answers to intellectual property law review questions

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Answers to Intellectual Property Law Review Questions

by: Joselle Amahit

Review Questions

1.) In what ways does the Intellectual Property Law protect

entrepreneurs?

Filipino entrepreneurs are now capable of investing a lot of time, effort,

and capital over the development and perfection of an invention,

service, or innovation. Any unique intellectual creation by Filipino

entrepreneur must be provided with the right protection to prevent

unlawful piracy and use by local and international competitors. The

Intellectual Property Law provides protection from competitors who

may want to directly copy an idea. The law also provides

entrepreneurs a way to recover costs in developing the idea. This

protection helps businesses establish and maintain a competitive edge

over competitors.

The law also encourages entrepreneurs to keep on taking risks by

developing innovations, knowing that the law provides ample

protection and makes sure that entrepreneurs receive all the financial

rewards from these innovations. Owning the rights to intellectual

property also allows entrepreneurs to license or franchise ideas withoutany risk. This in turn allows them to expand the market for their

products, which in turns increases revenue.

2.) Why is the transfer of technology important to domestic economy?

What is the role of intellectual property laws to technology transfer?

Transfer of technology is important for domestic economic growth.

Transfer of technology allows local economies to get hold of new

technologies that can improve existing technologies, solve existingproblems that are causing local economies to lose money, and most

importantly facilitate the expansion of local trade and possible give

rise to the creation of new trades and companies, which can create

more jobs for the people in the community.



The Intellectual Property law promotes technology transfer by

providing services that provide for a means to settle disputes arising

from technology transfer agreements, provide arbitration in the event

of a technology transfer agreement, set out the rights and

responsibilities of both parties in such an agreement, to name a few.

More importantly, the restrictions imposed by IPR laws will force

existing firms engaging in imitation to shift their resources to adaptive

innovation. Stronger IPR protection in local economies can increase

trade and foreign direct investment to these local economies. FDI can

be an important channel for technology transfer especially when

technology is transferred across borders.

3.) Are ‘bold’ movies protected by intellectual property law? If so, how

would you reconcile the protection extended to these movies to thedeclared state policies?

Despite their description, ‘bold’ movies, or films are cinematographic

works that fall under the category listed in the Intellectual Property

Code (Sec. 127.1, l) and are thus likely to qualify for copyright

protection. Section 172.2 further reiterates this protection when it

states that

“Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, qualityand purpose.”

However, the law also provides that anything that is contrary tomorals are not covered by the protection. This may be found to bedirectly in conflict with the provision stated above which provides thatworks are protected based note sole fact of their creation and not ontheir content.

Courts may try to reconcile this by setting distribution limitations on

bold movies, which are deemed to be contrary to morality. Linking

copyright ability with morality has been the practice in other countries

like the UK and the US (Georgiev, E., 2011).

In the UK, courts may refuse to grant copyright protection for policy

reasons such as morality. In the US, the Court of Appeals for the fifth



Circuit declared obscene films protected by copyright law, which led to

the FBI copyright warning in adult films. Germany provides copyright

protection for adult films, but criminalizes distribution of the same

especially to persons under 18.

4.)Distinguish patents, trademarks, and copyrights.

A copyright, on the other hand, is a form of protection given to the

authors of original works of authorship and covers literary, dramatic,

musical, artistic and other intellectual works which were published or

not. The owner has the exclusive right to reproduce his copyrighted

work, to create derivative works, and to distribute copies of the same,

as well as publicly display the works. Copyrights protect the subject

matter and not the form of the property. This means, for example, thatthe description of a thing can be covered by a copyright, but this does

not stop others from creating their own descriptions of the thing or

using the machine that the description under copyright describes.

A patent is a grant of property right that excludes others from making,

using, selling of such invention. This means that it covers the making,

selling, and even use of the invention itself.

While a patent is a property right and copyright is a form of protection

given to original authors, a trademark is simply a mark or a symbol

used to distinguish a product from other products and to identify a

particular inventor, maker, or manufacturer. A trademark right protects

the owners of such mark from the actions of others who may want to

use a mark that is confusingly similar. Simply put, a trademark is used

to protect words, phrases, and logos used in commerce to identify

products and services.

5.) In the case of Pearl and Dean (G.R No. 148222 August 15, 2003) what

do you think should the proprietor of Pearl and Dean have done to

protect its interest?

On the Issue of Trademark Infringement



Pearl and Dean should have included advertising display units when

they applied for the registration of the trademark ‘Poster ad’ with the

Bureau of Patents. This trademark only covered stationeries such as

letterheads, envelopes, calling cards and newsletters, and did not

include the use of such trademark on the advertising display units.

According to the Court of Appeals ruling,

““Poster Ads” was registered by Pearl and Dean for specific use in its

stationeries, in contrast to defendants-appellants who used the same

words in their advertising display units. Why Pearl and Dean limited

the use of its trademark to stationeries is simply beyond us. But,

having already done so, it must stand by the consequence of the

registration which it had caused.”

This was further reiterated by the Supreme Court in its ruling when it

states,

“This being so, petitioner’s copyright protection extended only to the

technical drawings and not to the light box itself because the latter

was not at all in the category of “prints, pictorial illustrations,

advertising copies, labels, tags and box wraps.”

P & D’s failure to secure a trademark registration for the specific use of

the light boxes means that there could not have been any trademark

infringement.

On the Issue of Patent Infringement

Pearl and Dean failed to protect their property when they failed to

acquire patent rights over their light boxes, which they claim to have

been their invention. The absence of patent prevents the petitioner

from preventing others from manufacturing or commercially using the

contraption.

PART I Review Questions

1.) Five Functions of the Intellectual Property Office



a. Examine applications for grant of letters patent for inventions andregister utility models and industrial designs;

b. Examine applications for the registration of marks, geographicindication, integrated circuits;

c. Register technology transfer arrangements and settle disputes

involving technology transfer payments covered by the provisions of Part II, Chapter IX on Voluntary Licensing and develop and implementstrategies to promote and facilitate technology transfer;

d. Promote the use of patent information as a tool for technologydevelopment;

e. Publish regularly in its own publication the patents, marks, utilitymodels and industrial designs, issued and approved, and thetechnology transfer arrangements registered;

2.)Discuss the organizational structure of the IPO

The Intellectual Property Office is headed by the Director General assisted

by two Deputies Director General. The IPO is divided into six bureaus each

of which is headed by a Director assisted by an Assistant Director. The six

bureaus are the Bureau of Patents, the Bureau of Trademarks, the Bureau

of Legal Affairs, the Documentation, Information and Technology Transfer

Bureau, the Management Information System and EDP Bureau, and the

Administrative, Financial and Personnel Services Bureau.

The Director General, his deputies, and the directors and assistant

Directors of the six bureaus are appointed by the President. Other officers

and employees are appointed by the Office of the Secretary of Trade and

Industry under the Civil Service

3.)Discuss the jurisdiction of the Director of the IPO

The Director General manages and directs all the functions of the IPO

and promulgates the rules and regulations to implement the plans,

policies, and programs.

He also exercises appellate jurisdiction over the decisions renderedby the Director of Legal Affairs, the Director of Patents, the Director of

Trademark, and the Director of Documentation, Information, and

Technology Transfer Bureau. His decisions in the exercise of his

appellate jurisdiction in respect to the decision of the Director of

Patents, and the Director of Trademarks shall be appealable to the

Court of Appeals in accordance with the Rules of Court; and those in



respect of the decisions of the Director of Documentation, Information

and Technology Transfer Bureau shall be appealable to the Secretary

of Trade and Industry.

He also exercises original jurisdiction to resolve disputes relating to the

terms and license involving the author’s right to public performance orother communication of his work. The decisions of the Director General

in these cases shall be appealable to the Secretary of Trade and

Industry.

4.) What are the qualifications of a Deputy Director General of the IPO

The Deputy Director General must be

• be natural born citizen of the Philippines

• at least 35 years of age on the day of the appointment

• holder of a college degree

• of proven competence, integrity, probity, and independence

• member of the Philippine bar who have engaged in the practice

of law for at least 10 years

5.)Where will you file the following:

5.1) Application for registration of industrial designs

Bureau of Patents

5.2) Application for registration of geographic indications

Bureau of Trademarks

5.3) Petition to oppose application for registration of marks

Bureau of Legal Affairs

5.4) Petition for cancellation of utility models


5.5) Petition for compulsory licensing of patents




Source:

Georgiev, Emil A. “Copy Porn.” The REeguligence Weblog. May 29, 2011. July 8,

2011. http://reguligence.biz/tag/pornographic-works/.

http://reguligence.biz/tag/pornographic-works/

http://reguligence.biz/tag/pornographic-works/

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