INDUSTRIAL PROPERTY LAW
Keywords: Intellectual property, industrial property rights, competition, ownership, property rights.
Summary: Intellectual property is a special kind of owning intellectual assets. It is referring to the role of monopoly in trade, the role of competition and the basic concepts of property.
The article includes issues as follow:
- Concept of intellectual property
- Concept of industrial property rights
- Relationship between IP Law and competition
- Ownership and Intellectual Property
- Concept of intellectual property and industrial property rights
Intellectual property is a special kind of owning intellectual assets. This property has a unique characteristic that it is very easy to transferred, copied in some situations such as copyrights; and in some situation that is very hard to copy requiring explicit disclosure of information such as patent…… The monopoly protection in the business brings competitive advantage in the market from which to generate profits in business. As a result, the role of monopoly in trade is very important. Therefore, to come to the concept of the Intellectual Property Law, we must explore the role of monopoly in trade, the role of competition and the basic concepts of property and owner’s rights to understand better why the State protects the subject matter of intellectual property by the Copyright Law or patent and other forms of proprietary protection.
The development of many industries mainly rely on competitive advantage that monopoly holdings in business brings a position to exploit the market for business to make a profit. Over the years, economic growth in our country has been based on cheap labor and investment capital, with a contribution to the industry’s growing GDP value. Vietnam’s labor quality is low, skilled labor is an important factor for sustainable development that does not meet the requirements of modern industries. It seems that many new patented industries employ only low-cost and low-quality labor to serve the endeavour and assembly industries. Accordingly, industries contributing the highest proportion include: food and beverages, non-metallic mineral products, metal products, rubber and plastic products, leather and related products, vehicles, costumes, chemical products, textiles, computers and electronic products .
In the competition of the industry, technology accounts for an important place in the modern economy. Technology plays a monopoly role in the market, so that similar products can compete with each other. The role of the IP Law provides that competitive advantage when the IP Law provides a protection for new products, instead, these new products will expire after a period of time of benefiting the community. IP Law plays an intermediary role between public interests and private interests in the competitive landscape of intellectual products.
IP exist in many different forms. The songs performed by Michael Jackson, the perfume label Channel, Louise Vuitton products, formulas for making medicines, designing bottles of Coca Cola, Lavie spring water, all protected by the Law of Intellectual Property; and expressed in the form of information.
Unlike other types of assets, IP properties are expressed in the form of intangible properties, which means that when you own a Chanel, not that you can own all of the intellectual property rights of that product: The right to use trademarks, designs, copy recipes manufactured to sales for others. But you only have ownership in the sense that, you have the right to use that perfume, have the right to give the bottle to others, it is the basic ownership under the civil code, include the right to possession, use and disposition . When it comes to IP, owners of the Chanel brand have full use rights,produce products, have the right to transfer, select distributors exclusively for their products. This makes intellectual property different from other types of property.
Besides the function of the IP Law is to prevent others from exploiting and using IP rights. Patents are also used to ensure the quality of a manufacturer complies with a certain standard. For example, in the pharmaceutical field, pharmaceuticals must undergo a phase of drug quality and clinical trials called AMM (autorisation de mise sur le marché) before being granted a patent for that drug.
- Relationship between IP Law and competition
On the one hand, IP rights create a healthy competitive environment among business entities when inventors are free to express their creativity without being violated by others. With the goal of encouraging creativity, if other people can simulate creativity at will, there will be a “free ride” phenomenon that will diminish creative intentions of creators. For the purpose of fostering competition, from the consumer’s point of view is to bring about self-interest, which is to lower costs and distribute products effectively through competition.
Secondly, viewing intellectual property rights as ownership or exclusive rights. In the continental European law system’s point of view, Creativity must be considered to belong to the creator, meaning creativity works are the so it must be given exclusive rights for intellectual property like the estate and real estate. From the point of view of the American system of law, creativity must be regarded as a kind of exclusive right, unlike full ownership. Therefore, creative products must be controlled according to market principles or Antitrust law. Accordingly, under the Anglo-American Legislation, in the spirit of contract law and antitrust law, intellectual creativity is open and tends to recognize the protection of intellectual creativity only when it contributes a certain amount for the society. In the US Patent Law, the inventor must disclose the most effective way of performing the invention on the patent description sheet when applying for patent protection. In accordance with the Copyright Act of the United States of America, to protect creativity by copyrights, in addition to the requirement of creativity, the creator must be fixated in a certain form so that the average person can access it easily.
According to the theory of natural rights (Germany, France, Bern Convention). Locke shows ownership through the fruits of labor. This theory extends the term of copyright protection to eternity. However, this has a negative effect on public uses because it can not be used free of charge because the work is a work of art and the expression personality of the individual in this approach.
On the other hand, intellectual property rights also create disadvantages in limiting the continuity of creativity when it leads to monopoly those results in higher costs of products. In addition, companies often use the Law on Intellectual Property as a tool to restrict competition. For example, pharmaceutical companies file claims for inventions of expired old drugs to extend the expiry date of the patent. Another example, Novartis pharmaceutical company has requested the extension of Gliveec’s drug coverage by adding non- therapeutic ingredients to claim protection as a new pharmaceutical product .The Supreme Court of India denied Novartis’s patent application for Gliveec, saying that the new drug products are not new but merely additional change to the catalyst for the purpose of requesting a new patent.
- Ownership and Intellectual Property
In the term intellectual property, the positive adjective expresses ownership of property, and intelligence relates to the creative activity of human thought. Intellectual property gives us the right to own the intellectual property of the owner itself and to prevent others from using it without the acceptance of the owner.
Intellectual property is often referred to as the product of human intellectual activity. The term “ownership” refers to intellectual property that implies the exercise of a right and legal protection when the owner infringes on his or her legitimate rights and interests. For example, you own a book in legal terms, what makes you take ownership of it so others can not have the right to use your book without your permission. In the IP feild, IP rights demonstrate the control over your IP and prevent other parties from using it without the permission of the IP owner.
To understand the notion of intellectual property, we have to grasp the concepts of property in the Civil Code to form the concept of various types of assetsin which we can hold and exercise our rights. Intellectual property is a form of exclusive rights for the creation of intelligence.
To clarify the concept of intellectual property rights, we must take into consideration each specific concept of ownership so that it comes to the concept of intellectual property rights.
IP Law is a synthesis of legislation aimed at protecting the creation of intellectual works by giving the IP owner a monopoly role over a specified period of time, this right contributes to preventing others from exploiting and using the owner’s proprietary rights .
Asset Concept: As a general understanding, property bearing property belongs to or associated with the owner. Under the approach of the Civil Code, “Assets are things, money, valuable papers and property rights”.. According to this provision, property rights are recognized as assets under the Civil Code.
According to the approach of economics, Assets are divided into two categories: tangible and intangible assets. The property of intellectual property is expressed in the form of “invisible” because they are not priced equal to the physical presence of the subject itself, but are valued based on the value of the subject’s content. For example, a branding of a product brings a symbolic value to the prestige and quality of the product so consumers can distinguish the quality of the product. For example, if you own a book, this book will not stop being your book in the next few hours if you keep it. But Intelluatual Property Rights may be terminated when the term of protection ends within a certain period of time, the contents of the book will become public property when the term of protection ends. For inventions, in the case of an emergency, the state may be obliged to transfer the patent, a situation limiting the rights of the IP owner.
Property rights: The Civil Code defines property rights in civil transactions, and converts them into values (those that are worth money) can transfer in civil transactions. Article 115 of the Civil Code 2015 stipulates, “Property rights are the right to monetary value, including property rights to intellectual property rights, land use rights and other property rights”. Thus, intellectual property rights are the right to be transferred as other types of property. This transfer is made in the form of a property transfer contract,the implementation of this transfer is made at the request of the parties, the most typical is the licensing. Forms of special transfer such as the transfer of intellectual property under the license agreement, or exceptions (compulsory licensing of invention).
Clause 1, Article 4 of the Law on Intellectual Property 2005: “Intellectual property rights are the right of organizations and individuals to intellectual property, including copyright and related rights to copyright, industrial property rights and rights to plant varieties.”
IP rights are the exclusive right of a definite term for intangible products created by artistic creativity (literary works, works of art), technical inventions (inventions, plant varieties, electronic technologies) or distinct notations (trademarks, trade names, geographical indications).
Intellectual property rights are established for the IP property that the person holds, prevent third parties from exploiting and using the intellectual property without the consent of the right holder. Intellectual property rights are a form of rights established on the basis of the exclusive right to use your IP. Recognized by the authority (patent, trademark registration, etc.). This right is built between the parties: the competent authority (the State), the inventor and a third party (the user of the IP property). In these social systems, the two main relationships are the administrative relationship (the state and the IP owner) and the civil relationship (between the IP owner and the IP user).
The main concern of the Intellectual Property Rights Law, on the one hand, it promotes creative consciousness by protecting human intellectual creativity products through the rule of law, on the other hand, the negative effects of excessive protection prevent the society from fully enjoying the fruits of human intellectual creativity.This means that while protecting the individual rights of creators to a certain extent, both contribute to cultural development by limiting the rights of creators to protect the common good of the community.
Thus: Intellectual Property Rights is a legal regime that includes the legal system promulgated by the competent state authority to regulate the social relations that arise in the process of creation, use and dispose of assets created by intellectual labor. A different approach to IPR is the collection of rights to intangible assets that are the result of creative labor or business credibility of the subject, protected by law. IPR governs normative groups on IP protection conditions, IPRs, IPRs and IPR protection.
Workshop on Effective commercialization of intellectual property, report Nguyen Huu Can, Institute of Intellectual Property Science, 11/2016..
See more on the Ministry of Planning and Investment: http://www.mpi.gov.vn/Pages/anpham.aspx.
Article 158 of the IP Law provides for ownership rights “Ownership rights include the right to possession, the right to use and the right to dispose of the owner’s property in accordance with the law.”
IP Law curriculum at University College. Law City. Ho Chi Minh, Hong Duc Publishing House – Vietnam Lawyers Association, page 11, 2014.
Patents and trademarks are the only two means of protecting IP rights for pharmaceuticals
IP Law curriculum at University College. Law City. Ho Chi Minh, Hong Duc Publishing House – Vietnam Lawyers Association, page 22, 2014.
Judgment of the Supreme Court of India between Novartis AG vs. Union of India & others, 1 April 2013. Accessed September 28, 2016 at website: http://supremecourtofindia.nic.in/outtoday/patent.pdf.
IP Law curriculum at University College. Law City. Ho Chi Minh, Hong Duc Publishing House – Vietnam Lawyers Association, page 25, 2014.
Clause 1 of Article 105 of the Civil Code.
Lee Gyu Hong, South Korean Intellectual Property Rights Law Lecture, Judicial reserch & training institute, 2015, p. 155.
Nguyen Nhu Quynh, IP Law curriculum – Chapter 1: IP overview – Editors: Le Dinh Nghi, Vu Thi Hai Yen, Vietnam Education Publisher, p.
IP Law curriculum at University College. Law City. Ho Chi Minh, Hong Duc Publishing House – Vietnam Lawyers Association, page 9, 2014.