Intellectual Property Law

Question: Describe about the Intellectual Property Law?. Answer: Introduction Patent is a right which is granted to a person for his invention of either a new product or a new process. The patentee gets a right to prevent his product or process from being disposed of or used or imported without his prior permission (Sterzi 2013). Any act relating to the use or dispose of or import of any product or process on which patent has granted, without the permission of the patentee would constitute an infringement of the right which has been granted to the patentee. The patentee will then be entitled to get his right enforced in a court of law or before the Comptroller and obtain appropriate remedies (Cotter 2016). Instant Problem In the instant problem the applicant is claiming invention over a product- a machine, which sprays stale beer and attracts slugs and thereafter dusts them with an electrostatic powder which is laced with poison. The scope and protection of the patent extends to the following four claims: 1. An apparatus for administering pesticide to slugs where the slugs are attracted towards the apparatus by a substance having appropriate properties and a quantity of pesticide is discharged towards the slugs on their approach towards the apparatus; 2. An apparatus according to claim 1 where the pesticide is impregnated in an electrostatic powder which gets adhered to the slugs; 3. An apparatus according to any one of the above mentioned claims where the attractive substance is stale beer; 4. An apparatus according to claim 3 where the stale beer is sprayed towards the slugs. Issues Involved 1. Whether the applicant is entitled to get protection against infringement of the patent or not? 2. Whether the Agrico Ltd, has done an infringement of the patent by selling machines which uses stale beer to attract pests and kill them by using a dose of pesticide which is impregnated in the magnetic powder or not? Relevant Law Inventions on which Patent can be Granted Under Section 1 of the Patents Act, 1977 of UK, patent can be granted with respect to an invention (Gov.uk 2007). Certain conditions need to be fulfilled for the grant of a patent. The conditions are as follows: 1. The invention has to be new; 2. The step involved in the invention is new; 3. The invention is capable of being industrially applied (Gov.uk 2007). Infringement of Patent Infringement of patent has been dealt under Section 60. It lays down that Infringement of a patent occurs only when a patent is in force. It provides that if any person, without the consent of the patentee, does any of the below mentioned acts in relation to the invention, then it would amount to infringement of patent. The acts are as follows: 1. If the invention relates to a product, infringement occurs when the product is disposed of or is offered to be disposed of or is used or imported or kept by such person. 2. If the invention relates to a process, infringement occurs when the process is used or is offered to be used, where any reasonable person of a prudent mind is of the opinion that such a use would amount to infringement. 3. If the invention relates to any process, infringement occurs when a product obtained by such a process is disposed of or is offered to be disposed of or is used or kept by such person (Torremans 2013). Rights Conferred to a Person whose Application for Patent has been Published Section 69 specifically gives right to a person whose application for patent has been published (Gov.uk 2007). The section provides him with the same rights as an original patentee gets under Section 60, subject to two conditions which are explained later in this paper. Application of the Relevant Law In the instant case, patent has still not been granted. Therefore Section 69 will apply in this case. Now protection is granted to an applicant of a patent on the fulfilment of two conditions: The applicant is only allowed to bring a suit only when there has been a grant of patent and The second condition is that the act would have infringed the patent as well as the claims laid down in the application if the patent would have been granted at the date when the application was published. In the instant case: Claim 1 would have been clearly infringed had the patent been granted on the date when the application was published. Claim 2 would have not been infringed because Agrico Ltd is not using electrostatic powder; instead it is using magnetic powder. Claim 4 would have also been infringed as the machine produced and sold by Agrico Ltd. Uses stale beer towards the direction of pests, including slugs. Conclusion The machine, which the Darkland research Ltd. has created, is a new invention and it involves an innovative step of killing slugs. Though the idea of attracting slugs is not new but the methods and steps involved in the use of machine represent an improved method of attracting slugs and thereafter killing them with pesticides. The product is also capable of being industrially applied. Thus the product is an invention and the Company has rightly applied for the grant of patent. The Company, Agrico Ltd., on the other hand has used the same steps to kill pests including slugs. It has almost used the same steps as had been invented by the applicant. The only change which this company has introduced is the use of magnetic powder in place of electrostatic powder but the overall idea is the same. Thus, it has been established that if the patent would have been granted on the date when the application was published, the act done by Agrico Ltd. Company would have clearly infringed both the patent and the claims referred to in the application filed by the Company, Darkland Research Ltd. Under the relevant provisions of the UK Patent Act, 1977 the applicant is entitled to bring a suit against the company Agrico Ltd. But this suit can only be brought once the patent has been granted. Thus the applicant is hereby advised to wait for the time until the patent is granted. References: Aplin, T.F., Aplin, T. and Davis, J., 2013.Intellectual property law: text, cases, and materials. Oxford University Press. Bently, L. and Sherman, B., 2014.Intellectual property law. Oxford University Press, USA. Cornish, W., Llewelyn, G.I.D. and Aplin, T., 2013. Intellectual property: patents, copyright, trade marks allied rights. Cotter, T.F., 2016. 11. a comparative law and economics analysis of damages for patent infringement.Comparative Law and Economics, p.262. Gov.uk. (2007). The Patents Act 1977 - Publications - GOV.UK. [online] Available at: https://www.gov.uk/government/publications/the-patents-act-1977 [Accessed 27 May 2016]. Helmers, C., Love, B. and McDonagh, L., 2013. 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