◽  
The Right

This article examines the legal regulation of bioprinting (3D printing) and culture of tissues and organs in the BRICS countries through the prism of protection of intellectual property. The work demonstrates the means of protection of results acquired at each stage of bioprinting by the norms of copyright and patent law, as well as touches on the questions of the need (possibility) for patenting of “bioprinters”, “bioinks”, “biopapers”, etc. The goal of this research is to determine the necessary and possible boundaries for patenting (copyright law protection) of the means, products, processes and their moral-ethical acceptance in the society. The novelty of this work consists in a comprehensive analysis of the approaches of BRICS countries towards development, legal formalization and protection of bioprinting and culture of tissues and organs as medical and non-medical technologies from the perspective of intellectual property law. The author attempts to answer the question of (non)patentability of the process (means) and result (product) of bioprinting of tissues and organs, the “bioprinters” themselves, as well as the “bioinks” and “biopapers” they use. With regards to (non)patentability of tissues and organs acquired through 3D printing, a conclusion is made that there is an unfavorable environment for their patenting, though their production, in the author’s opinion, should the right to patenting providing that they meet the criteria (other conditions) set by patenting law of a particular country.

International Protection of Intellectual Property Rights: Special Refrence with Intangible Properties and Copyright Laws.

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Rohit P Singh ◽  
Shiv Kumar Tripathi
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Public Interest ◽  
Copyright Law ◽  
Patent Law ◽  
International Protection ◽  
The Public ◽  
Copyright Laws ◽  
Rapid Pace

In view of the rapid pace of technological, scientific and medical innovations in India and abroad, the intellectual property rights i.e., copyright, patent and other neighboring rights, have been recognized in Indian and foreign jurisdiction. Moreover, its scope and content have expanded pursuant to statutory amendments over the years. Growing recognisiont, expansion and protection of IPRs needs to harmonised with the public interest. Within this backdrop, copyright law, patent law etc. have made elaborate provisions and endeavours have also been made at international level to strike a balance between protection of individual’s IPRS and social interest. The present article tries to examine the contours of protection of IPRS at national and international levels with special reference to copyright law.

How Fair is Patent Litigation in China? Evidence from the Beijing Courts

2019 ◽  
Vol 241 ◽  
pp. 247-261
Author(s):  
Chenguo Zhang ◽  
Jin Cao
Keyword(s):  
Intellectual Property ◽  
Field Research ◽  
Patent Law ◽  
Intellectual Property Right ◽  
Patent Litigation ◽  
The Third ◽  
Upper Limit ◽  
Chinese Patent ◽  
The Right ◽  
Trade Partners

AbstractBy conducting field research and analysing judgments delivered in Beijing courts from 2004 to 2011, we find that the popular notion held by China's trade partners of the inadequacy of intellectual property protection is only partly supported by the empirical evidence. The likelihood of winning lawsuits is higher for foreign than domestic plaintiffs and the extremely low damages ruled by Chinese courts are due to particular causes. Courts lack consistent methods to calculate incurred losses in intellectual property right (IPR) infringements and consequently routinely apply the statutory damages whose upper limit is restricted by legislation. Efforts by Chinese legislators to enhance compensation by lifting the upper limit of awardable statutory damages in the Third Amendment of Chinese Patent Law (2008) did not seem to have an effect on our sample. Chinese policymakers should instead focus on the cause of the issue by providing more implementable guidelines for courts to calculate losses. Courts need to develop applicable conventions for calculating damages, based on objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. Thus, the new provision of the “right of information” on pirated goods proposed by the ongoing Fourth Amendment provides a significant weapon to combat counterfeiting.

Beijing IP Court clarifies standard of infringement for moral right of integrity

2020 ◽  
Vol 15 (3) ◽  
pp. 156-157 ◽  
Author(s):  
Jing Yang
Keyword(s):  
Intellectual Property ◽  
Copyright Law ◽  
District Court ◽  
The Right

Abstract Muye Zhang v China Film Co. LTD, Chuan Lu, Dream Author Film Co., Letv Film Co., No 587 (2016), Civil Final Instance, Beijing Intellectual Property Court, 8 August 2019 In Muye Zhang v China Film Co. LTD, et al, the Beijing Intellectual Property Court reversed the decision of Beijing Xicheng District Court and reiterated that ‘prejudice to author’s honour or reputation’ is not a prerequisite for infringement of the right of integrity under Article 10(4) of Copyright Law; in so doing, the court provided some much-needed guidance on evaluating a claim for infringement of the said right.

scholarly journals The Right of the Employee to an Invention Created in the Process of Labor Relations. (In Accordance With the Georgian - German Patent Legislation)

2021 ◽  
pp. 152-167
Author(s):  
Miranda Gurgenidze ◽  
◽  
Tamaz Urtmelidze ◽  
Keyword(s):  
Intellectual Property ◽  
Main Part ◽  
Legal Status ◽  
Patent Law ◽  
The Other ◽  
Scientific Article ◽  
German Patent ◽  
National Patent ◽  
The One ◽  
The Right

Creative activity, which ends with the creation of intellectual property objects, are mostly carried out by individuals employed in various private sectors or scientists working in higher education/research institutions. Therefore, the question who is the owner of the intellectual property object (invention), employee/inventor, whose direct participation with and usage of intellectual labor, the object was created by, or the employer, whose material technical base, experience and the other resources were used to create the invention, does not lose relevance. Georgia belongs to the continental, i.e. Romano-Germanic legal system. Modern Georgian intellectual property law has undergone a very interesting path of development since the restoration of independence. It should be noted that Georgia is the first country from the former Soviet republics to establish a national patent agency in 1992 (12,246). In this article, the authors focus on the basic regulations of Georgian and German patent law that regulate the ownership of an invention created by employees. As it is known, in Georgia the issue is resolved by the „Patent Law“, while in Germany, in addition to the patent law, there is an „Employee Inventions Act“. The scientific article consists of an introduction, a main part and a conclusion. The introduction presents the urgency of the legal problem. The main part, on the one hand, discusses the legal status of inventions created by employees, gives the relationship between patent law and labor law on this issue (on the example of Georgian legislation) and, on the other hand, the authors analyze the German ,,Employee Inventions Act“, which we find a detailed arrangement of an issue of interest to us in. The law is structured in such a way that the balance between the interests of the employee and the employer is maximally maintained, the rule of compensation is provided, a distinction is made between service and free inventions, and ways of resolving disputes between the parties are provided. The legal basis for arbitration is in the foreground. There is also a court of law under the jurisdiction of which these disputes are considered.

Design Protection

2017 ◽  
Author(s):  
Barton Beebe
Keyword(s):  
Intellectual Property ◽  
Legal Protection ◽  
The United States ◽  
Patent Law ◽  
The European Union ◽  
Design Law ◽  
Definition Of ◽  
International Instruments ◽  
Design Protection ◽  
Ip Law

This chapter surveys the legal protection of industrial designs, understood as the protection of the appearance of articles of manufacture. It discusses the definition of “design” according to both the European Union (EU) and the United States (US). It examines the international instruments that form the foundation of industrial design law, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention, and the Berne Convention, among others. It then focuses on the various areas of intellectual property (IP) law that make up design law, including sui generis design protection law, patent law, copyright law, and trademark law among others, with particular attention on these aspects of design law as they feature in the US and the EU.

scholarly journals HISTORICAL EXPERIENCE OF INTELLECTUAL PROPERTY REGULATION IN GALICIA AS A PART OF AUSTRIA AND AUSTRO-HUNGARY (1772–1918)

2021 ◽  
Vol 77 (4) ◽  
pp. 23-29
Author(s):  
Ihor Boiko ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Legal Regulation ◽  
Civil Code ◽  
Industrial Property ◽  
Historical Experience ◽  
Definition Of ◽  
The Right ◽  
First Time ◽  
Right Of Reproduction

The article analyzes the features of the legal regulation of intellectual property in Ukraine, in particular in the Ukrainian lands of Austria and Austria-Hungary (1772-1918). The author shows that the main source of legal regulation of civil relations, in particular intellectual property, in Galicia as part of Austria and Austria-Hungary (1772–1918) was the Austrian Civil Code of 1811. Property rights under the Austrian Civil Code of 1811 were the right of ownership, the right of possession, the right to pledge, and easements. The author highlights that things were divided into corporeal, disembodied, movable and immovable, used and unused, with price and without price. The bodily things were those perceived by the sense organs. Disembodied things included, first of all, property rights - the right to fish, hunt, and so on. It is shown that in the Austrian Empire for the first time the provisions on the legal regulation of intellectual property were provided for in the Civil Code of 1811 (Articles 1164‒1170). The author shows that the Austrian legal acts of 1846 for the first time regulated the free use of works, including the right of translation, citation. According to the law of 1846, the artist had to reserve the right of reproduction and exercise it for 2 years under the threat of losing his rights. It is emphasized that the presence of Western Ukrainian lands in the Austro-Hungarian monarchy, in comparison with the previous period of the Commonwealth, contributed to the spiritual progress of the Ukrainian nation, intensified cultural and artistic processes in Ukrainian lands. The author reveals that an important and new normative act in the field of intellectual property regulation was the Austrian Copyright Act for works of literature, art and photography, adopted on December 26, 1895. Attention is focused on the fact that the development of industrial property rights was carried out under the influence of economic development, which in the western Ukrainian lands as part of Austria was slower than in the economically developed regions of Austria, and thus - Austria-Hungary. It is concluded that the development of legal regulation of intellectual property in Galicia as part of Austria and Austria-Hungary (1772-1918) formed a certain experience, which was characterized by the specification of objects, subjects, the definition of intellectual property, the consolidation of copyright and their defense in court.

GENERAL ISSUES OF INTELLECTUAL PROPERTY PROTECTION AND PROTECTION

2020 ◽  
Author(s):  
Хусейн Вахаевич Идрисов ◽  
Тамила Джониевна Мимулатова
Keyword(s):  
Intellectual Property ◽  
Intellectual Property Protection ◽  
Creative Activity ◽  
Legal Definition ◽  
Definition Of ◽  
Intellectual Property Infringement

Статья посвящена одному из важнейших вопросов, связанных с творческой деятельностью человека - охране и защите результатов этой деятельности. В работе приводится характеристика основных видов интеллектуальных прав, а также перечисляются средств охраны и защиты интеллектуальных прав. Кроме того, в рамках статьи приводится легальная дефиниция понятия нарушения интеллектуальных прав. The article is devoted to one of the most important issues related to human creative activity - the protection and protection of the results of this activity. The paper describes the main types of intellectual rights, as well as lists the means of protection and protection of intellectual rights. In addition, the article provides a legal definition of the concept of intellectual property infringement.

AGREEMENTS ON THE DISPOSAL OF PROPERTY RIGHTS TO THE OBJECTS OF PATENT LAW AND «KNOW-HOW»: NEWS OF LEGISLATION

2018 ◽  
Author(s):  
Juliia Kanaryk ◽  
◽  
Vladyslav Nosinskyi ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Protection ◽  
Patent Law ◽  
Compulsory Licensing ◽  
Real Cost ◽  
Know How ◽  
Cost Of Drugs ◽  
The Right

The article is devoted to the review of novelties of the legislation in the part of disposition of property rights to objects of patent law and know-how. Based on the analysis of the existing legislation, it is established that there is an exclusive list of the following agreements: license to use the object of intellectual property rights; license agreement; agreement on the creation by order and use of the object of intellectual property rights; agreement on the transfer of exclusive intellectual property rights; another agreement on the disposal of intellectual property rights. It is noted that the agreement on the transfer (use) of «know-how» differs from that for the patent. The basis for granting the right to use «know-how» is not an exclusive right, but a de facto monopoly on the object of the agreement. «Know-how» in contrast to the patented invention can not be used without receiving it from the owner. The consequence of this is the need not only to grant the right of use under the contract, but also the transfer of the «knowhow» in full. It is noted that the legislator has significantly simplified the contractual procedures for granting the right to dispose of property rights for pharmaceutical companies due to the need to combat the pandemic. Lists of substances and medical procedures, medical equipment that cannot be the subject of patent protection have been established. It is emphasized that the legislator does not take into account the current level of digitalization, where the right to own or use intellectual property is certified by numerous electronic methods. For example, by confirming electronic licenses, user terms, affiliate programs with a number of intermediaries. Accordingly, it is necessary to expand the list of possible reliable ways of certifying contracts, which could be considered written or be equated to such a way. The bill №5552, which proposes amendments to the law «On Copyright and Related Rights», in terms of combating «patent trolling» was analyzed. The authors of the bill propose a number of administrative procedures that will help to respond quickly to such unfair actions of competitors. At the same time, it is noted that with the expansion of the contractual procedure, some of these cases could be avoided. It is proposed, as part of the fight against the COVID-19 pandemic, to introduce compulsory licensing, in order to reduce the real cost of drugs against the virus, as well as the logistics of specialized hospitals.

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