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Hank's Note:

This Wiki is based on the Creative Commons/Open Source IP in the 21st Century model. See the lead  video above  for an introduction to this concept:

 


 

Introduction

Intangibles like ideas, knowledge and information — is, in the globalised world, the most valuable of all assets. China may be booming on the basis of manufacturing, but, overwhelmingly, it makes things invented and designed in the West or Japan. Intellectual property is the big difference between the developing and developed worlds.

But intellectual property rights and the internet are uneasy bedfellows. Google’s stated mission is “to organize the world’s information and make it universally accessible and useful”. The words “universally accessible” carry the implicit threat that nobody can actually own or earn revenue from any information since it will all be just out there.

So what is this thing called IP, especially in the evolving Digital World we all live, work, play, and compete in? This section of the Wiki is broken up into two main sections: The first addresses IP per se; the second addresses IP as pertains to Purdue University. But first, let's see/hear what Dr. Schmidt, CEO of Google has to say about IP:

 



Intellectual property (First Section)

From Wikipedia, the free encyclopedia 1/30/07, modified thereafter:



In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property. However, the use of the term and the concepts it is said to embody are the subject of some controversy (see below).

Intellectual property laws vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP rights must be pursued or obtained separately in each territory of interest. However, these laws are becoming increasingly harmonised through the effects of international treaties such as the 1994 World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), while other treaties may facilitate registration in more than one jurisdiction at a time. Certain forms of IP rights do not require registration in order to be enforced.

Overview


Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves (see idea-expression divide). The term "intellectual property" denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself.

Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.

  • Copyright may subsist in
    creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time.


  • A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application). See the following video for another look at patents in Europe:

                                         http://www.youtube.com/watch?v=8cr9payw7uM

 


  • An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).

  • A trade secret (which is sometimes either equated with, or a subset of,"confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.


Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes. Let's see/hear what the heavyweights @ Cardozo Law School have to say about patents, copyrights, and trademarks:



Controversy


The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit and disclosure of innovation into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. From the perspective of economics, intellectual property is a temporary monopoly on the use or exploitation of that good, supported by legal enforcement mechanisms.

However, various schools of thought are critical of the concept and treatment of "intellectual property"; indeed, some argue that use of the term "property" in this context is itself misleading. Some characterise IP laws as intellectual protectionism. There is ongoing debate as to whether IP laws truly operate to confer the stated public benefits, and whether the protection they are said to provide is appropriate in the context of innovation derived from such things as traditional knowledge and folklore, and patents for software and business methods. Manifestations of this controversy can be seen in the way different jurisdictions decide whether to grant intellectual property protection in relation to subject matter of this kind, and the North-South divide on issues of the role and scope of intellectual property laws. See the following video for differences between the written word, and the recorded/video "word."



Furthermore, due to the non-rivalrous nature of intellectual property, defining the unauthorized use of intellectual property as a crime of theft presents its own unique problems. At common law, theft required deprivation of the rightful owner of his rights to possess, use, or destroy the property. Example: When Joe steals Jane's bicycle, Jane cannot use or have access to it. But since intellectual property, i.e., ideas, and various transcriptions into written words, audible sounds, or electronic media, are so easily reproduced, that no such deprivation to the owner occurs. Example: When Joe steals a copy of the music Jane recorded, Jane is not denied access to enjoy her copy. In this sense, many forms of intellectual property meet the non-rival test for public goods: the use of the good by one individual does not reduce the consumption of that good by others.

The global harmonisation of intellectual property legislation under the WTO has also been criticized, for example by the alter-globalization movement.

The exclusive rights granted by intellectual property laws are generally negative in nature, and therefore only grant the holder of IP the ability to exclude third parties from infringing on their monopoly. For example, the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, and can exclude others from using that mark in relation to those products or services (sometimes marks which are recognised as "famous" or "well known" are deemed to have developed sufficient goodwill and reputation to be protected across unrelated classes of products and services).

The exclusive rights conferred by intellectual property laws can generally be transferred (with or without consideration), licensed (or rented), or mortgaged to third parties. Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred (with or without consideration) or licensed to third parties. In some jurisdictions it may also be possible to use intellectual property as security for a loan.

Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (eg. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the material form of expression of an idea, but could not stop them from expressing the same idea in a different form, nor from using the same form of expression if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.

There are also more specialized varieties of "sui generis" exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Union law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).

Exclusive rights differ by subject matter, the actions they regulate with respect to the subject matter, the duration of particular exclusions, and the limitations on these rights. Policies are conventionally categorized according to subject matter, including inventions, artistic expression, secrets, and industrial designs.

Generally, the activity regulated by exclusive rights is unauthorized reproduction or commercial exploitation. However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (ie. a negative right.), but not necessarily a right to do it themselves (ie. a positive right). For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.

Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right. The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the European Union, for example, competition law has a strong influence on how licences are granted by large companies.

Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.

Most exclusive rights are awarded by a government for a limited period of time. Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an efficient outcome. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system [1]. "Intellectual property" law creates transaction costs that could in some circumstances outweigh these gains (see Coase's Penguin). Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss into the economy, and incentivizes rent seeking behavior.

Other criticisms include: a copyright holder may refuse permission to publish or copy a work at all, or without edits favorable to the holder's views, thus effecting a form of private censorship; intellectual property rights held by different people often overlap on the same work, which can create a rights thicket with extremely high transaction costs; an intellectual property right for which the ownership cannot be traced may prevent the use of a covered work (an orphan work) at all, due to fear of future lawsuits.

History


The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears." (Woodury & Minot, CCD Mass. 7 F. Cas. 197, 1845).

In Europe, French author A. Nion mentioned "propriété intellectuelle" in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh-Dole Act in 1980. 1

The concept's origins can potentially be traced back further. Jewish law prohibits plagiarism, calling it "g'neivat d'at" (lit. stealing the mind). The crime, explains Rabbi Joseph Telushkin, is a sort of "double thievery: You steal the credit due to the person who first enunciated the idea, and then ... you deceive your listeners into thinking that you are smarter or more knowledgeable and insightful than you really are."[2]

However, the legal system of most of the Western world does not have provisions for intellectual property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes, except in certain footnotes citing the titles of certain Bills. The term used in the statutes and in the Constitution is "exclusive rights".

: See also: History of patent law; History of copyright law

Critique


The shift in terminology towards "intellectual property" has coincided with a more general shift away from thinking about things like copyright and patent law as specific legal instruments designed to promote the common good and towards a conception of ideas as inviolable property granted by natural law. This shift has led to the use of terms like piracy and theft to refer to violations of copyright laws and has underlain arguments in favor of the expansion of such laws.

Many, especially those in the free culture movement, are critical of the term and the implication behind it, preferring to characterize it as a form of intellectual protectionism or intellectual monopoly. The people using such terms often argue that the laws are so stringent that they hurt the public interest more than they help. There is particular criticism of copyright extension and patents on software and business methods. Arguments about which laws developing countries should follow are also controversial.

Others, including Richard Stallman, criticize the concept altogether. Stallman suggests that "the term systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He insists that the term "operates as a catch-all to lump together disparate laws which originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." 2 Such critics prefer to refer to the various laws individually and discuss them as such and argue that there is little that is useful to say about the general collection.

The World Intellectual Property Organization itself has been criticized, including in a 2004 The Geneva Declaration on the Future of the World Intellectual Property Organization which argued that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself".

Overview


The purposes of laws dealing with exclusive rights over intangible subject matter or the product of intellectual or creative endeavor have varied, but they all share in common the appearance of granting the "owner" of the exclusive rights a monopoly on the copying or distribution of a protected form of "property".

In common law jurisdictions, this was historically done to grant a boon to a king's favorite in the form of letters patent (with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). Jurisdictions with written constitutions generally vest the executive government with power to grant such monopolies or otherwise provide for the protection of intangible property. For example, the United States Constitution accords Congress the power to promote the progress of science and the useful arts by granting exclusive rights to authors and inventors for limited times.

The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive intellectual property rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analyses associated with the term tend to overlook or even to attempt to defeat the fact, noted by Thomas Jefferson when he took part in wording the exclusive rights clause under the USA Constitution, that published information is intrinsically free and that in fact this is the whole point of such exclusive rights — to publish, to provide information to the public.

By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup her investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his or her invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.

In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rights holder, even to the detriment of society at large; and this development has attracted some opponents. The formulation in the US Constitution (noted above) is specifically about public benefit.

In some fields, patent law has had an unintended consequence: treating abstract rules and mental products like concrete ones has stifled innovation in those fields, rather than aiding it.

Intellectual property rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified or statutory provisions for fair use for copyright works). Some analogize these considerations to public easements, since they grant the public certain rights which are considered essential. Different countries may have subtle or dramatic differences in the scope or protection and permitted uses of different types of intellectual property. A fair use in one jurisdiction can easily be an infringing use elsewhere.

Authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Some use the term "intellectual monopoly" instead, because such so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Others object to the negative connotation of the term "monopoly" and cite the wide availability of substitute goods. Still others prefer not to use a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.

Arguments against the term


The term intellectual property has been criticized on the grounds that the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods - chattels or land - real property. The inclusion of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, by helping them draw on concepts associated with those older forms of property in support of their argument for removing limitations on rights when those limitations would be generally seen as inappropriate if applied to physical goods. For example, most nations grant copyrights for only limited terms; all limit the terms of patents. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. By contrast, physical property laws rarely restrict the sale or modification of physical copies of a work (something that many copyright laws do restrict).

A common argument against the term intellectual property is that information is fundamentally different from physical property in that a "stolen" idea or copy does not affect the original possession (see the tragedy of the commons). Another, more specific objection to the term, held by Richard Stallman, is that the term is confusing [3]. Stallman argues that the term implies a non-existent similarity between copyrights, patents, trademarks, and other forms of exclusive rights, which makes clear thinking and discussion about various forms difficult. [4] For example, those that pertain to intellectual content (copyrights and patents) have limited terms, hence differ from conventional property, whereas trademarks, which have unlimited terms, are merely signs and lack intellectual content. Furthermore, most legal systems, including that of the United States, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.

Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.

Stephan Kinsella, in his Journal of Libertarian Studies article "Against Intellectual Property" ([5]), details his objection to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.

Others point out that the law itself treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement is not punishable by laws against theft or trespass, but rather by an entirely different set of laws with different penalties. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is in the main measure federal.

Some proponents of the term argue that in other areas the term "property" is applied to to legal rights and remedies of analogous kinds. For example, in some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen - if someone moves into a flat and prevents the original residents from living there they are not regarded as 'thieves of the lease' but as 'squatters' and the law provides different remedies. Identity theft is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some. These examples, however, address the use of the term "property" in a technical legal context, not the meaning of the term as understood in public discourse.

Alternative terms


In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980's, as use of the term intellectual property has increased.

An alternate terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman - see below. The backronyms intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.

Another issue is that if intellectual property exists there must be a parallel concept of intellectual capital - capital (economics) being the property that permits more property to be created. This, and the related term instructional capital that applies to the proper subset of patents and non-fiction copyright, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset. See more in the "Economic view" section below.

The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright concerns original creative or artistic works, patent concerns new and useful inventions, and trademarks concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations' World Intellectual Property Organisation on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce" [6]. These critics see this assertion as propaganda for a "property view", and suggest alternative terms such as individual capital, instructional capital and social capital over the term "intellectual capital", which has an ambiguous status, even among believers in neoclassical economics. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial" [7]).

Expansion in nature and scope of IP laws


In recent times there has been a general expansion in intellectual property laws. This can be seen in the extension of laws to new types of subject matter such as databases, in the regulation of new categories of activity in respect of subject matter already protected, in the increase of terms of protection, in the removal of restrictions and limitations on exclusive rights, and in an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hire has also had the effect of treating a corporation or business owner as the legal author of works created by employees.

The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire.

The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft's slogan "Where do you want to go today?" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademarks in the marketplace, harmonisation may not amount to a fundamental expansion of the trademark concept.

In the context of patents, the grant of patents in some jurisdictions over certain life forms, software algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter.

Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain for the common good. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies.

The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use provisions of copyright law and even make the first-sale doctrine (known in European Union law as "exhaustion of rights") moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act, which uses criminal law to prevent any circumvention of software used to enforce digital "rights management" systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). These provisions raise serious free speech issues even beyond those raised by intellectual property law in general.

At the same time, the growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, represents a challenge for exclusive rights policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against what it terms "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.

Economic view


Exclusive rights such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly for this reason.

However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. In such cases, economists may find that another market form, such as oligopoly or monopolistic competition better describes the workings of the markets for expressive works and inventions. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate.

The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalrous. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons can result.

The subjects of intellectual property do not share this feature of rivalness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and nonexcludability combine to make them public goods and susceptible to the free rider problem. A rationale for "intellectual property" therefore rests on incentive effects to overcome the free rider problem. This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship. However, as Wikipedia and Free software demonstrate, works of authorship can be written without the incentive of such exclusive rights. Moreover, many important works were created before copyright was invented. One might argue that much more invention occurred after patents came into existence; however, one could also argue that patents were brought into law as the power and influence of industrial interests grew.

The status of intellectual property is disputed by various commentators in India, the People's Republic of China and other developing nations. The United States and the United Kingdom are the only two nations who consistently receive net balance of payment benefits from intellectual property, and are amongst the chief supporters of intellectual property systems.

A more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A recent study found that the introduction of exclusive rights to databases in the EU did not do any good to the economy.

The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this such as the Business Software Alliance (BSA), which purports to represent the interests of the commercial software industry while the Recording Industry Association of America (RIAA) represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, it tends to reduce the rights of its primary beneficiaries, the general public.

Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rightsholder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for these data. The BSA reports a study that claims "while $80 billion in software was installed on computers worldwide last year, only $51 billion was legally purchased" (Source:BSA). The BSA says "software pirates" avoided a cost of $29 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost that is yet uncounted.

But Microsoft is lowering its selling price on competition from Linux, for example with government clients. Because of this competition, Microsoft was forced to release an update to Internet Explorer to the public for Windows XP which it originally planned to release with its next operating system (Windows Vista).

Alternative systems of protection


Before intellectual property laws existed in their current form, there were socially-enforced systems for protecting intellectual works, such as the ancient scholarly taboo against plagiarism.

Other informal systems of protection include the customary code of non-infringement used by clowns to recognise each performer's exclusive right to their unique style of makeup, costume and persona. The universality of "The Code" supports the belief amongst clowns that this traditional protection is more effective than that provided by trademark and copyright law. Nevertheless, clowns sometimes do seek the protection of "clown material" using intellectual property laws, perhaps against infringement by third parties outside the clown community.

With the advent of valuable domain names, and the practice of domain name squatting, the right to use and register certain domain names are often contested, particularly where a domain name consists of or comprises another party's well known trademark. Domain name registries, which are generally non-governmental organisations, utilise dispute resolution systems which operate in parallel with national laws. ICANN requires that registries for top level domain names (eg. .com and .net) use the Uniform Domain-Name Dispute-Resolution Policy (UDRP), while other registries use systems such as Nominet UK's "Dispute Resolution Service" (for the .uk registry), which often adopt or mirror the provisions of the UDRP.

Valuation of intellectual property


Little argument over intellectual property (IP) would occur if it did not have a value for the owner. The principle of valuing IP is to determine the future income associated with its ownership (Smith&Parr: Valuation of Intellectual Property and Intangible Assets, 3rd Edition, Wiley 2000). Note that the value of IP is generally independent of its cost.

Determination of future income requires estimating the income due to the IP in each of all future years over its life; i.e., the amount sold and the net income per unit after routine sales costs are deducted. If the IP is used internally, then the savings due to owning it can be similarly estimated. The risk that intellectual property becomes obsolete is high, and reduces the current value. Without risk, future income is discounted by using a risk-free interest rate. Risks include unexpected competition, unauthorized copying, patent breaches or invalidation, and loss of trade secrets. With such risks, discount rates increase, based on the expected Beta coefficient. With high discount rates, sales that occur far in the future have little effect, simplifying the determination of the net current value of the included IP.

When the items being valued contain multiple IP components, then the proportion and life of each component must be determined. That case exists in the small, as for software that receives updates throughout the future, and in the large, for companies that vend many products. Shareholders of public companies in effect estimate the aggregate IP of a company, providing a market capitalization through the price they are willing to pay for shares, which is in effect the sum of the book value and the IP owned by the company.

U.S. generally accepted accounting principles (GAAP) do not allow the listing on corporate books of IP[http://en.wikipedia.org/wiki/Wikipedia:Citing_sources|citation needed]], making it hard for investors to be rational about share prices. IP is generated mainly through research, development, and advertising (IP generating expenses or IGE), making it hard to assess the effectiveness of IGE. Companies participating in the knowledge economy typically have a market capitalization which is a large factor greater than their book value, the sum of their tangible assets and cash. Normally it is only when a company has been purchased will the purchased IP appear as part of the purchased price allocation required by International Financial Reporting Standards Number 3 (IFRS 3) on Business Combinations.

Intellectual property rights in the digital era


Intellectual property rights (IPRs) in the digital era have added a new dimension to the traditional regime of IPRs. The complexity and jurisdictional issues relating to the Internet are challenging the IPR regime drastically. Though, TRIPS Agreement has tried to harmonise the IPRs all over the world yet the digital issues are vexing the IPRs enforcement everywhere. There is no harmonised law vis-à-vis IPRs in the digital era and this gives rise to conflict of laws. At the same time certain technological measures have also been adopted to tackle the violations of IPRs in the digital environment but their efficiency and effectiveness is yet to be examined.

See alsoWikiquote has a collection of quotations related to: Intellectual property






Types of intellectual property



Intellectual property in specific fields



Law - Portal

 

Protecting Your Idea

If applicable to your business, you may want to apply for trademarks, patents and your copyright.

  • Trademarks: Trademarks are names or symbols used in any commerce that is subject to regulation by state government or the U.S. Congress.
  • State Registration of a Trademark: Trademarks and service marks may be registered in a state for a term of ten years. For more information about Applications for Registration of Trademark or Service Mark in your state, contact your state government.
  • To register a trademark contact:

U.S. Department of Commerce
Trademark Office
2021 Jefferson Davis Highway
Arlington, Virginia 22202
(703) 305-8341 or (800) 786-9199

  • To register a patent, contact:

Asst. Commissioner for Trademarks, Patent Applications
Washington, D.C. 20231
(800) 786-9199

Also, visit their web site at http://www.uspto.gov/
Caution: Federally registered trademarks may conflict with and supersede state registered business and product names. Businesses are encouraged to check for conflicts with federal trademarks.

  • Patents

Contact:
Superintendent of Documents
P.O. Box 371954
Pittsburgh, Pennsylvania 15250-7954
(412) 512-1800
New and useful inventions can be protected by a U.S. patent. Professional assistance from a patent attorney is strongly urged because patent procedures are detailed and technical. A patent search is performed to see if a patent currently exists on the same or nearly the same device and, if not, to make proper application with the Patent Office.
Note: Only attorneys and agents registered with the U.S. Patent Office may represent inventors in related matters. The office has geographical and alphabetical listings of the more than 11,000 registered agents. Only these agents may perform patent searches in the patent office. Inventors or their attorneys can make arrangements with one of those agents. U.S. patents are issued by the Assistant Commissioner of Patents, Washington, D.C.
Additional information is provided in the publication, General Information Concerning Patents and other publications distributed through the U.S. Patent and Trademark Office.

  • Copyrights

Contact:
U.S. Library of Congress
James Madison Memorial Building
Washington, D.C. 20559
(202) 707-9100 (Order Line)
(202) 707-3000 (Information Line)
Copyrights protect the thoughts and ideas of authors, composers and artists. A copyright prevents illegal copying of written matter, works of art or computer programs. In order to ensure copyright protection, the copyright owner should always include notices on all copies of the work.

 

Small Business Legal Concerns


Intellectual Property (Section 2-Purdue University)

PURDUE UNIVERSITY
OFFICE OF THE PRESIDENT
EXECUTIVE MEMORANDUM No. B-10
(Supersedes Executive Memorandum No. B-10, dated March 21, 1973)

To: Vice Presidents, Chancellors, Deans, Directors and Heads of Schools, Division, Departments and Offices

Re: Policy on Intellectual Property


The following policies are effective immediately and supersede, in whole or in part, any prior inconsistent verbal or written policies of the University including, but not limited to, Executive Memorandum No. B-10, dated March 21, 1973.

INDEX

I. Purpose
II. Definitions
III. Applicability
IV. Agreements with Sponsoring Organizations
V. Outside Activities
VI. Inventions
VII. Copyrightable Works
VIII. Trademarks
IX. Tangible Research Property
X. Reconveyance of Rights to Inventor/Creator
XI. Equities of Participating Parties
XII. Committee on Patents and Copyrights
XIII. Miscellaneous

  1. Purpose

    Inventions, copyrightable works and other creative products of scholarship that have the potential to benefit the public through practical application may result from the activities of University personnel in the course of their duties or through the use, by any person, of university resources such as facilities, equipment, or funds.

    The purpose of this policy on intellectual property is to provide the necessary incentives and protections to encourage the discovery and development of new knowledge, and its application and transfer for the public benefit.

    In so doing, the University is guided by the following goals:

    1. To optimize the environment and incentives for research and scholarship, and for the creation of new knowledge at the University;

    2. To enhance and protect the educational, research and service missions of the University;

    3. To recognize and protect the interests of the public; of individual creators of novel concepts, inventions, and materials; of the University; and of sponsors of research and scholarship;

    4. To bring the fruits of scholarship into practical use for the benefit of society as quickly and effectively as possible; and

    5. To protect the interests of the people of Indiana and the Trustees of Purdue University through a due recovery by the University of its investment in research and scholarship.

  2. Definitions

    As used in this Memorandum, the following terms have the meaning indicated:

    1. Intellectual Property. The term "Intellectual Property" as used herein is broadly defined to include inventions, copyrightable works, trademarks, and tangible research property. Intellectual Property includes, but is not limited to, that which is protectable by statute or legislation, such as patents, copyrights, trademarks, service marks, trade secrets, integrated circuit masks, and plant variety protection certificates. It also includes, but is not limited to, the physical embodiments of intellectual effort, for example, models, machines, devices, designs, apparatus, instrumentation, circuits, computer programs, visualizations, biological materials, chemicals, other compositions of matter, and plants.

    2. Inventions. The term "Invention" means a process, method, discovery, device, plant, composition of matter, or other creation that reasonably appears to qualify for protection under the United States patent law (utility patent, plant patent, design patent, certificate of Plant Variety Protection, etc.), whether or not patented at any time under the federal Patent Act as now existing or hereafter amended or supplemented. An Invention may be the product of a single inventor or a group of inventors who have collaborated on a project.

    3. Copyrightable Work. The term "Copyrightable Work" means an original work of authorship, which has been fixed in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, such as:

      • Literary works such as books, journal articles, poems, manuals, memoranda, tests, computer programs, instructional material, databases, bibliographies;
      • Musical works including any accompanying words;
      • Dramatic works, including any accompanying music;
      • Pantomimes and choreographic works (if fixed, as in notation or videotape);
      • Pictorial, graphic and sculptural works, including photographs, diagrams, sketches and integrated circuit masks;
      • Motion pictures and other audiovisual works such as videotapes;
      • Sound recordings;
      • Architectural works; and
      • Any other works determined to be copyrightable under the federal Copyright Act as now existing or hereafter amended or supplemented.

      A Copyrightable Work may be the product of a single author or a group of authors who have collaborated on a project.

    4. Trademark (including Service Mark). The terms "Trademark" and/or "Service Mark" mean any word, name, symbol or device, or any combination thereof, adopted and used to identify goods or services and distinguish them from those manufactured or sold by others, such as names or symbols used in conjunction with plant varieties or computer programs.

    5. Tangible Research Property. The term "Tangible Research Property" means perceptible items produced in the course of research including such items as biological materials, engineering drawings, integrated circuit chips, computer databases, prototype devices, circuit diagrams, and equipment. Individual items of Tangible Research Property may be associated with one or more intangible properties, such as Inventions, Copyrightable Works, and Trademarks. An item of Tangible Research Property may be the product of a single creator or a group of individuals who have collaborated on a project.

    6. University Resources. The term "University Resources" means any support administered by or through Purdue University, including but not limited to University funds, facilities, equipment or personnel, and funds, facilities, equipment, or personnel provided by governmental, commercial, industrial, or other public or private organizations which are administered or controlled by the University. University Resources are to be used solely for University purposes and not for personal gain or personal commercial advantage, nor for any other non-University purposes. Intellectual Property that is developed with integral and significant use of University Resources, where use was essential and substantial rather than incidental, shall be considered to have been created through use of University Resources. The application and interpretation of the above terms in any particular situation rests with the Committee on Patents and Copyrights and its determination shall be final, subject to the review procedures set forth in this Memorandum.

      The University recognizes and affirms the traditional freedom of its faculty and staff to publish pedagogical, scholarly, or artistic works without restriction. Accordingly, notwithstanding the foregoing general policy regarding the use of University Resources, when determining ownership and license rights in Copyrightable Works, the University will not construe the provision of office space, on-campus training, library facilities, ordinary access to office computer workstations and software or networks, or salary as constituting significant use of University Resources, except for those instances where the resources were furnished specifically to support the development of such Copyrightable Works.

    7. Committee on Patents and Copyrights. The term "Committee on Patents and Copyrights" means a standing committee appointed by the President of Purdue University whose organization, purpose and powers are specified in this Executive Memorandum.

  3. Applicability

    This policy, as amended from time to time, shall be deemed a part of the conditions of employment for every employee of the University, and a part of the conditions of enrollment and attendance at the University by students. It is also the policy of the University that, by participating in a sponsored project and/or making significant use of University Resources and/or participating in teaching, research, or service projects, individuals (including non-compensated individuals) accept the principles of ownership of Intellectual Property as stated in this policy, unless an exception is approved in writing by the University. All creators of Intellectual Property shall execute appropriate assignment and/or other documents required to set forth effectively ownership and rights as specified in this policy.

  4. Agreements with Sponsoring Organizations

    No agreements assigning ownership or rights in Intellectual Property shall be executed by individuals covered by this policy directly with a sponsoring organization without the prior written approval of the President of the University. The University reserves the sole right to make agreements with sponsoring organizations and to include therein such provisions regarding the ownership and disposition of rights in Intellectual Property as it deems to be in the interest of the University and the public.

  5. Outside Activities

    To perform outside activities, faculty and staff members must obtain prior approval of the President of the University, on President's Form 32a or revisions thereof. The individual may own rights to Inventions, Copyrightable Works, and other forms of Intellectual Property made or developed in outside activities, other than those involving the use of University Resources, provided such ownership is approved by the President on Form 32a. University employees engaged in outside activities shall not enter into Intellectual Property agreements related to outside employment, such as consulting or summer employment agreements, without affirmative notice to the prospective employer that the Intellectual Property rights of the University cannot be subordinated to a third party consulting or employment agreement, unless such agreement has been made a part of President's Form 32a or revisions thereof and has been approved by the President of the University.

  6. Inventions

    1. Principle of University Ownership. The University shall own all domestic and foreign rights in and to any and all Inventions made or developed by all persons subject to this policy under Section III either in the course of employment by the University, or through the use of University Resources.

      The rights owned by the University include all economic and property rights as well as the right to patent Inventions. Net proceeds will be shared with the inventor, as provided in the General Principle of Division (Section XI. 2.b. below).

    2. Course of Employment. Inventions will be considered as having been developed in the course of employment where conception and/or development is in the individual's subject area of principal competence for which the individual is employed.

    3. Disclosure and Protection. All persons subject to these regulations under Section III shall promptly disclose in writing, through the appropriate department head and dean, all Inventions that they create, and assign to the University any Invention covered by this policy. If more than one individual participated in the discovery or development, the report shall be signed by all such participants. The report shall constitute a full and complete disclosure of the subject matter of the discovery or development and the identity of all persons participating therein. Such persons shall cooperate with the University, to the best of their ability, in protecting intellectual property rights in the Invention, furnish such additional information and execute such documents from time to time as the University may reasonably request.

      A person who has any question as to the possible commercial value of particular inventions, or as to possible University ownership shall report the relevant facts to the University through the appropriate department head and dean. The department head and dean shall submit their written recommendations on the case to the Committee on Patents and Copyrights.

    4. Cost of Patents. The University will determine whether to commit funding to obtain protection for the Invention and/or to seek to identify one or more licensees who will bear the cost of obtaining patent protection, and shall so notify the inventor of the decision.

    5. Negotiation and Execution of License Agreements for Inventions. The University has sole authority to negotiate with third parties having an interest in license agreements granting the right to use, develop, or otherwise commercialize University-owned Inventions. Any agreement to license or transfer ownership of University-owned Inventions must be approved by the President or his/her designee in writing.

    6. Sponsor Obligations. The University shall coordinate reporting requirements and other obligations to research sponsors regarding Inventions developed under a research contract or grant, including but not limited to obligations to the US Government under 37CFR401.

    7. Distribution of Royalty Income. Royalty income received by the University for such Inventions will be distributed in accordance with the General Principle of Division (Section XI. 2.b below). Physical embodiments of Inventions may also be subject to the University's policy on Tangible Research Property (see Section IX below).

  7. Copyrightable Works

    1. Principle of University Ownership. It is the policy of the University that all rights in Copyrightable Works shall remain with the creator unless:

      1. The Copyrightable Work is created pursuant to the terms of a University agreement with an external party.

      2. The Copyrightable Work is created as a specific, written requirement of employment or as an assigned University duty that is specified in writing, for example, in a written job description or an employment agreement, and/or when the Copyrightable Work is prepared at the UniversityÕs expense ("work for hire"). The term "work for hire" has a specific definition for purposes of the memorandum that is or may be different from the statutory definition provided in the Copyright Act, 17 U.S.C. 101. Such specification may define the full scope or content of the employeeÕs University employment duties comprehensively or may be limited to terms applicable to a single Copyrightable Work. See Section VII.3. below for further elaboration.

      3. The Copyrightable Work is specifically commissioned by the University. The term "commissioned work" has a specific definition for purposes of this memorandum that is or may be different from the statutory definition provided in the Copyright Act, 17 U.S.C. 101. The term "commissioned work" is hereafter used to describe a Copyrightable Work prepared under a written agreement between the University and the creator when (i) the creator is not a University employee or (ii) the creator is a University employee but the Copyrightable Work to be performed falls outside the normal scope of the creatorÕs University employment. Contracts covering commissioned works shall specify that the author shall convey by assignment, if necessary, such rights as are required by the University. See VII.4. below for further elaboration.

      4. In the judgment of the Committee on Patents and Copyrights the creator of the Copyrightable Work made more than incidental use of University Resources.

      5. The Copyrightable Work is also patentable and/or is associated with a University Trademark. The University reserves the right to pursue multiple forms of legal protection concomitantly if available. Computer software, for example, can be protected by copyright, patent, and trademark.

    2. Instructional Materials and Traditional Works of Scholarship. In accord with academic tradition, and unless excepted by the conditions of Section VII.1. above, the University does not claim ownership to instructional materials or traditional works of scholarship, regardless of their form of expression. Instructional materials are works, other than works excepted by the terms of Section VII.1. above, the primary use of which is for the instruction of students. Such works may include textbooks, syllabi, and study guides. Traditional works of scholarship are works, other than works excepted by the terms of Section VII.1. above, reflecting research and/or creativity which, within the University, are considered as evidence of professional advancement or accomplishment. Such works may include, but are not limited to, scholarly publications, journal articles, research bulletins, monographs, books, plays, poems, musical compositions and other works of artistic imagination, and works of students created in the course of their education, such as dissertations, papers and articles, when in the judgment of the Committee on Patents and Copyrights, the creator of the traditional work of scholarship did not make more than incidental use of University Resources. If an individual subject to this policy retains title to copyright in pedagogical, teaching or course materials, such as class notes, curriculum guides and laboratory notebooks, that individual shall assign to the University a limited, royalty-free right to use, duplicate, or distribute the materials for non-profit, educational purposes within the University subject to the conditions of Section XI.1.

    3. Work Created as a Specific Requirement of Employment or as an Assigned University Duty (institutional works and works-for-hire). The University shall retain ownership of Copyrightable Works created as institutional rather than personal efforts; that is, created at the instigation of the University, under the specific direction of the University, for the UniversityÕs use, by a person acting within the scope of his or her employment or subject to written contract. Institutional works include Copyrightable Works that are supported by a specific allocation of University funds. Institutional works also include Copyrightable Works whose authorship cannot be attributed to one or a discrete number of authors but rather result from simultaneous or sequential contributions over time by multiple faculty, staff and/or students. For example, software tools developed and improved over time by multiple faculty, staff and/or students where authorship is not appropriately attributed to a single or defined group of authors would constitute an institutional work. However, the mere fact that multiple individuals have contributed to the creation of a Copyrightable Work shall not cause the Copyrightable Work to constitute an institutional work. Work assigned to programmers is institutional work or "work for hire," as is software developed for University purposes by staff working collaboratively. Brochures, training programs, CD-ROMs, videos, and manuals, which staff members are hired to develop, are other examples of institutional works, or work for hire. The University owns all right, title and interest in such institutional works or works for hire. Employees shall execute any necessary confirmatory assignments to the University to effectuate the UniversityÕs ownership of such institutional works or works for hire.

    4. Works of Non-Employees. Under copyright law, Copyrightable Works of non-employees such as consultants, independent contractors, etc. generally are owned by the creator and not by the University, unless there is a written agreement to the contrary. As it is the UniversityÕs policy that it shall retain ownership of such Copyrightable Works (created as institutional rather than personal efforts, as described in Section VII. 1.(c), above), the University will generally require a written agreement from non-employees that ownership of such Copyrightable Works will be assigned to the University.

      Examples of Copyrightable Works which the University may retain non-employees to prepare are:

      • Reports by consultants or subcontractors
      • Computer software
      • Architectural or engineering drawings
      • Illustrations or designs
      • Artistic works

    5. Videotaping and Related Classroom Technology. Any courses taught at Purdue, which are videotaped or recorded using any other media are University property, and may not be further distributed without permission from the cognizant academic dean. Blanket permission is provided for evanescent video or other copies for the use of students, or for other University purposes. Prior to videotaping, permission should be obtained from anyone who will appear in the final program.

    6. Contractual Obligations of the University. This copyright policy shall not be interpreted to limit the University's ability to meet its obligations for deliverables under any contract, grant, or other arrangement with third parties, including sponsored research agreements, license agreements and the like. Copyrightable Works that are subject to sponsored research agreements or other contractual obligations of the University shall be owned by the University, so that the University may satisfy its contractual obligations.

    7. Disclosure, Assignment, and Protection. Authors of Copyrightable Works that are not owned by the University own the copyrights in their works and are free to publish them, register the copyright, and to receive any revenues which may result therefrom, subject to the requirements described in Section VII.2. if applicable.

      All persons subject to this policy shall promptly disclose in writing to the University, through the appropriate department head and dean, any Copyrightable Work that, as a work-for-hire or institutional work, is owned by the University under Section VII.1. above, including those made under sponsored research or cooperative arrangements. Likewise, persons subject to this policy shall also promptly disclose in writing and assign to the University all Copyrightable Works that are not works-for hire or institutional works but for which right, title and interest are claimed by the University under Section VII.1. above. If more than one individual participated in the creation of the Copyrightable Work, the report shall be signed by all such participants. The report shall constitute a full and complete disclosure of the subject matter of the Copyrightable Work and the identity of all persons participating therein. Such persons shall cooperate with the University, to the best of their ability, in protecting intellectual property rights in the Copyrightable Work, furnish such additional information and execute such documents from time to time as the University may reasonably request. Furthermore, upon request by the University to perfect intellectual property rights, such persons shall warrant that, to the best of their knowledge, the Copyrightable Work does not infringe upon any existing copyright or other legal rights; that work not identified as quotations is the expression or creation of the author; and that necessary permission for quotation and the use of third party works has been obtained.

      A person who has any question as to the possible commercial value of particular Copyrightable Works, or as to possible University ownership shall report the relevant facts to the University through the appropriate department head and dean. The department head and dean shall submit their written recommendations on the case to the Committee on Patents and Copyrights (see Section XII).

    8. Negotiation and Execution of Agreements for Copyrightable Works. The University has sole authority to negotiate with third parties license agreements granting the right to use, develop, or otherwise commercialize Copyrightable Works owned by the University. Any agreement to license or transfer ownership of University-owned Copyrightable Works must be approved in writing by the President or his/her designee.

    9. Sponsor Obligations. The University shall coordinate reporting requirements and other obligations to research sponsors regarding Copyrightable Works developed under a research contract or grant, including but not limited to obligations to the US Government under 37CFR401.

    10. Distribution of Royalty Income. Royalty income received by the University for such Copyrightable Works that are not works-for-hire or institutional works will be distributed in accordance with the General Principle of Division (Section XI.2.b below). Physical embodiments of Copyrightable Works may also be subject to the University's policy on Tangible Research Property (see Section IX. below).

  8. Trademarks

    A Trademark may identify an item of Intellectual Property, such as a computer program or a plant variety, or it may identify an educational, service, public relations, research, training or athletic program of the University. The University owns all right, title and interest in such Trademarks related to an item of Intellectual Property owned by the University or related to a program of education, service, public relations, research or training program of the University. All income from the licensing of such Trademarks associated with University Intellectual Property or University programs shall belong to the University and shall be treated as described under the General Principle of Division (Paragraph XI.2.b. below).

  9. Tangible Research Property

    The University owns all right, title, and interest in Tangible Research Property related to an individualÕs employment responsibilities and/or developed with support from University Resources.

    For purposes of management of the asset, Tangible Research Property shall be managed as an Invention under Section IV, with distribution of income from the licensing and/or commercialization of such Tangible Research Property made in accordance with the General Principle of Division (Section XI.2.b. below).

  10. Reconveyance of Rights to Inventor/Creator

    When all right, title and interest in an Invention, Copyrightable Work, Trademark, Tangible Research Property or other form of Intellectual Property is assigned to the University according to the provisions of this policy, the inventor/creator of the Invention, Copyrightable Work or other form of Intellectual Property may make a request to the Committee on Patents and Copyright that ownership be reconveyed back to the inventor/creator. Such a request can, at the recommendation of the Committee, and with the approval of the President of the University and the Board of Trustees in their absolute discretion (see Section XII. 3.) or their designee, be granted if it does not: (i) violate any legal obligations of or to the University, (ii) limit appropriate University uses of the materials, (iii) create an unmanageable, real or potential conflict of interest for the inventor/creator, (iv) have significant commercial or public value which may best be exploited by the University itself, or (v) otherwise conflict with University goals or principles.

  11. Equities of Participating Parties

    1. General Policy

      It is the policy of Purdue University to encourage and recognize the creative efforts of University personnel and, in so far as the Board of Trustees of the University deems it consistent with the public interest, to share the financial rewards of such efforts on an equitable basis. This general policy may be rescinded or amended at any time by the University, and it is not intended to and does not create any legally enforceable rights whatsoever of University personnel with respect to any present or future Invention, Copyrightable Work, Trademark, Tangible Research Property or other Intellectual Property. The rights of University personnel in and to Inventions, Copyrightable Works, Trademarks, Tangible Research Property and other Intellectual Property belonging to the University under Sections VI and VII herein will be created and exist only by virtue of written agreements between the University and the individual or individuals concerned, as provided below.

      Two categories of use are differentiated for the purposes of this policy with respect to University-sponsored, Copyrightable Works.

      1. Internal use within the University or by any unit of the University including Regional Campuses, Cooperative Extension Service, Continuing Education or any other branch or subdivision of the University. Each instance of use internal to the University requires approval of the department and school primarily responsible for the materials.

        As long as the author or producer of University-sponsored, Copyrightable Works remains a member of the staff of the University:

        1. His/her approval shall be required for each instance of internal use of the Copyrightable Work, but approval may not be unreasonably withheld, as determined by the Committee on Patents and Copyrights.

        2. Unless otherwise stipulated in written agreement between him/her and the University, he/she may require revision of the Copyrightable Work prior to any instance of internal use. He/she agrees that the University shall have the same rights with respect to any revisions that it had in and to the original Copyrightable Work.

        3. If the revision is not feasible to the University, he/she may require that the Copyrightable Work be withdrawn from use.

        If the University-sponsored, Copyrightable Works are used internally without revision for a period of three years, it shall be the policy of the University to ask the author or producer and the appropriate University instructional unit to review the Copyrightable Work and determine whether they shall continue to be used.

        If the University employment of an author or producer terminates, the University retains the right to make internal use of his/her University-sponsored, Copyrightable Work for whatever part there may remain of a period of three years after the date on which the Copyrightable Work was most recently revised, or, in the event that it has not been revised, a period of three years after the date on which its initial production was completed. Prior to the end of this three-year period, the University may negotiate a contract with the author or producer, or his/her estate, stipulating the professional and academic conditions for subsequent internal use of the Copyrightable Work and the procedures for its revision.

        For internal use of Copyrightable Work, the author or producer will not receive any royalty income.

      2. External use outside the University, including but not limited to other educational institutions, government and other nonprofit institutions, and commercial organizations operating under lease or other contractual arrangements. Licensing or sale of University-sponsored, Copyrightable Works for external use shall be preceded by a written agreement between the University and author or producer specifying the conditions of use, and including provisions protecting the right of the author or producer to revise the Copyrightable Work periodically, or to withdraw it from use in the event revision is not made.

        For external use of University-sponsored, Copyrightable Works, which are not works-for-hire or institutional works, through licensing or sale, the author or producer will share in any income received under the General Principle of Division as stated in Section XI.2.b. below).

    2. Determination of Equities

      1. Determination by the Committee on Patents and Copyrights. The Committee on Patents and Copyrights (the Committee) shall determine:

        1. when the rights in and to Inventions, Copyrightable Work, Trademarks, Tangible Research Property, and other forms of Intellectual Property belong to the University under the provisions of this Memorandum;

        2. whether the University personnel shall be entitled to share in the net proceeds of such Inventions, Copyrightable Work, Trademarks, Tangible Research Property, and other forms of Intellectual Property and, if so,

        3. what the respective equities of the University and of the University personnel shall be.

      2. General Principle of Division. The Committee shall, as a general principle but subject to all relevant provisions of this Memorandum, award a two-thirds interest to the University and a one-third interest to University personnel in the net proceeds derived from Inventions, Copyrightable Works, Trademarks, and Tangible Research Property, and other Intellectual Property belonging to the University that are not works-for-hire or institutional works. The Committee may make a different determination of the equities of the respective parties depending upon the circumstances of each individual case, and may waive or release any or all of the rights of the University in appropriate cases. The Committee shall consider in each case the extent, if any, to which the Invention, Copyrightable Work, Trademark, Tangible Research Property or other Intellectual Property was made or developed partially outside the course and scope of employment by the University; the extent, if any, to which University Resources contributed to the discovery or development; and such other factors as the Committee considers relevant and material.

      3. Division of Equities among University Personnel. If the Committee determines that more than one individual is entitled to an equity in any Invention, Copyrightable Work, Trademark, Tangible Research Property, or other Intellectual Property the Committee shall determine the manner in which the equity award to University personnel as a group shall be divided among the individuals constituting the group, provided, however, that if such individuals shall have agreed among themselves, such agreement shall be conclusive.

      4. Agreement Concerning Equities. Notwithstanding any determination by the Committee, or any other provision of this Memorandum, University personnel shall have no equities or rights whatsoever in Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property belonging to the University unless and until a written agreement has been executed by the University and the University personnel consistent with the determination of the Committee.

      5. Division of the UniversityÕs Interest. The UniversityÕs two-thirds interest in net proceeds derived from Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property shall be distributed 50% to the department/administrative unit generating the income and 50% to the Trask Fund, which supports end stage development and increases the utility to the public of Inventions , Copyrightable Works, Trademarks, Tangible Research Property, and other forms of Intellectual Property previously disclosed to the University.

        Under circumstances where a recognized University center/institute plays a significant role in the development of Intellectual Property and the dean or vice president having administrative responsibility for the center/institute so recommends in writing, the share of net proceeds normally distributed to the department/administrative unit (above) may be distributed one-third to the center/institute and two-thirds to the academic units having administrative responsibility for those staff who are participating in the distribution of the inventorÕs share of royalty proceeds.

      6. Net Proceeds. The net proceeds derived from Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property shall mean the gross receipts therefrom (including, but not limited to, rents, royalties, dividends, earnings, gains, and sales proceeds), less all costs, expenses and losses paid or incurred by the University in connection therewith (including, but not limited to, all direct costs and expenses; indirect costs and expenses as allocated and determined by the University; costs and expenses of obtaining and securing patents or copyrights; and all attorneys' fees). If agreed in writing prior to or at the time of allocation of University funds for development, some or all of the UniversityÕs identified costs of development may be recovered prior to distribution of net proceeds.

      7. Sponsored Programs. In cases of Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property made or developed in the course of sponsored programs, the determinations of the Committee shall necessarily be subject to and limited by the provisions of any contracts to which the University or University personnel are parties, provided any such contracts of University personnel are authorized as provided elsewhere in this Memorandum.

      8. University's Right to Dispose of Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property. Notwithstanding any determination made by the Committee, or any other provision of this Memorandum, the University reserves the sole right to negotiate and enter into contracts for the exercise, sale, or other disposition of any and all rights in Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property belonging to the University on such terms and conditions and for such consideration, if any, as the University, in itÕs sole discretion, shall determine, and University personnel shall have no rights with respect thereto except the right to receive such share of the net proceeds, if any, as the Committee determines; provided however, that in the case of Copyrightable Works, all such agreements by the University shall contain appropriate provisions agreeable to the University and University personnel involved pertaining to the use and reuse of the Copyrightable Works within and without the University, the length of time in which the Copyrightable Works may be used or reused, and the revision or withdrawal of the Copyrightable Works.

  12. Committee on Patents and Copyrights

    1. Organization and Powers of the Committee

      1. Organization. The Committee shall consist of at least eleven members. There shall be three ex officio members: the Executive Vice President and Treasurer; the Vice President for Research; and the Vice President for Business Services and Assistant Treasurer. There shall be at least eight additional members appointed by the President for terms of three years each. Three of these shall be appointed upon the recommendation of the University Senate. The terms of the Senate members shall be staggered to provide that one new member per year will be added to the Committee.

        The Vice President for Research shall be Chairman of the Committee, which shall elect such other officers as it deems necessary. One of the Committee members appointed by the President shall be designated as Executive Secretary of the Committee and will be responsible for keeping appropriate written records of its proceedings and actions.

      2. Powers. Subject to the approval and authority of the Board of Trustees of the University, the Committee shall have the following powers:

        1. Make the determinations required of it by Section XI.

        2. Appoint such subcommittees and consult with such experts as it may deem necessary in connection therewith; and consult with the officers of the University concerning the implementation of such determinations.

        3. Adopt administrative regulations governing matters under its jurisdiction not inconsistent with this Memorandum.

        4. Take such other action in connection with Inventions, Copyrightable Works, Trademarks, Tangible Research Property, and other Intellectual Property in which the University has or may have an interest as may be requested or approved by the President of the University.

        5. Review from time to time the policy set forth in this Memorandum and recommend changes to the President.

    2. Action by the Committee

      The Committee shall promptly consider all reports of Inventions, Copyrightable Works, Trademarks, Tangible Research Property and other Intellectual Property, and shall make the determinations required under Section XI within a reasonable time. The University personnel involved shall be entitled to appear before the Committee and present evidence with respect to the report. The Committee's determination shall be made in writing and shall contain a statement of its findings and grounds of decision.

    3. Review of Committee Action

      The President of the University may review any determination of the Committee, and he/she shall do so at the request of any interested person. The President may affirm, modify, or reject any determination of the Committee, or refer the matter to the Board of Trustees of the University for final determination, with his/her recommendations. If the Committee recommends that in any particular case the University should have less than a two-thirds interest in Inventions, Copyrightable Works, Trademarks, Tangible Research Property, or other Intellectual Property belonging to the University, such recommendation shall be referred to the Board of Trustees through the President of the University, and the action of the Board of Trustees in their absolute discretion shall be final. The determination of the Committee, the President of the University, or the Board of Trustees of the University, as the case may be, shall be final and conclusive and binding upon the University personnel involved as well as upon the University.

  13. Miscellaneous

    1. Designee. The University may designate Purdue Research Foundation or any other representative to act for it in any respect hereunder.

    2. Amendments. This Memorandum may be amended or rescinded in whole or in part at any time by the Board of Trustees of the University or by the President of the University under the authority of the Board of Trustees.

 

Steven C. Beering
President


 



 


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