Intellectual Property Rights Product Launch IPR Richard Morris

Intellectual Property Rights Product Launch: IPR Richard Morris

Learning Objectives An ability to understand apply the legal tools available to protect the outcomes of your design work Itp. net Information is provided for educational purposes and does not purport to provide legal advice Richard Morris

Contents 1. Introduction 2. Intellectual Property 3. Intellectual Property Rights 4. Issues and management 5. Summary Fbi. gov Product Launch: IPR Richard Morris

Introduction Brighton Product Lab Product Launch: IPR Richard Morris

Intellectual Property? • Property . . . that is. . . intellectual ! i. e. things that can be owned but are mental rather than physical • Intangible property that is the result of creativity [OED] • “We have no single alternative description” [DTI Creative Industries group, 2000] Product Launch: IPR Richard Morris

Why protect it • Because its valuable; the global trade in ‘know how’ is bigger than the global trade in goods • Because it is easy to steal – 5 to 7 % of world trade is counterfeit – 38 % of business software is pirated – 60 % of UK citizens have illegally recorded music Product Launch: IPR Richard Morris

Why protect it • Global sales of copy cat goods are around £ 400 m pa. Brand fakes are a 1 bn euro market across the EU. 40 m products impounded by customs in 2012. • Includes 15% car parts, 42% film and music • Consumers are not concerned with buying fakes (which may be dangerous or illegal). Pw. C Report 2013 Ebay. . co. uk Product Launch: IPR Richard Morris

Why protect it Easier and easier to pirate design A six fold increase in electrical goods such as Dre Beats headphones and Ghd hair straighteners over the past 4 years. bbc. co. uk Product Launch: IPR Richard Morris

How to protect it • The common law of ‘passing off’ • Through specific statutory regulation - Intellectual Property Rights (IPR). CDPA 1988. • Patents, community (design) rights, copyright, trade marks • Plant rights, moral rights, performance rights, database rights Product Launch: IPR Richard Morris

Intellectual Property rights Brighton Product Lab Product Launch: IPR Richard Morris

Patents ; Protect technical functions such as materials, mechanisms or processes

Vase by Marcel Wanders Design Rights (community design) Concerned with 3 D form

Registered Design Rights aesthetic 2 D and 3 D form

Copyright the expression of an idea; literary, drama, art, creative works, software

Trade Marks distinctive elements

• Patents; data processing method, semiconductor circuits, chemical compounds, screen technology • Design right; case shape, button arrangement, button 3 D wave form • Copyright; software code, instruction manual, ringtone • Trade Mark; Samsung, G 800, symbian and java software • Patents protect technical functions such as materials or processes • Design right protects 3 D shapes. Registered Design protects aesthetic 2 D or 3 D shapes • Copyright protects the expression of an idea • Trade Marks protect elements which differentiate a product, service or company overview

overview 1. Ideas on their own are difficult to protect 2. Manifestations of an idea are protectable 3. The forms of protection are many and varied Product Launch: IPR Richard Morris

Patents Brighton Product Lab Product Launch: IPR Richard Morris

patents • Protect the composition, construction and manufacture of a substance or apparatus of a product or process – how things work, what they do, how they do it, what they are made of, how they are made Product Launch: IPR Richard Morris

patents • Belongs to the originator. . • Must be registered • Provides a monopoly of up to 20 years • Must be valuable, new and inventive Product Launch: IPR Richard Morris

patents Valuable: - • Potential uses/application should be identified. • Following from the ruling on the neutrokine alpha gene sequence which identified potential [uses] rather than actual medical uses (ruled out by the UK but overuled by the EU) Product Launch: IPR Richard Morris

patents New • never disclosed in public • Confidentiality agreements (or non disclosure agreements) Product Launch: IPR Richard Morris

patents Inventive • Not obvious • Beyond the state of the art Product Launch: IPR Richard Morris

patents • Traditionally excludes art, schemes, medical treatment and software . . • Stock control systems, on line shopping, ABS breaking systems, RAID technology, hyperlinks, search engines, networking, video compression, chipsets, buy-it-now systems, human growth hormone, dolly the sheep, micro-organisms, isolated cellular elements, gene sequences. . Amazons One click technology declined a patent (EU) Apples sliding finger unlock is allowed a patent (US) Image © Phandroid. com Product Launch: IPR Richard Morris

patents Filing • Applications are free Product Launch: IPR Richard Morris

patents Filing • Wording • Searching “A hand-held blower with an insulating chamber" Dyson Hairdryer patent, Oct 2013 Product Launch: IPR Richard Morris

patents • The filing date is crucial • Opposition: - within 9 months of publication or mention in the European Patent bulleting • After 9 months, challenges can be made through the courts via invalidity proceedings. Limitation: - patent can be limited in scope of revoked (even by patentee) • A superfast service accelerates the process to 90 days • Lasts 4 years renewable up to 20 years Product Launch: IPR Richard Morris

patents • No global patent • EPC a system for taking out patents in Europe • PCT a system for taking out worldwide patents Product Launch: IPR Richard Morris

Community Design (Design Rights) Brighton Product Lab Product Launch: IPR Richard Morris

Community design • Automatic protection for 3 D shapes and configurations against copying • Belongs to the originator - or the commissioner • Must be original • 15 year protection after conception, or 10 years after marketing • Weaker than copyright Vase by Marcel Wanders Product Launch: IPR Richard Morris

Community design • Sign and date design drawings. Photograph all models and prototypes. • Post your design drawings and photos to yourself or your solicitor by registered post and keep the sealed envelope safe. • Don’t save over old CAD drawings; keep them to show development. • Prior to showing designs to a third party ask them to sign a confidentiality agreement. Vase by Marcel Wanders Product Launch: IPR Richard Morris

Registered Community Design Brighton Product Lab Product Launch: IPR Richard Morris

Registered Community design • Original 3 D and 2 D shapes and configurations, contours, lines, colours, decoration, texture, material • form DF 2 A & fee of £ 60 (non refundable) • Statement of novelty • clear orthographic drawing or photograph • takes about three months Product Launch: IPR Richard Morris

Registered Community design • 6 months priority time • 5 yearly protection up to 25 years against any form of reproduction • Excludes ‘must fit’ parts • Must be aesthetic Product Launch: IPR Richard Morris

Registered Community design • Limited interpretation • Apple v Samsung (Galaxy) • Apple ‘hand held device’ (not i. Pad) registration; unornamented, rectangular, evenly rounded, flat, thin. • Samsung thinner with more decoration and therefore not infringing the apple ‘impression’ Product Launch: IPR Richard Morris

Registered Community design • Dyson v Vax • Dyson lost Product Launch: IPR Richard Morris

Registered Community design • Beats Electronics v Yamaha violation of patents and trade dress (“overall appearance of the shape and design of headphones including size, proportion and curvature of headband, yoke and earcups”) Product Launch: IPR Richard Morris

Copyright Brighton Product Lab Product Launch: IPR Richard Morris

Copyright • Automatic and typically lasts for 25, 50 or 70 years • Belongs to the originator • Prevents copying not independent creation Product Launch: IPR Richard Morris

Copyright • Expressions of creativity • Literary, Dramatic, Music, Art works (that are not mass produced) • Digital works, Software Product Launch: IPR Richard Morris

Copyright • George Lucas argued that he owned the copyright in storm trooper outfits and not the prop designer who was selling them separately • Lucas lost the UK case as the outfits were considered ‘functional’ and not a creative work of art (therefore not copyrightable by Lucas) • The alternative US rights could not be enforced as they were then out of date Product Launch: IPR Richard Morris

• 28 Jul 2016, repeal section 52 CDPA • Extends the copyright on furniture designed after 1957 from 25 years to 70 years (after the designers death). • Brings furniture into line with arts and music, and inhibits the replica trade (but not the ‘inspired by’ trade) • Inhibits the replica furniture trade, driven by companies such as Vitra. Mies van de Rohe Barcelona chair copy

Copyright • Related laws; The Digital Economy Act, June 2010 is a contraversial law that allows copyright owners to accuse people of illegal file sharing and use measure such as blocking access to websites. • Related rights; Moral, performance, database rights and a substitute format and image rights Crystalspraggins. blogspot. com • Moves towards global harmonisation Product Launch: IPR Richard Morris

Trade Marks Brighton Product Lab Product Launch: IPR Richard Morris

Trade Marks ™ • Are automatic ; noted by • Can be registered; noted by • Costs round £ 200 ® Product Launch: IPR Richard Morris

Trade Marks • Requires distinctive features or products or companies such as words, expressions or logos, • Includes colours, sounds, smells et’c • Requires categorisation Product Launch: IPR Richard Morris

• Coca Cola has a trade mark on the bottle shape, but generally the bar for achieving protection for 3 D shapes is very high. • Courts are also wary of granting technical monopolies that can arise from shapes

Trade Marks • Cadburys application to trade mark the colour purple (pantone 2685 C) for its chocolate products was appealed by Nestle and subsequently rejected because there were “multiple signs” involving different graphical permutations without a single consistent block of colour. Fanpop. com Product Launch: IPR Richard Morris

Trade Marks • No global trade mark • International protection through systems; • WISS (search) followed by individual countries, • (EU) Community Trade Mark, or International Registration (IR) Guildmastergaming. blogspot. com Product Launch: IPR Richard Morris

Trade Marks • Trade marks are not the same as domain names • Increasingly difficult to have one without the other Product Launch: IPR Richard Morris

Issues and Management Brighton Product Lab Product Launch: IPR Richard Morris

Issues; Generation • Invest to generate IP • Use contracts to clarify ownership Audi filed 9, 621 patents for the Audi A 6 (more patents than NASA) Product Launch: IPR Richard Morris

Issues; generation • Ensure IP is designed in • Chance favours the prepared mind • Don’t underestimate the presence of IP • When to check and to protect • Can be contentious Product Launch: IPR Richard Morris

Issues; protection • Experience, know how and expertise in a design can be difficult to protect Product Launch: IPR Richard Morris

Issues; protection Consider non IPR protection • Force? • Expertise • Secrecy (trade secrets) • Speed/Constant innovation • Branding Product Launch: IPR Richard Morris

Issues; infringement • A civil matter ; Check the paper trail of your design is sound and buy an example of the item that has been copied. Remember that parallel trade and repairs are permitted • Choose a solicitor that has experience in your industry sector. The solicitor will issue an LBA. The ‘letter before action’ sets out the complaint against the copyist and gives them the opportunity achieve early settlement (Court Rules require an LBA to be sent before any proceedings are taken. ) • Consider what you want achieve: - an undertaking to cease and desist - damages that reflect a quantifiable loss - an admission of liability and costs paid Product Launch: IPR Richard Morris

Issues; infringement • A need to fight infringers (particularly around branding) can be expensive and give rise to poor publicity • Apple (computers) defeated a rights battle with Apple Corp music, forced New York city to alter its Big Apple logo and is pursuing Polish online grocery sore A. pl. It has lost however its battle with German cafe Apfelkind Product Launch: IPR Richard Morris

Issues; infringement • Can be slow and expensive, even with special courts - fight or flight? • IPR therefore often only benefit large incumbents, and works against small, innovative start ups • Often not black and white. . . Product Launch: IPR Richard Morris

Yahoo is suing facebook for infringing 10 patents including on line advertising – yet facebook was an early innovator.

Issues; infringement • ACID; Trade organisation set up 1996. Design register for members, Legal hotline: one hour’s free consultation with specialist solicitors, ‘Watchdog’ presence at exhibitions • http: //youthoughtwewouldntnotice. com/bl og 3/ • Consider also IP insurance Product Launch: IPR Richard Morris

Issues; exploitation • Don’t underestimate the value of IP • Consider technology transfer • Beware monopolies • Contrast with open source idea sharing • ‘Patent Box’ (2013); a lower rate of corporate tax for profits derived from patents Nike Swoosh – designed by Caroline Davison for $35 Product Launch: IPR Facebook – company resource (50 p CD), company value $100 bn Richard Morris

Summary Brighton Product Lab Product Launch: IPR Richard Morris

Issues; infringement • IP generation • IPR protection; patents, community design, copyright, trademarks • Exploitation Product Launch: IPR Richard Morris