Intellectual Property Law知识产权法文档格式.docx

1、A patent is a monopoly right granted by the Government through the Patents Office to an individual who has invented a product or process . The basic objectives for granting this right are :to inform the public through publication of details from the application of the latest technol0gical advances ;

2、 to provide an incentive for innovation and thereby stimulate economic activity ;and to provides a reward for creative and innovative effort.Copyright This is an exclusive right to deal with original literary, dramatic, artistic and musical works. As well as protecting the fruits of creative effort,

3、 the legislation also protects those who have invested in those efforts by providing protection for sound recording , films and published editions of literary workDatabase right Information arranged in a methodical and systematic way, usually accessible by electronic means such databases ,was origin

4、ally protected under copyright law. However, since the implementation of the EU Directive on the legal protection of databases by the Copyright and Rights in Databases Regulations 1997, a new database rights has been created.Performers rights These are linked with copyright but are aimed at providin

5、g protection for the actual performance of copyright works as distinct from the copyright works themselves.Trade marksTrade marks are words or symbols used in relation to goods and services that distinguish to owners goods and services from those of another . Current legislation allows for the possi

6、bility of distinctive smells and sounds also attracting protection . The law in this area restrains others from applying the owners brand to their goods and services . The trade mark owners rights are protected by statue, if registered, or by common law , where the rights in the trade mark are based

7、 on use and goodwillDesignsDesigns that give visual appeal to mass produced goods may be protected as registered designs , whereas designs that are merely functional are protected as unregistered designs. A childs toothbrush in the shape of a dinosaur is an example of the former , whereas an item of

8、 garden equipment is an example of the latter. Confidential information Equitable remedies are available to restrain the use of trade secrets and other confidential information without the owners authority. Part Two: Protection and Justification The Protection Provided Legal recognition of intellect

9、ual property is provided by a negative form of protection . The legislation will usually describe the owners right as “exclusive “ , thus , by implication , giving the owner the right to restrain others from using his intellectual property without authority. It can be argued that the protection give

10、n is purely economic as the intellectual property owner is being provided with the exclusive right to exploit that property . However, since 1988 , there is also a recognition of moral rights under the Copyright , Designs and Patents Act 1988. The author of a work can, among other things , protect t

11、he integrity of the work using his right to object to derogatory treatment of the work under s. 80.Justification It would appear that the protection of intellectual property rights conflicts with policies in the European Economic Area to maintain free competition. However, it can be argued that the

12、market economy is stimulated by the fact that consumers are assisted in making choices from a selection of goods by the use of trade marks , for example , that distinguish one traders goods from those of another. Further , because the trade mark informs the consume about the quality of the owners go

13、ods, there is an element of consumer protection . Granting patents encouragers innovation so more goods are available on the market.Competition within the European Economic Area is protected by Articles 28 -30 of the Treaty of Rome, which provide for the free movement of goods and Articles 81-86 , w

14、hich legislate for free competition within the European Economic Area.Nationally , the abuse of intellectual property is check using a variety of means ,for example licences of right for patents are provided during the last four years fo the 20 -year term, and compulsory licences are also available

15、for unreasonable underuse of the patent by the patentee. Section 144 of the Copyright, Design and Patents Act restrains anti-competitive licensing in relation to copyright and s . 238 does the same in relation to unregistered design rights. Part Three Sources of Law Intellectual property law is main

16、ly codified . Each of the main subjects of intellection property is governed by statute and supported by delegated legislation. The following are the main statutory sources of law.The Registered Designs Act 1949 （as amended ） The Patents Act 1977The Copyright , Designs and Patents Act 1988.The Trade

17、 Marks Act 1994 ; and Copyright and Rights in Databases Regulations 1997.Confidential information and passing off are creatures of common law. Intellectual property cannot be protected on a mere national level and international influences can be within the above legislation , most of which was passe

18、d to enforce the international obligations of the United Kingdom as well as to update the law. For example , one of the objectives of the Trade Marks Act as 1994 was to implement Council Directive 89/ 104 /EEc of 21 December 1988 to approximate the laws of the Members States relating to trade marks,

19、 and the Patents Act 1977 was passed , among other things , to give effect to provisions in the European Patent Convention.A body of case law has developed on the interpretation of the above provisions by national courts and international bodies such as the European Patent Office . Common law also h

20、as a part to play in the areas of passing off and the law of confidence.Intellectual property law is administered in the Chancery Division of the High Court , with appeals to the Court of Appeal and House of Lords . The Patents Court is also part of the Chancery Division and will hear cases regardin

21、g patents and registered designs . Since the passing of the Copyright ,Designs and Patents Act 1988 , there is also a Patents Country Court.As we have already indicated , the nature the protection give for intellectual property is negative. The owners will usually go to court to restrain unauthorise

22、d use of their property by others . In a majority of cases, the remedy sought is the interlocutory injunction . An interlocutory injunction is an order sought by the intellectual property owner as first step in proceedings before the substantive issues regarding ownership and infringement are consid

23、ered. As a result , much of the case law that has developed has done so mainly from trial judges making a decision as to whether the plaintiff has satisfied him that he has at least an arguable case, because that is all a plaintiff needs to show at the stage of seeking an interlocutory injunction.Ca

24、ses on intellectual property law are reported in specialist law reports as well as the standard reports. Students of intellectual property law can , therefore, also consult the Reports of Patent , Design and Trade Mark Cases （RPC ） published by the Patents Office and the Fleet Street Reports （FSR ）

25、published by Sweet & Maxwell. Cases of the European Board of Appeal （EPOR） report on decisions concerning European patents . The European Intellectual Property Review （EPOR） is the main journal where academic work on the subject can be found.Exercises : 1. What is intellectual property ?Intellectual

26、 property is a kind of intangible personal property . It is a collection of ideas and information in a commercial context that the law recognizes as having a value by providing protection.2. What is patent?A patent is a monopoly right granted by the Government through the Patents Office to an indivi

27、dual who has invented a product or process.3. What is copyright?It is an exclusive right to deal with original literary, dramatic, artistic and musical works.4. What is database right?It is an exclusive right to deal with information arranged i na methodical and systematic way, usually accessible by

28、 electronic means such as database.5. What is performers right?It is a right linked with copyright bu are aimed at providing protection for the actual performance of copyright works as distinct from the copyright works themselves.6. What is trade mark?It is of words or symbols used in relation to go

29、ods and services that distinguish the owners goods and services from those of another.7. What designs are protected by law?Designs that given visual appeal to mass produced goods may be protected as registered designs , whereas designs that are merely functional are protected as unregistered designs

30、.8. What are the legal protections for intellectual property?The law recognizes the intellectual property right as “exclusive “and gives the owner the right to restrain others from using his intellectual property without authority.9. What is the justification for protection of intellectual property

31、?Protection of intellectual property will stimulate the market economy ,for example , the trade mark can help consumers in making choices from a selection of goods and granting patents can encourage innovation , so more better goods will be available on the market.10. What are the major sources of intellectual property law?The major sources of intellectual property law are statutes , such the Registered Design Act 1949 , the Patent Act 1977 , the Copyright , Designs and Patents Act 1988, the Trade Marks Act 1994 , the Co