Intellectual property

Industrial property


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Industrial Property is the term given to protective rights conferring an exclusive monopoly on exploitation and is obtained upon completion of filing and registration formalities.

Falling into this category are patents for inventions intended to protect innovations of a technical nature, designs and models aimed at protecting inventions of an aesthetic nature, plant variety rights for protecting creations in the agricultural domain (e.g. new types of roses, new maize hybrids, etc.), and also trade-mark law, which reserves for the owner of the trade mark the designation under which goods and services are marketed.

If copyright, otherwise known as literary and artistic property rights, which are obtained, at least in most European countries, without filing formalities and arise simply from creative activity, is added to industrial property, the resulting whole forms Intellectual Property.

 

A Patent aims to protect inventions in the field of industry (the term “industry” is taken in its etymological sense and covers, in particular, agriculture), subject to the criteria of novelty and inventive step. The right to protection conferred is generally 20 years from the date of filing of the application for protection, and this period may be extended in the case of inventions in the pharmaceutical or phytosanitary field and in certain circumstances up to 25 years by a Supplementary Protection Certificate (SPC).

In Europe, information technologies inventions such as algorithms, data-processing and business methods (also covered by copyright) cannot be protected in terms of their principle but are patentable as soon as they have an industrial application. But in the United States for example, they are patentable per se.

Special provisions also cover inventions in the biotechnologies field, for which more stringent criteria are applied.

The principal international conventions allowing freedom from the principle of strict territoriality of rights are those covering the European Patent, the future Community Patent (European Patent applying to the European Union), the Eurasian Patent, the Francophone Africa Patent, the Anglophone Africa Patent and the Gulf States Patent.

 

The law on Designs protects creations of an aesthetic nature in which the aesthetic aspect is arbitrary, i.e. not dictated by the possible function of the object for which protection is sought.

The protection period is highly variable from one country to another and is generally between 15 and 25 years, usually in the form of shorter, renewable periods. Two international conventions provide freedom from the strict principle of territoriality. The Hague Agreement confers the “international design” title, covering a limited number of countries, essentially in Europe. This Agreement was recently revised by the Geneva Convention – not yet in force - that is expected to increase the number of member countries. The other international convention is that covering Community Designs for European Union Member States.

 

Protection for Plant Variety Rights covers the creation of new plants, and its term of protection is also variable, often of 20 or 25 years, and the term may also vary depending on the botanical species involved. In addition to a very precise description of the creation method, specimens of a new plant also have to be filed as a way of guaranteeing that the species is stable over time.

In this area, also, there is an international convention providing freedom from the strict principle of territoriality – the European Convention for the Protection of New Varieties of Plants - which is managed by the Community Plant Variety Office at Angers in France.

 

A Trademark is not a property right covering an object as such but the distinctive sign attributed to it in order to distinguish it in commerce from the goods and services of the competition. A trade mark therefore protects the designation of the goods and, in most countries, services also. The term of protection is tending to be harmonized at 10 years, renewable indefinitely.

In the field of trade marks there are also two international conventions. The Madrid Convention provides two special legal systems known as the Madrid Agreement and the Madrid Protocol, which cover the “International” trade mark. Under their provisions, in order to have access to them, an applicant must have a registration or registration application in his country of origin. The other convention is that covering the Community Trade Mark, which covers all European Union countries. A third convention relates to Francophone Africa.

 

There exists also a protection sui generis for Semi-conductors Chips, but practically it is not used

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Priority : The period of priority is 1 year for patents, and 6 months for Trademarks and Designs, according to the Paris Convention or .the TRIPS Agreement of WTO (World Trade Organization).   It is 1 year for Plants Varieties, according to the UPOV Convention or the TRIPS Agreement.

 

 


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