More About Intellectual Property

How will my idea/material benefit from IP?

IP rights are private property rights so it is usually up to you, the owner to decide how to exploit or benefit from your IP. IP rights generally give the owner exclusive rights to use the material protected in certain ways – exactly how depends on the type of IP. If someone else uses the IP in these ways without your permission, this usually amounts to infringement.

If you do not want to use the material protected by IP yourself, or you want others to use it too, you may license its use. In the copyright and related rights area many right owners prefer to license collectively through a collecting society. This is easier than licensing all uses individually.

Whatever the IP right, the owner can usually decide whether or not to license its use to someone else. However, there are a few areas where this rule does not apply. For example, there is a copyright exception allowing limited use without infringing copyright, and compulsory licences for use of patents may be possible.

Another way of benefiting from your IP is to sell it to someone else. IP is a form of property, and it can be sold just like physical property. But remember, once you have sold or otherwise transferred ownership of your IP, you will not be able to use it without the permission of the new owner unless you have agreed a licence to enable you to continue using it.

When considering how you might benefit from your IP, you should also consider such issues as confidentiality, enforcement of rights and insurance.

How do I enforce my rights?

IP rights are essentially private rights. If someone infringes those rights, i.e. uses material without permission where there is no rule of law that might make such use legal, it is generally for IP right owners to use any remedies available under the civil law. For example, seeking injunctions and damages. However, in many cases it may be better to try and negotiate a solution to illegal use with the infringer before taking legal action.

The best approach must be carefully considered in consultation with legal or other professional advisers. Law societies can give you a list of suitable solicitors and patent or trade mark agents can also give advice.

In order to reduce the chances of people using your IP without your permission, you can make sure you bring the existence of IP to their notice in any dealings with them. If you put material protected by IP into the public domain, e.g. by publishing or selling goods you can mark it appropriately. Taking out an insurance policy to cover the cost of possible enforcement action could also be worthwhile.

If some IP rights are intentionally infringed on a commercial scale, there may also be the possibility of prosecuting that person for a criminal offence. Criminal offences exist in copyright, trade marks, performers rights and conditional access law. The circumstances need to be studied carefully to determine if the behaviour amounts to a criminal offence or a matter that can be resolved using the civil law.

The words counterfeiting, piracy and bootlegging are often used to describe the criminal behaviour. Where criminal offences may have been committed, an IP owner may pursue the matter themselves as a private prosecution, or report the matter to a public sector enforcer such as the police or trading standards office. Many IP owners concerned about criminal offences belong to an umbrella group, the Alliance Against Counterfeiting and Piracy, which may be able to offer advice.

Where goods infringing an IP right are being imported into the UK from a third country (i.e. a country outside the European Economic Area), it may be possible to ask HM Customs and Excise to seize the illegal goods.

Do I always need permission to use IP?

No, there are some uses that are not restricted by IP. For example, you can search through all the published records of the registered IP rights as a source of technical information. The UK Patent Office may be able to search these databases for you through their Patent or Trade Mark Search and Advisory Service.

There are also other minor uses that do involve one of the activities restricted by the IP right but which fall within the scope of exceptions to the right. There are a number of exceptions in the copyright area. For example, making a single photocopy of a copyright work for the purposes of non-commercial research or private study.

In some very limited cases, particularly in the area of patents, it may be possible to obtain a compulsory licence. Material protected by design right is subject to a licence of right after five years. A refusal of a licence may occasionally be contrary to competition law and if so you could take it up with the Office of Fair Trading (OFT).

Also, in cases where use of material protected by copyright or related rights is collectively licensed, you may be able to ask The Copyright Tribunal to overturn a refusal of a licence. Therefore, in these cases, you may eventually be able to use IP even where permission has been refused, but you will still have to pay for use.

How do I get permission to use someone’s material?

Normally you would need to ask the owner of IP rights for permission to use IP, but it is important to remember that the IP owner may refuse to give you permission.

In some cases of minor use, you might be able to use the IP without permission. For example when the use you have in mind falls within the scope of one of the limited exceptions to copyright.

In other very limited circumstances you may eventually be able to use it even if the IP owner refuses by seeking a licence under the compulsory licence provisions in patent law. Or the matter may be referred to the Office of Fair Trading (OFT) to investigate because it breaches competition law. But in the vast majority of cases, you will need to ask the IP owner for permission.

For registered IP rights, the databases kept by The UK Patent Office may help you identify who to ask for permission. For unregistered rights, you may be able to tell from the material who is the IP owner.

Some uses are subject to collective licensing and the licences may be obtained from a collecting society. These organisations may be able to help you identify the right owner even if they cannot give a licence. Other ways of finding the IP owner are suggested in the FAQs on copyright.

Why is Intellectual Property important to medicine?

All countries have an important interest in providing adequate intellectual property protection as a way of encouraging more investment, research and innovation from which they should benefit. This is particularly so in medicine, where new drugs are very expensive and time consuming to research, and where the results of the research are uncertain.

Can I patent computer software?

It is possible to patent programs for computers which, when run on a computer produce a “technical effect”. However, if a program does not produce a technical effect when run on a computer it is unlikely to be patentable. A technical effect is generally an improvement in technology, and needs to be in an area of technology which is patentable.

For instance, an improved program for translating between Japanese and English is not patentable because linguistics is a mental process, not a technical field. On the other hand a program which speeds up image enhancement may be patentable because it produces a technical improvement in a technical area. Other restrictions also apply – the UK Patent Office web site has a practice notice on patenting computer software.

The European Patent Office (EPO) takes a similar approach to the UK Patent Office on patenting software. Their website has a press release about their approach to software and business method patents.

Some other countries, such as the USA, which may be a large potential market for software, have a more liberal approach to software patenting, and often grant patents for software which would be excluded in the UK or EPO.

The UK Patent Office has recently completed a consultation exercise to determine whether or not the law regarding the patentability of computer programs should be changed.