Science and Development Network
News, views and information about science, technology and the developing world
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Definitions
List of terms for Intellectual property
Developing countries are increasingly recognising the importance of science in developing their economies, and the challenges that entails.
B
Bioprospecting
The collection and screening of plant and other biological material for commercial purposes, such as the development of new drugs, seeds and cosmetics. Bioprospecting expeditions often take place in biodiversity-rich environments, such as tropical forests and coral reefs.
C
Claims
This refers to the details provided in a patent application that identify the subject matter considered to be an invention or discovery. The claims define the boundaries of legal protection, encouraging patent attorneys to include as many claims as possible in a single application. Dependent claims that refer back to other claim(s) in the same application are also allowed.
Compulsory licence
Use of a patent without the authorisation of the right holder. It is required in TRIPS that a voluntary licence be requested before a compulsory one is issued, and that the patent-holder be paid adequate remuneration. But a voluntary licence can be waived in cases of national emergency, extreme urgency, or public non-commercial use.
Convention on Biodiversity (CBD)
The Convention on Biological Diversity. Signed at the Earth Summit in Rio de Janeiro in 1992, the convention asserts that natural resources belong to the sovereign state in which they exist — an assertion that some see as conflicting directly with commercial patent rights as defined under TRIPS.
Copyrights
Copyrights give authors legal protection for various types of work including literary and artistic works, motion pictures, sound recordings and computer programs. Copyright law protects authors by granting them exclusive rights to sell copies of their work in a tangible form (printed publication, sound recording etc). Legal protection covers the expression of the ideas contained, not the ideas themselves, which are not required to be novel.
E
European Patent Office
Body set up to administer patents issued under the European Patent Convention (EPC). Under the terms of the convention, a patent issued by the EPO, which is based in Munich, is valid in all signatory states of the EPC (which includes most, but not all, members of the European Union, as well as several additional states).
Exhaustion
Once an item of an intellectual property rights (IPR) protected product is sold for the first time, the rights the IPR holder has over that item are said to be exhausted (also known as the "first sale doctrine"). Under a policy of national exhaustion, although the IPR are exhausted in that country, the system prohibits imports of that product from a third country. Thus right holders can prevent parallel imports from other countries. International exhaustion means that sale in any one country exhausts rights everywhere (allowing parallel imports wherever price differentials make it commercially attractive).
F
First to file
A patent system, such as those used in Europe and Canada, is described as being 'first to file' — as opposed to 'first to invent' (see below) — if the first individual to file a patent application for a specific invention is considered to be entitled to the patent. The timing of the patent application gives the applicant priority over others who may claim rights to the same invention.
First to invent
In contrast to 'first to file' systems (see above), the 'first to invent' patent system means that an individual is eligible to apply for a patent on an invention if he or she can prove — for example, by producing a notarised notebook — to have been the first to conceive and demonstrate a novel idea. Such a system is now only operated by the United States.
G
Generic Drugs
When a patent on a drug expires, it can be legally produced by any other company. Such copied drugs are known as generic drugs. In countries where the patent has expired or where the drug was never patented, manufacturing and selling a generic drug is legal subject to approval from the national drug regulators. But generic drug manufacturers cannot sell a drug in a country where it is still patent-protected.
Grace period
The length of time following the publication of an original idea in which the author of such an idea can apply for a patent. The United States, for example, allows a grace period of 12 months after publication; in Europe, in contrast, there is no grace period, and as a result a patent application on a new idea must be made before details of that idea are made public (for example through publication in the scientific literature).
I
Infringement
As applied to patents, infringement refers to making, using or selling without the permission of the inventor an invention for which a patent is in force.
Intellectual property rights (IPRs)
Generic names for intellectual property rights, covering patents, copyrights and trademarks. Recent additions to the category of intellectual property include industrial design and integrated circuit topography (the term used to describe the three-dimensional configuration of electronic circuits).
M
Moral rights
The term used to describe the rights that are retained by an author over their work. It includes the right to be identified as the author of such a work (the 'right of paternity') and the right to object to having their works altered in ways that would prejudice their reputation (the 'right of integrity'). Such rights persist even after the copyright to the work in question has been sold or transferred, although authors in some countries (e.g. the United Kingdom) can 'voluntary' agree to waive their moral rights.
N
Non-obvious
One of the requirements of United States patent law is that a discovery should be 'non-obvious'. This is usually taken to mean that an individual with experience in the relevant industry or with working knowledge of the relevant technological field would not consider the invention to be obvious.
O
Opposition
This is the name given to the process under which either members of the public or other interested parties — for example competing private companies — may object to the granting of a trademark registration or a patent if they can produce grounds that they consider valid for doing so.
P
Parallel imports
Also called 'grey-market imports'. Goods that are brought into a country by a third party trader without the authorisation of the IPR holder, after those goods were placed legitimately on the market by a licensed producer in another country.
Patent
A legal certificate that gives an inventor exclusive rights to prevent others from producing, using, selling, or importing the invention for a limited period (usually 20 years). Legal action can be taken against those who infringe the patent by copying the invention or selling it without permission from the patent owner. Patents can be bought, sold, or licensed. A patent application must satisfy an examiner that the invention is novel, useful (i.e. has an industrial application), and involves an inventive step. The latter requirement usually means that the invention should not be obvious to a person skilled in the relevant technology. Patents can cover products, processes, or uses, or a combination of these.
Plant breeders' rights
Plant breeders' rights (sometimes called plant variety rights / protection) are a type of intellectual property right for plant varieties. To be eligible for protection a variety must be distinguishable by one or more characteristics from any other variety (distinct), remain true to its description after repeated reproduction or propagation (stable), homogeneous with regard to the particular feature of its sexual reproduction or vegetative propagation (uniform), and novel.
Prior Art
In patent law, prior art refers to publicly-available existing knowledge that is relevant to an invention for which a patent applicant is seeking protection. If the prior art is too closely related to the claimed invention, the application may be rejected on the grounds of lack of novelty. Patent offices are required to check for the absence of prior art before awarding a patent.
T
Trade-related Aspect of Intellectual Property Rights (TRIPS)
The Agreement on Trade-related Aspect of Intellectual Property Rights, or TRIPS, one of the main results of the Uruguay Rounds of the General Agreement on Tariffs of Trade, concluded in 1994, is now the key international agreement promoting the harmonisation of national intellectual property rights systems. TRIPS is intended to introduce new rules and disciplines for global trade concerning (1) the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights, (2) effective and appropriate means for the enforcement of trade-related intellectual property rights, and (3) effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments.
Trademarks
A marketing tool used to support a company's claim that its products or services are authentic or distinctive compared with similar products or services from competitors. Usually consists of a distinctive design, word, or series of words placed on the product label. A trademark owner has the exclusive right to prevent third parties from using identical or similar marks in the sale of identical or similar goods or services where doing so is likely to cause confusion.
Traditional knowledge
Refers to the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles. It represents part of the (unregistered and often unappreciated) intellectual property of such communities and includes agricultural biodiversity, sustainable land-use and natural resource management practices. Traditional knowledge of medicinal and crop plants continues to be a valuable source of information for modern pharmacology and biotechnology. Industrial patents that exploit this knowledge are seen by some as effectively theft and referred to as biopiracy.
U
UPOV
UPOV is based on the French name for the International Union for the Protection of New Varieties of Plants, an intergovernmental organisation based in Geneva. It administers the UPOV Convention, which requires members states to provide for an intellectual property rights system for the protection of plant varieties commonly known as plant breeders' rights. The convention provides a model for these national systems.
W
World Trade Organisation (WTO)
The World Trade Organisation, the successor to the General Agreement on Trade and Tariffs, whose members have agreed to comply with the terms of the Agreement on Trade-related Aspect of Intellectual Property Rights, or TRIPS (see above).
