Intellectual Property
Si-Jin van de Vorst
32 MCQ (without guess correction) and open case study question
Contents
Introduction ........................................................................................................................................... 2
Patent – 1 ................................................................................................................................................ 4
Patent – 2 ................................................................................................................................................ 7
Patent – 3 .............................................................................................................................................. 12
Guest Lecture- Liesbet Paemen ......................................................................................................... 19
Copyright ............................................................................................................................................. 22
Guest Lecture: Data protection- Lotte Cools .................................................................................... 25
1
,Introduction
Important questions to ask when thinking about intellectual property.
1. What do you need for rights to arise? (validity)
a. Is there a right?
2. Who owns the rights? (titularity)
a. E.g. who owns the patent
3. What can you do with them? (scope of protection)
a. E.g. can you transfer your patent right to the university
b. E.g. can a medicine also be of other use, not disclosed in the filed patent
4. (How to enforce your right in practise?)
Examples
• Pemetrexed is the pharmaceutical name, and Almita is the brand name, however, the
pharmaceutical name can also have an impact on the rights depending on the patent filed
(copyright/trademark).
• However, patents/copyrights can expire depending on the situation, e.g., the death of the one
holding the patent. Not all things can be patented, such as technical text about the use of
paracetamol. Once the patent expires, competitors can make copies, e.g., Novartis and Mylan.
• Patents may be violated, not only by copying the patented product but also by making
something so similar that there is confusion between the patented product and the copy e.g.
Jupiler blue and Maes.
• Intellectual property rights can be combined. One object can be subject to different intellectual
property rights. They have their own conditions and operational characteristics. E.g. Ritalin is
a trademark, but also a patent.
• Fake drugs can take different forms, e.g. trademark violation or mimic the original drug
In practice, patents often cause development stagnation, e.g., smartphones, instead of promoting
innovation. Customs have a huge role in enforcing intellectual property, as many products are
imported.
Definition of intellectual property rights (IPR)
IPR is the exception to freedom of commerce as they are:
• Exclusive rights to exclude
o It will be attributed to someone
• Granted by law
o Restricted by public law
▪ A patent does not guarantee free use of the product (e.g. toxins)
▪ Copyright does not protect you from spreading defamation (e.g. books)
o Patent law= 20 years
o Copyright law = 70 years after death of the author
o Trademark= 10 years but can be renewed
• Granting temporary protection (monopoly)
• As to a creation= immaterial good
o Intangible assets
o Property right to the creation of the mind
o Requirement of form- no protection of mere ideas
• Valid in a certain territory
o National industrial policy
2
, o In competition with other states - protect their innovation
As an example, not everybody can say that they are a medical doctor and work as such without a
corresponding degree, as there are legislations in place that protect this kind of malpractice.
Why IPR
Practical reason for IPR is that the object is intangible, thus physical protection is impossible.
Moreover, once the object has been made public, control is no longer possible (e.g. online).
Policy reasons are:
• Focus on cultural and social progress - stimulate creativity
• Focus on technological progress – stimulate
• Balance between public and private interests
o E.g. patent bargain→ exclusive right in return for disclosure
o Mutual reinforcement→ strengthens the power of the country and position of the
company
Complements of IPRs
Property rights can be used against everyone, whereas contract rights are restricted by the parties
involved in the contract. Trade secrets and unfair commercial practices cannot be used against
everyone, but specifically identified individuals.
Regulatory frameworks
It can work on different levels, e.g. EU policy. Here, the principle of territoriality is important as IPR
is only in a certain territory, e.g. to combat fragmentation. EU level has regulations and directives
which are a general scope and are not individual. Regulations directly bind all EU member states via,
e.g. trademarks. Directives oblige EU member states to implement rules into national law, to create
harmonisation via, e.g. copyrights.
International level has the goal of transcending the principle of territoriality.
1. Formal: application procedure for industrial property rights across the globe
2. Substantive: contents of the law/rights
a. National treatment: no discrimination
b. Minimum standard
3
Si-Jin van de Vorst
32 MCQ (without guess correction) and open case study question
Contents
Introduction ........................................................................................................................................... 2
Patent – 1 ................................................................................................................................................ 4
Patent – 2 ................................................................................................................................................ 7
Patent – 3 .............................................................................................................................................. 12
Guest Lecture- Liesbet Paemen ......................................................................................................... 19
Copyright ............................................................................................................................................. 22
Guest Lecture: Data protection- Lotte Cools .................................................................................... 25
1
,Introduction
Important questions to ask when thinking about intellectual property.
1. What do you need for rights to arise? (validity)
a. Is there a right?
2. Who owns the rights? (titularity)
a. E.g. who owns the patent
3. What can you do with them? (scope of protection)
a. E.g. can you transfer your patent right to the university
b. E.g. can a medicine also be of other use, not disclosed in the filed patent
4. (How to enforce your right in practise?)
Examples
• Pemetrexed is the pharmaceutical name, and Almita is the brand name, however, the
pharmaceutical name can also have an impact on the rights depending on the patent filed
(copyright/trademark).
• However, patents/copyrights can expire depending on the situation, e.g., the death of the one
holding the patent. Not all things can be patented, such as technical text about the use of
paracetamol. Once the patent expires, competitors can make copies, e.g., Novartis and Mylan.
• Patents may be violated, not only by copying the patented product but also by making
something so similar that there is confusion between the patented product and the copy e.g.
Jupiler blue and Maes.
• Intellectual property rights can be combined. One object can be subject to different intellectual
property rights. They have their own conditions and operational characteristics. E.g. Ritalin is
a trademark, but also a patent.
• Fake drugs can take different forms, e.g. trademark violation or mimic the original drug
In practice, patents often cause development stagnation, e.g., smartphones, instead of promoting
innovation. Customs have a huge role in enforcing intellectual property, as many products are
imported.
Definition of intellectual property rights (IPR)
IPR is the exception to freedom of commerce as they are:
• Exclusive rights to exclude
o It will be attributed to someone
• Granted by law
o Restricted by public law
▪ A patent does not guarantee free use of the product (e.g. toxins)
▪ Copyright does not protect you from spreading defamation (e.g. books)
o Patent law= 20 years
o Copyright law = 70 years after death of the author
o Trademark= 10 years but can be renewed
• Granting temporary protection (monopoly)
• As to a creation= immaterial good
o Intangible assets
o Property right to the creation of the mind
o Requirement of form- no protection of mere ideas
• Valid in a certain territory
o National industrial policy
2
, o In competition with other states - protect their innovation
As an example, not everybody can say that they are a medical doctor and work as such without a
corresponding degree, as there are legislations in place that protect this kind of malpractice.
Why IPR
Practical reason for IPR is that the object is intangible, thus physical protection is impossible.
Moreover, once the object has been made public, control is no longer possible (e.g. online).
Policy reasons are:
• Focus on cultural and social progress - stimulate creativity
• Focus on technological progress – stimulate
• Balance between public and private interests
o E.g. patent bargain→ exclusive right in return for disclosure
o Mutual reinforcement→ strengthens the power of the country and position of the
company
Complements of IPRs
Property rights can be used against everyone, whereas contract rights are restricted by the parties
involved in the contract. Trade secrets and unfair commercial practices cannot be used against
everyone, but specifically identified individuals.
Regulatory frameworks
It can work on different levels, e.g. EU policy. Here, the principle of territoriality is important as IPR
is only in a certain territory, e.g. to combat fragmentation. EU level has regulations and directives
which are a general scope and are not individual. Regulations directly bind all EU member states via,
e.g. trademarks. Directives oblige EU member states to implement rules into national law, to create
harmonisation via, e.g. copyrights.
International level has the goal of transcending the principle of territoriality.
1. Formal: application procedure for industrial property rights across the globe
2. Substantive: contents of the law/rights
a. National treatment: no discrimination
b. Minimum standard
3
