Different types of intellectual property

Intellectual property refers to creations of the mind. It can be an invention (patents and utility model), design (industrial design), brand name (trademark) or a literary and artistic work (copyright).

Intellectual property should not be limited to concepts and ideas as these are rightfully assets which, at times, can become very valuable to a business.

Aside from being an asset that has a clearly determinable value, owners of intellectual property have the right to exclude others from the use of the property, and charge fees in the form of royalties and license fees for the right to use their property, thereby generating cash flow and income for the business.

The Philippines is a signatory to the Convention establishing the World Intellectual Property Organization as well as other international treaties and agreements. The 1987 Philippine Constitution also provides that the state shall protect and secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their intellectual property and creations. (Article XIV, Section 13)

The Philippine government, in keeping with its commitment to these international conventions and the Philippine Constitution, consolidated its intellectual property laws and passed Republic Act 8293–  the Intellectual Property Code of the Philippines (IP Code) which took effect on Jan 1, 1998.

The following are the types of intellectual property:

1. Patents

A patent is any new, inventive, and useful product which may be a solution to a problem, or involves an inventive step and is industrially applicable. Patents may relate to a product, a process or an improvement of a product or process. (Sec. 21, IP Code)

Under the IP Code, an invention is not considered new if it already forms part of the domain of prior art or is already known or already available publicly. It involves an inventive step if the step is not obvious to a person skilled in the art, and it is industrially applicable if it can be produced and used in any industry.

Examples of patents are the lightbulb, the telephone, Bluetooth technology, and even Google Page Rank.

The term of protection given to registered patents is 20 years from filing date.

2. Utility models

A utility model is a technical solution to a problem or activity which is new and industrially applicable but, unlike patents, does not involve an inventive step. (Sec. 109, IP Code)

These models have a lower level of protection than patents as they refer to minor or incremental innovations which relate to protecting an aspect of a product such as functions of toys, machinery, electronics and the like.

Examples of utility models are roofing designs  and structures, process of manufacturing banana peel biscuits, process of making seaweed flour, formula for making Bangus fish sticks infused with seaweed, mechanical controllers for certain machines, and even a juice blend from various vegetables. (www.ipophil.gov.ph)

A utility model is entitled to seven years of protection from the date of filing, with no possibility of renewal.

3. Industrial design

An industrial design is any composition of lines, colors, or any three-dimensional form, provided that it gives a special appearance to and can serve as a pattern for an industrial product. Handicrafts, jewelry, vehicles, appliances may be the subject of industrial designs. (Sec. 112, IP Code)

The IP Code also provides for registration and protection of integrated circuits and layout-designs.

An industrial design relates to the appearance of a product whereas a utility model involves the technical aspect of the product.

In order to be registrable, an industrial design must be a new or original creation and conforms to the rules on registrability of such designs.

It is notable that an industrial design can also be protected as a copyright. (Sec. 172 (h), IP Code)

An excellent example of an industrial design is the Coca-Cola bottle, where inspiration came from a cocoa pod which led to the iconic ribbed bottle shape.

The registration for an industrial design is for a period of five years fromthe application filing date and it may be renewed for not more than two consecutive periods of five years each.

4. Trademarks

A trademark is a word, a group of words, sign, symbol, logo or a combination thereof that identifies and differentiates the source of the goods or services of one entity from those of others. (Sec. 121, IP Code)

Aside from being a source-identifier, differentiator, quality indicator, and an advertising device, a protective mark may also bring another stream of income to the owner through licensing or franchising.

A Wordmark protects the meaning of the word itself apart from the graphic design. If the name of a competitor’s company is similar to one’s wordmark, then there could be an infringement. A Figurative Mark designates a two-dimensional mark showing exclusively graphic elements such as images, figurative elements and illustrations. A Combined Mark is a trademark registering the word mark and figurative elements together where protection applies to the entire trademark as a whole and not the word and image separately.

The period of protection is 10 years from the date of registration and is renewable for 10 years at a time which means that trademarks can last forever.

5. Copyright

Copyrights are original works which refer to literary, scientific and artistic intellectual creation where protection is automatically granted to artists, authors, and other creators from the moment of creation of the work. (Secs. 172 & 173, IP Code)

Registration of the copyrightable work is by deposit of the work with the National Library, Supreme Court or the Bureau of Copyright and Related Rights of the Intellectual Property Office.

While registration is not necessary for protection of the work, it does help to establish ownership over the work as deposit of the work is with an official public record. Registration and deposit also facilitates transactions over the copyright such as licensing, assignment/ sale, transfer and mortgage.

Examples are books, writings, paintings, sculptures, other works of art, computer programs, films, music, and mobile applications.

The term of protection for copyright in literary, artistic works and derivative works is generally the lifetime of the author plus 50 years.

6. Trade secrets

Finally, there are Trade Secrets which are also a type of intellectual property. To qualify as a trade secret, information must be commercially valuable, known only to a limited group of people and is subject to steps to keep it secret and confidential.

The unauthorized acquisition, use, or disclosure of secret information is regarded as an unfair practice and a violation of trade secret protection.

Trade secrets may come in the form of technical information (manufacturing process, test data, designs, drawings and computer programs), commercial information (distribution methods, list of suppliers and clients, and advertising strategies), or a combination of both.

To protect trade secrets, businesses may use the various means of intellectual property protection such as registration of trademarks, utility models, industrial designs, patents and even copyright. Businesses can also take other contractual and practical measures to protect their trade secrets and intellectual property assets such as execution of non-disclosure agreements, non-competition agreements, implementing the proper information technology security infrastructure, and controlling the of access of information to only a select few. (www.wipo.int)

(The author, Atty. John Philip C. Siao, is a practicing lawyer and a founding partner of the Tiongco Siao Bello & Associates Law Offices, a professor at the MLQU School of Law, and an arbitrator of the Construction Industry Arbitration Commission of the Philippines. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)