Intellectual Property (Term Paper Sample)

Intellectual Property
First Name and Last Name
Class
Date
Introduction
The concept of intellectual property governs the creation of things from the human intellect. Intellectual property rights serve to protect creators and inventors by giving them rights on ownership of their innovations. Besides, it helps to encourage the invention of intelligent products. Intellectual property can be categorized into copyright and neighbouring rights, designs, plant breeders' rights, patents, trademarks, trade secrets, and service masks. Broadly, copyrights offer protection on fine arts such as music, poems, novels, drawings, and illustrations. Copyrights are governed by the Copyright Act (1998). On the other hand, patents protect designs and inventions, especially those used in industries. Patents are covered by the Designs Act (2003). Conversely, trademarks involve logos, symbols, names, or expressions that differentiate goods from one business to those produced by another company. Trademarks are governed by the Trademarks Act (1999).[1 Rocque Reynolds, Natalie P Stoianoff and Alpana Roy, Intellectual Property: Text and Essential Cases (Federation Press 2015). 1-100.] [Frank Isaac Schechter, The Historical Foundations of the Law Relating to Trade-Marks (The Lawbook Exchange, Ltd 1999).]
Globally, intellectual property is governed by international institutions such as the World Intellectual Property Organisation (WIPO). Such organisations have ensured the protection of intellectual property in most countries in the world. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) enforced property rights in the economic sector. The TRIPS Agreement required members of the World Trade Organization (WTO) to protect their citizens' intellectual rights. Moreover, copyrights usually extend for over 50 years, while patents extend for more than two decades. On one end, exceptions were to be used with limitations to limit exploitation of intellectual property rights.[Justin Malbon, Charles Lawson and Mark Davison, The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (Edward Elgar Publishing 2014) accessed 16 February 2021.]
I. Maurie v Ida and Sally
In the case of Maurie v Ida and Sally, Maurie’s intellectual property rights have been infringed. As the inventor of "Dairy Queen," Maurie is protected by intellectual property rights. Maurie has the following intellectual property rights: design and patent. However, this case presents a situation where the plaintiff ought to have sought protection before delivering the product to the public. Nevertheless, it is uncertain whether presenting an invention to a small group is viewed as public launching, thus making the design impossible.
Design
A design is the visual representation of a product or an object intended to be used commercially or in industries. The design comprises the structural drawing, colour patterns, and configuration of the product in either a two-dimensional or three-dimensional pattern. Registration of a design prevents other parties from producing a similar design of the product.
For a design to be registered, it must be novel and distinct from other products during the review period. Besides, the design should not be available anywhere in public at the time of application. Also, the right owner is the only one allowed to apply for design pattern registration. The owner of the design can be an individual, industry, or company.
In Maurie v Ida and Sally's case, Maurie was the inventor of the "Dairy Queen." By taking pictures of Maurie’s design and plan, Ida infringed the intellectual property rights of Maurie. Being the first author of the "Dairy Queen," Maurie is the proprietor of the design, and thus, reproduction of the work is conferred to Maurie. With the registration of the invention, Maurie would have been protected against copying. Also, he would have had a measure of defense against Ida and Sally by having prior art before their registration.
Patent
A patent is a license that gives an inventor exclusive rights to the invented product. In most countries, a patent grants the owner the right to limit others from reproducing, publishing, or using the invention for commercial purposes. The patent rights are granted for at least 25 years of producing the design publicly. On the other hand, a patent has limitations because the information of invention is shared with the public, thus offering a limited duration of protection.
In Maurie v Ida and Sally's case, Maurie was the first inventor of the machine, which offers her the right to the patent. Ida and Sally produced a device that was using a similar "mechanism" and "process" to that of Maurie. Therefore, their inventions fail to meet the requirement that they should be novel and distinct from prior designs. Furthermore, Maurie was not consulted with Ida and Sally regarding the use of her product. Also, there was no permission granted by Maurie to reproduce his invention. Moreso, Ida, and Sally lacked transparency and honesty. Ida took the photographs, and neither Bill nor Lottie was aware of it.
Protection on Intellectual Property Rights
In Maurie v Ida and Sally's case, Maurie can challenge the validity of the patent issued to Ida and Sally. Maurie can prove that the patent was issued without considering prior inventions at the time of patent application. Specifically, he can claim that the "Farmfresh" machine's design was not new but rather a copy of his invention. Also, Maurie can cite commitment of fraud. Taking photographs of the design without permission from the first author is by all rights illegal. Therefore, Sally and Ida were involved in fraud before the application of the patent. Besides, the commercialisation of the machine without the inventor's permission is an infringement of the patent rights. Again, the production of a device that worked similarly to the “Dairy Queen" in all aspects was a violation of intellectual property rights.
As the original owner of the "Dairy Queen," Maurie can take the following actions to remedy against Ida and Sally: injunction, monetary damages, delivery up of the unsold machines, or impoundment of the device. The court may issue the demand to stop Ida and Sally from producing, using, or marketing the machines. Alternatively, the court may allow payment of monetary damages as compensation to Maurie for lost income due to infringement. The court may order the devices which have been developed against the patent rights of Maurie to be delivered to be destroyed by Maurie or the court. Finally, the parties may be allowed to settle their case through negotiation outside court.
In reliance to the case of Commonwealth Scientific and Industrial Research Organisation (CSIRO) v. Buffalo Technology Inc., CSIRO (an Australian research organization) applied for patent registration on Wireless Local Area Network (WLAN) invention which they were granted in the year 1996. In 2005, CSIRO file suit against Bufallo Technology Inc. (a Japanese company). The court established an infringement and violation of intellectual property rights by Bufallo Technology Inc., and a permanent injunction was granted to CSIRO. The patent made it possible for CSIRO to win against Buffalo Technology Inc.[(2007) 492 F. Supp. 2d 600 (E.D. Tex.)]
In the case of Gram Engineering Pty Ltd v Oxyworks Pty Ltd, Gram claimed patent infringement against Oxyworks. Gram Engineering manufactures and sell fence plinth, which they patented (AU 2004291566). In this context, the fence plinth is manufactured from sheets and runs along to the end margins. The court established that Oxworks had copied Gram plinth deliberately and that the sheet did not necessarily mean the material had to be flat as contended by Oxworks. The Full Court maintained the primary judge’s ruling of patent infringement by Oxworks. However, it found out that the primary judge had erred in issuing additional damages to Oxworks since Oxworks had a “reasonable arguable defence” to the case of patent infringement. The ruling by the Full Court suggests that additional damages should be issued where there is intentional infringement. In Maurie v Ida and Sally's case, Ida demonstrates intentional infringement by taking photographs of the machine's plan.[(2019) FCA 689] [(2019) FCA 689]
Annya v Magic Kingdom
Intellectual property is intangible hence not subjected to evaluation by physical means. Additionally, examiners cannot quantify it through physical measurements and weight—consequently, the legal actions to protect intellectual property rights present unique challenges. Statutory laws serve to protect intellectual property. However, this does not mean that common law is unreliable to offer this protection. Statutory regulations are formed by the legislature, while the judiciary passes the common law. Therefore, a significant dependence between statutory statutes and common laws confer protection on most intellectual property rights. In the case of Annya v Magic Kingdom, Annya has the following intellectual property rights: trademark and design.
Australian statutory intellectual property rights
The IP Australia is responsible for enforcing intellectual property rights. These rights may include designs, patents, trademarks, and plant breeders. The Australian statutory intellectual property rights are governed by acts such as Design Act (2003), Patent Act (1990), Trademarks Act (1995), and Plant Breeder's Act (1994). These statutory acts serve to protect inventors and creators and also grant them the opportunity to commercialise on their properties.[Andrew Stewart and others, Intellectual Propert...