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Fundamentally,
intellectual property (IP) is any property that is the result of creativity
and does not exist in tangible form. The types of intellectual property
that are available include, among others: patents, trade-marks, copyrights, industrial designs, integrated circuit topographies, trade secrets, and plant breeder's rights.
With
the exception of trade secrets, each of the types of intellectual property
listed above involves the granting of a right, having certain defined
parameters, by a government authority. Although obtaining such a right
forbids others from infringing on your intellectual property, it is up to
you as the owner of the IP right to ensure that it is enforced. The
government does not proactively enforce the infringement of intellectual
property rights, although it does, through the courts, render decisions
regarding IP-related disputes that are brought to its attention through the
proper channels.
Below
you will find a brief description of the most common types of intellectual
property. For further information, please consult the IP-Related Resources page.
Patent
A patent is an exclusive right granted by a government to make, use or sell
an invention. In return for the "monopoly" granted by the
government, a patentee agrees to disclose, to the public, information
relating to the invention. Therefore, patents benefit the public by
providing detailed technical information in all fields of scientific
endeavour in which patents may be granted. Patents also benefit the
patentee by providing a means for safeguarding the time and money invested
in the development of the invention.
A patent is granted for a new and useful
invention (art, process, machine, manufacture or composition of matter), or
any improvement in an existing invention. An invention must generally be
found to meet requirements of: novelty (no one else has invented the
invention before you), utility (the invention does what it purports to do),
and inventive ingenuity (the invention is not obvious to a person with
ordinary skill in the art).
The duration of patent protection is
typically 20 years from the date of filing of a patent application, with
public disclosure typically occurring 18 months after the filing date. A
patent application is generally examined by a patent examiner to ensure
that the patent applicant is, in fact, entitled to the rights which are
being claimed. A patent applicant may submit amendments in response to
official actions from the patent office in order to satisfy patentability
requirements prior to the patent being granted. Patents grant a national or
regional right. As such, obtaining a patent in one jurisdiction does not
provide protection for activities occurring in a jurisdiction in which a
patent has not been granted.
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Trade-mark
A trade-mark is used to distinguish the
goods or services of one person or company from those of another. A
trade-mark may cover a slogan, product name, distinctive package or unique
product shape, and is usually associated with particular wares or services.
The use of a word, symbol or design is protected by trade-mark.
The three basic categories of trade-marks
are: ordinary marks, certification marks (identifying wares or services
that meet a certain standard), and distinguishing guise (distinctive
package or shape). The use a mark for a certain length of time can
establish trade-mark ownership through Common Law without any formal
registration. However, trade-mark registration is highly recommended since
a registered trade-mark is valid on the face of it and the onus is on a
challenger to disprove ownership.
The duration of trade-mark protection is
typically 15 years from the registration of a trade-mark, and is repeatedly
renewable at the end of each 15 year term. Trade-marks grant a national or
regional right. As such, obtaining a trade-mark in one jurisdiction does
not provide protection for activities occurring in a jurisdiction in which
a trade-mark has not been granted, though some exceptions may apply for
famous marks.
It is interesting to note that in Canada
the term "trade-mark" as used in legislation contains a hyphen,
whereas in the United States, the term "trademark" is used
without a hyphen.
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Copyright
Copyright protection prohibits others
from copying your work without your permission. Copyright protection
rewards creative endeavour by granting the sole right to publish or use a
work in a number of ways. Copyright applies to all original literary,
dramatic, musical and artistic works. Copyright also applies to performer's
performances, communication signals and sound recordings.
In contrast to other types of
intellectual property, copyright protection is automatically granted and
recognized internationally without formal application for such a right.
Usually, an indication such as © or the word "Copyright" and the
applicable date is sufficient. However, copyright registration is also
available. Registration provides a certificate as evidence of copyright,
thereby transfering the onus to an opponent to disprove it. There is no
examination of applications for copyright registration.
The term of a copyright typically begins
with the publication or making of a work and generally lasts for the life
of the author and for an additional 50 years following the the death of the
author (until end of the calendar year). Because of many international
treaties, automatic copyright protection is provided in most foreign
countries for a Canadian work, and Canadian copyright protection is
provided for residents of those foreign countries.
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Industrial Design
An industrial design is granted
to protect an original shape, pattern, ornamentation or configuration, or
any combination of these features, applied to a finished manufactured
article. The protection covers artistic or aesthetic qualities or an
article. Any functional features would not be protected by industrial
design, but possibly by patent.
The duration of industrial design
protection is 10 years from the date of registration. Industrial design
applications are examined by government examiners in order to verify their originality
and conformance to statutory requirements. At the end of the first five
years of the term of protection, a maintenance fee is due. If this fee is
not paid, the protection will lapse after the initial five year period.
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Integrated
Circuit Topography
An integrated
circuit topography registration protects the topography of an integrated
circuit product, e.g. a microchip. The registration covers the
three-dimensional configuration of a series of layers of semi-conductors,
metals, insulators and other materials. The protection afforded by
integrated circuit topography registration covers the use, sale and
manufacture of an integrated circuit product having that topography.
The duration of
integrated circuit topography protection is 10 years from registration.
Integrated circuit topography applications are not examined; the
topographies are simply registered. Applications must be filed within two
years of the first commercial exploitation.
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Trade Secret
A trade secret is a type of intellectual
property that is not protected by a granted government right. Instead, as
its name suggests, intellectual property is protected by refusing to
disclose details relating to the innovation, thereby forfeiting any chance
for patent protection. The proprietary nature of the innovation often
requires employees to sign strict non-disclosure agreements regarding trade
secrets.
In many cases, the option of protecting
an idea by trade secret is pursued in instances where the subject matter
may not be suitable for patent protection, yet is integral to a company's
success. Examples of highly protected trade secrets include the Coca-Cola
formula and Colonel Sanders' secret blend of eleven herbs and spices.
Among the advantages of trade secret
protection are the indefinite lifetime for protection, the lack of
territorial limitation, and the absence of fees to be paid. However, the
major drawback to trade secret protection is that protection ceases upon
discovery of the trade secret by another person, often with no recourse to
the party that was attempting to protect the trade secret.
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