Archive for the ‘Contracts’ Category
The concept of a patent pool is fairly new, if not totally unknown in the South African IP protection context.
The concept of a patent pool is however not new in the world. The first example of a patent pool date back to 1856 where sewing machine manufacturers, Grover, Baker, Singer, Wheeler and Wilson had patents and were in the process of instituting patent infringement actions against each other. This obviously led to the danger that profits can be diluted because of legal fees.
The parties then entered into cross-licensing agreements to make technology available to each other whilst limiting cross-licensing fees and thereby to lower the costs of products to the consumer.
Another example of a patent pool dates back to 1917 when patent held by the Wright Company and the Curtiss Company hampered the development of new airplanes that were needed for World War I. The solution was that the parties "pooled patents" by entering into cross-licensing agreements which allowed the relevant parties to use each other technologies whilst earning a realistic income from their patents.
In essence the basis of a patent pool is a cross licensing arrangement, to the benefit of the patent contributors and administered by an independent administrator.
However, in most instances patent pools are complex arrangements, which need to be set up by experienced practitioners in order to achieve their aims for the benefit of the contributors, and the end user, whilst avoiding anti-trust/price, fixing enquiries.
For more information on Patent Pools, Cross-Licensing, and Intellectual Partnering, you are welcome to contact Smit & Van Wyk, Inc.
Some of this information has been taken from Wikipedia, and for further reading, the following links make for interesting reading matter:
http://en.wikipedia.org/wiki/Patent_pool
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war#The_patent_pool_solution
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The remark is often made that institutions do not protect their IP because they favour an "open source development" or "open source innovation" model.
The basis of this viewpoint is that knowledgeable individuals contribute "free of charge" to provide products (software etc.) which is available to other contributors. In exchange such individuals has access to the development of other contributors "free of charge". This development model is used to develop cutting edge technology in a rapid changing technological environment.
Opposed to the open source development model there is the "Legally protected" development model, which use legal tools to protect IP for the benefit of the individual or the institution. The advantage of this system is that the individual or institution can recover their investment in research and development over a period of 20 years. This model is used by pharmaceutical companies to develop new health solutions for the benefit of mankind, but with the knowledge that their (very costly) investment will be recovered in future.
These viewpoints are often presented as opposing viewpoints with proponents of each justifying the one against the other. However it is a widely accepted fact that each of these models has its own benefits and their own drawbacks.
Smit & Van Wyk, Inc. with individuals coming from a background of high technology development, but being at the forefront of legal protection of our clients rights, have the view that these two diverse models can be combined into a new "Legally protected open source model" (LPOSM) to maximise the benefits of each model whilst minimising the disadvantages of each model.
The LPOSM model incorporate use of open source technologies as input to new development and making available new developments to the open source community where appropriate, but to incorporate certain technologies (normally not available in the open source market) into products by using patent pools and commercial agreements to access such technology whilst legally protecting certain core competencies.
Smit & Van Wyk, Inc. can be contacted for more information on open source development, the LPOSM model, and legal protection of IP rights.
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South Africa Patent Laws favour the usage of attorneys Even though it is possible to file a patent application directly without the usage of a patent lawyer or attorney, it cannot be recommended. The reason is simple. The South Africa patent laws favour the usage of an attorney. The South African Patent Office is a non-investigating office. This means that you can complete the application, file it and even receive the patent right upon payment of the required fees without the invention complying with all the requirements. It is not a loophole in the system. It simply means that the responsibility lies with the applicant to ensure that the invention is indeed patentable and that the application will be done correctly. The snag comes in when another applicant or company questions the patentability of the invention down the line or argues that the idea was not original at all. Lawsuits may follow and all the money already spent in the commercial development of the patent may be lost forever. You will need the help of a patent lawyer who knows the South Africa patent laws and will conduct the novelty searches and apply in the correct manner right from the word go.
Click here for more information regarding the LESI Conference 2010
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A model release, known in similar contexts as a liability waiver, is a legal release typically signed by the subject of a photograph granting permission to publish the photograph in one form or another. The legal rights of the signatories in reference to the material is thereafter subject to the allowances and restrictions stated in the release, and also possibly in exchange for compensation paid to the photographed. Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph.
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A French and a German company entered into a collaboration agreement for the development of a human antibody for the treatment of a major disease. Two years later, a US corporation acquired the French company. Alleging that the US Corporation shortly thereafter caused certain payments required under the collaboration agreement to be withheld, the German entity filed an action for breach of contract against the US Corporation in a district court in the United States. The US Corporation filed counterclaims of rescission and breach of contract against the German company. After more than one year of court proceedings, the parties accepted the suggestion of the judge to submit their dispute to mediation and filed a joint request for mediation with the Center.
When the parties could not agree on the name of the mediator, the Center submitted for consideration of the parties a list of five possible candidates, meeting criteria set forth by the disputants in their mediation agreement. After some discussion, the parties agreed on one of the nominees proposed by the Center, an American intellectual property lawyer with considerable mediation experience.
The mediator conducted meetings with the parties in the United States. As a direct consequence of the facilitative role played by the mediator in the course of the case, the parties settled their dispute six months after the commencement of the mediation. - WIPO
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Many people mistakenly believe that software is protected by patent laws in South Africa. Software cannot be patented in South Africa, instead the law makes provision for software copyright protection. The following will qualify for software copyright protection:
Source code
On-screen lay-out
Character or animation that is part of a specific program
The above are the broad categories. The South African software copyright protection however, is not adequate to deal with the expansion in the industry. The need for patenting rights regarding certain aspects of software programs is on the rise. The European law has been well developed regarding patenting rights for computer programs and provides clear guidelines as to the technical characteristics required for patentability of a computer program. Since we are not there yet, and have no court history of interpretation regarding patentability of computer programs in South Africa, we still have to settle for the allowable software copyright protection that exists.
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Web page authors often struggle to protect their information. The question arises whether you have to obtain web copyright for every page of your site, for all new articles and information added, and how to protect against infringements. Unfortunately the Internet has brought evil along with the good. It is now easier than ever before to steal information or copy it from another source than before. Although libraries and companies can be regulated regarding copying of information, it is much harder to prevent people from copying information from your website. It will not be economically viable to get web copyright for each and every article you write for your website, but with South African copyright law, you automatically receive the copyright and thus web copyright the moment you produce the ideas in written form whether it be on paper or electronically. As such we recommend that you make use of programs such as Copyscape to find duplication of your content and then to take the required steps to address the plagiarism. The best you can do when infringement did take place is to contact us for assistance in taking the required steps.
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Trademark applications may be unsuccessful when specific conditions for trademark registration are not met. A few reasons for unsuccessful trademark applications are listed below:
When the mark does not fall within the allowable definition range
When it is not able to distinguish goods or services
If the mark has become customary for goods or services
When there is no clear bona fide purpose for the usage of the mark
Should the mark be a copy or imitation of another registered mark for goods
If it indicates patronage
If such a registration will limit the growth of a particular industry
Should the trademark applications indicate deceptive marks
Should it be likely to cause confusion
Any mark similar to one already in use.
Contact us to help you with the procedures regarding trademark applications and prevent lawsuits, objections, and wasting of money.
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Trademark license granting is when the owner of a registered logo or brand – thus trademark provides the right to usage or trading to other parties. The owner granting the usage through a trademark license agreement may wish to do so for the purpose of expanding business, doing marketing or gaining financial benefits from the commercial exploitation of his trademark. A person or company may thus approach the owner for a trademark license agreement which may be subject to annual renewal of the agreement or which there may be certain conditions such as geographical limitations, association, payment of royalties, usage only under specific circumstances or for specific products. Such a trademark license agreement should not be taken lightly, as the terms and conditions must be spelled out in a clear and concise manner without contrasting rights provided. It is recommended that you approach the attorneys of Smit & Van Wyk for assistance in setting up trademark license agreements.
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A company can protect its confidential information through non-disclosure contracts with its employees. The law of protection of confidential information effectively allows a perpetual monopoly in secret information - it does not expire as would a patent. The lack of formal protection, however, means that a third party is not prevented from independently duplicating and using the secret information once it is discovered. The sanctioned protection of such type of information from public disclosure is viewed as an important legal aspect by which a society protects its overall economic vitality. A company typically invests money, time and energy into generating information regarding refinements of processes and operations. If competitors had access to the same knowledge, the first company's ability to survive or maintain its market dominance or market position and market share would be impaired.
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