Infringement of Intellectual Property Rights Case Study

Brief Description

Intellectual property refers to distinct intellectual and artistic creations of the mind that can be protected by the law. The owners of intellectual property are given some exclusive rights to enjoy the property that is mostly intangible. The most common famous types of intellectual property include trademarks, copyrights, patents, trade secrets, and design rights. The legal issues applied in any of the types of intellectual property depend on the context especially the place where it is being applied. There are remedies that are applied to any individual who violates the laws regarding intellectual property. Anne Smith has produced an original sculpture but after a short period of time, the sculpture is ruined and a potter decides to recreate it in clay without permission form Anne. This paper will seek to analyze the legal issues surrounding the case.

Legal Issues in Anne Smith Case

Anne Smith had come up with a new idea that gave her the right to make, use, sell, and license the final result of the new idea. The sculpture was very outstanding and judges praised it for its intellectual depth and exceptional beauty. This is a patent that regarded protection for twenty years according to the laws in Canada. The recreation of the same sculpture in clay by Carol from Sweden is illegal. Presenting the same sculpture as a gift to a neighbor and producing a hundred more is also illegal.

Intellectual Property Rights Infringed and Arguments in Favor of Carol

Before Carol came up with the idea to produce the sculpture, it was genuinely unavailable. The sculpture possessed features that were previously unavailable in all the sculptures that had been produced before. Production of a sculpture possessing the same features that had originated from Anne by Carol is therefore illegal and a legal step ought to be taken on her (Birgitte 124). In fact, it is evident that Carol did not come up with the idea before but borrowed it when she visited the park. She borrowed the very ideas that made the innovation unique. This is an infringement of the patent. The use of the sculpture by the neighbor without the consent of Anne is also illegal. Production of the order for a hundred more sculptures is infringing the rights of the original owner of the idea especially if the twenty years period has not elapsed. The sculpture also has utility and that’s why the buyer from Harrods placed an order for the London store. The idea by Anne needs protection and necessary remedy should be applied to those that have infringed the rights to the owner of the idea.

Arguments against Carol

Carol, the neighbor, and the buyer from Harrods have a case to answer. All the same, they have an opportunity to prove themselves innocent for the accusations brought against them. If Anne had not applied for the patent, she could not accuse them for any offenses. The government cannot recognize anybody who have idea or have produced a new product using a new idea if the person has not applied for the patent (Zvulony & Co. Lawyers 6). In addition, if Anne had applied for the patent but it had not been granted, she cannot complain about the production of the sculpture by other individuals. The government can only protect a patent whose application is granted. The buyer from Harrods and the neighbor can claim to have no idea regarding the infringement of the patent if Carol is found guilty of producing the sculpture containing the main features of Anne. In addition, the defendants can also claim that Anne was producing the work for competition purposes and not for sale.

Remedies in case Anne Wins the Case

If the case comes in favor of Anne, an injunction will be awarded that will protect the infringer from using the invention for the term when the patent is applicable. Any products that have been produced using the idea should be delivered up to the owner of the idea. An order may require that all the profit made since the patent was granted be given to the owner of the idea. The infringers may also be required to compensate the owner for any damages caused between the date when the grant was published and the day when the grant was awarded.

Analysis using Australian Context

The laws regarding intellectual property have been revised frequently in Australia. The laws were originally adopted from the UK but they have been changed to fit the Australian context. The laws regarding a patent in Australia agree with most of the laws in Canada with the only some differences in the remedies. In Australia, remedies are given to encourage people to be innovative and large sums of money are charged.

Analysis using a UK Context

If this case was to be applied in the UK, the difference would be that a patent awarded in the UK will only be applicable to inventors in the UK. If the defendants were from a different country, the remedies could not be applied on them provided the patent was awarded in the UK. For UK to protect the patent right, the application must be made to the individual’s country, the European Patent Office, or the World Intellectual Property Organization (UK Trade & Investment 7).

The Google Books Projects

Google has been digitizing millions of books for the last four years. They scan the books and placing them in a database where readers can access them online (Temple 5). Although Google’s bold decision to make books available to all was lauded as a noble gesture, nonetheless, it came under a scathing attack from the department of justice on grounds that it was in total contravention of both the copyright and antitrust laws. Many of these books are covered by copyright. Publishers and authors have sued Google on the claims that digitizing books is a violation of their copyrights. There has also been claims that the project could be harmful to libraries that rely on books for profits and other companies wishing to digitize books. Giving Google the digital rights to scan books and make them easily accessible is seen by the U.S. Justice Department to undermine copyright laws. The author and publisher who obtain the copyright right are the only bodies that have the right to produce, use, sell, and generally control the use of a book. Allowing these individuals to digitize the books and make them available to users online would deny the publishers and the authors the control of their intellectual property. Google has however had negotiations with authors and publishers especially in the United States where they have come to some agreements. The authors and publishers of a book that Google digitizes are supposed to have a share in the amount that Google earns using the book.

Benefits of the Google Book Project According to Google

Google argues that the database allows readers who cannot access a library to read books that are out of print (McSweeney 3). These are in-copyright books that can only be accessed in libraries. Through the project, authors also get an opportunity to sell their copyrighted books. Individuals are available to view sample pages and make a decision on whether to buy the book or not. Individuals taking research are able to access materials from some of the best libraries in the world. This would benefit the world at large because their research is aimed at coming up with a solution to an existing problem. The vision impaired will have access to books through the project and scholars will have access to important material that is very helpful in life.

References

Birgitte, Andersen. Intellectual Property Right or Intellectual Monopoly Privilege: Which one Should Patent Analysts Focus On. Oxford: Oxford University Press, 2008. Print.

McSweeney, Lindsay. The Google Book Controversy. 2009. Web.

Temple, James. Google Book Project Far from Settled. 2009. Web.

UK Trade & Investment, Intellectual Property Rights. n.d. 2010, Web.

Zvulony & Co. Lawyers. Intellectual Property Law in Canada: A Primer. 2009. Web.