Miscellaneous IP Rights

Semi-Conductors

The directive on the legal protection of semiconductor products requires member states to adopt legislation to protect them insofar as they are the result of the creator’s intellectual effort and not commonplace in the industry. The protection is granted to the person who created the topography subject to them being a person who is a national or resident in an EU state. Companies and legal persons who first commercially exploited topography may also obtain protection subject to certain conditions.

An application for protection may be refused if it is not made within two years of being commercially exploited for the first time. Evidence may be required identifying and exemplifying the topography.

The protection grants exclusive rights. This includes the rights to authorize or prohibit the reproduction of the topography, and the right to authorize or prohibit exploitation or importation for the purpose of the topography of a semiconductor product manufactured using the topography.

Rights Granted

The right to authorize or prohibit reproduction does not apply to reproduction for the purpose of analyzing, evaluating, or teaching the concepts, processes, systems, or techniques embodied in the topography or the topography itself.

Where registration is required to protect the rights, they take effect on the date of the application or the date it is first commercially exploited anywhere in the world, whichever is first. If registration is not a condition. The rights come into existence when it is first exploited commercially or when it is first fixed or encoded.

The exclusive rights last ten years from the end of the calendar year when first exploited or where registration is required when registration is filed.

Protection of Databases

EU directive provides for the legal protection of databases. This applies to electronic or hard-copy databases. A database is a collection of independent works or data or material arranged in a systematic or methodical way and individually accessible by electronic and other means.

This is separate from the legal protection of software, patents, trademarks, and designs. The purpose of the directive is to provide copyright protection for the intellectual creation involved in the selection of the arrangement of material.

Protection applies when the scheme of the database constitutes, by virtue of the choice or arrangement, the intellectual creation of its author.

Rights Granted

The creator of the database enjoys certain exclusive rights similar to those applying to copyright generally. The legitimate user of the database may perform all acts which are necessary for the use of the database, subject to restrictions.

The creator of a database can prohibit the unauthorized retrieval and reuse of its content. This separate right can be transferred, assigned, or licensed.

A lawful user may retrieve and reuse, without authorization, non-substantial parts of the database. He may not perform acts that unreasonably prejudice the legitimate interests of the maker of the database or a person providing works and services on it.

The right to prevent retrieval of content lasts for 50 years from the date of creation of the database.

Registered Designs

The EU directive on the harmonization of legislation on registered design applies to registered designs administered and registered at the state central industrial property offices at the Benelux office or under an international agreement.

In order to qualify, a design must have a new and individual character. States protect designs by registering them and conferring exclusive rights.

The design is protected for one or more periods of 5 years with a maximum protection of 25 years.

Registration of the design confers on the right holder, the exclusive right to use and prevent unauthorized use.

Member state may protect unregistered designs by copyright, patents, or other separate provisions. These apply side by side to the design protection.

Limits

The design right does not extend to;

• acts are done on a private basis or for non-commercial purposes.
• experimental acts.
• acts of reproduction for illustrative or educational purposes.
• items incorporated in a product which are not visible during normal use.
• characteristics of a product’s appearance, which are dictated by functional requirements.
• characteristics of a product’s appearance, which have to be reproduced in order to allow the product to be mechanically connected to, based in or around, or in contact with another product.
• designs contrary to public order or morality.

Community Design

There is a provision for a Community registered design. In order to qualify, designs must be new and have an individual character. They must be different from existing products. Parts of complex products whose appearance determines the design are not protected.

Parts which are visible during normal use in the product in which they are integrated may qualify for protection.

The rights apply to the designer and his successors.

There are two types of protection. The unregistered community design applies without registration. The registered community design must be registered in the Office for the Harmonization of the Internal Market.

Unregistered community design affords short-term protection. This lasts for 3 years from the date on which it was first available to the public within the EU.

Registration as a community design is for a minimum of 5 years, capable of being extended to 25 years. The registered design is protected both against systematic copying and independent development of a similar design. The unregistered design is protected from systematic copying only.

The rights do not extend to acts done privately for non-commercial purposes, to experimental acts, acts of reproduction such as for teaching purposes.

Application

The OHIM deals with the application at the European Union level. Applications may also be made to the national office.

The application is submitted to the central industrial property office of a member state or Benelux countries which have a single office.

The Office for the Harmonization of the Internal Market conducts an examination and, where applicable, grants the community design to the applicant. There is a community design register. Licenses may be granted.

A registered design may be declared invalid by the office, either on the application or by a court. Invalidity may be declared if;

• it does not meet the requirements for a community design.
• the holder does not have the rights to the design.
• the design constitutes an improper use of a work protected under copyright.

Applications for registration must be in one of the official languages of the EU. It must also specify a second language which must be one of the working languages of the EU.

Biotechnological Inventions

There is legal protection of biotechnological inventions. It clarifies the distinction between what may be patented and what may not be. In particular, the human body at its various stages of formation and development and processes for cloning human beings or modifying the germline genetic identity of human beings may not be patentable.

National laws must conform to the provisions of the directive.

Inventions which involve an inventive step and are susceptible of industrial application are patentable, even though they concern a product consisting of or containing biological materials. Biological materials which are isolated from their natural environment or produced by means of a technical process may also be the subject of a patentable invention.

Unpatentable

The following are not patentable;

• plant and animal varieties.
• essential biological processes for the production of plants or animals, such as crossing or selection. This does not affect the patentability of inventions which concern a microbiological process.
• the human body and
• discovery of one of its elements including the sequence or partial sequence of a gene.
• an element isolated from the human body or produced by means of a technical process, including a sequence or partial sequence of a gene, may be patentable.

The following are unpatentable when their exploitation would be contrary to public policy or morality.

• processes for cloning human beings.
• processes for modifying the germ line genetic identity of human beings.
• use of human embryos for industrial or commercial purposes.
• processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal and also animals resulting from such processes.

The protection granted by a patent also extends to any biological material derived from the original biological material.

Where a plant breeder cannot use a plant variety without infringing a patent, he may apply for a compulsory licence for non-exclusive use of the invention, subject to payment of an appropriate royalty.