Intelectual Property Essay

2241 words - 9 pages

S t u d e n t N u m b e r : 1 0 0 2 3 2 2 6 3
Assignment 1
08 Fall

Conflicts resulting from the unauthorised use of protected intellectual property are often in our times due to globalisation, information flow and technological development. Issues involving trans-border abuses have arisen nowadays, in a world characterised by unlimited communication and global trade relations. Economists warn that some patents may be used as tools of extortion rather than protecting the rights of inventors; for exploitation and inter- sector wars than actually to make new things. As many economists and lawyers agree, this system is not working anymore, particularly for the technology industry. Apple vs. Samsung patent war is only one of many examples of this situation. A patent is a property right granted to the developer by the local government and manifests in his or hers right to exclude others from using or selling the invention (Goldstein 1994: 9-10; Novak 1996: 12). Patented software can be distributed (theoretically) without fear of loss and an owner of the patent can prevent its use by others, even if an unauthorized user develops identical software not aware that a patent in this field already exists. Two of the most alarming problems in patent application are: the tendency for developing similar patentable software concurrently and the possible anti-competitive influence of the patent system (Scotchmer 1991: 29; Scherer 2006: 8-9; Macdonald 2004: 138; Bessen and Meurer 2008: 257; Moir 2009: 185; Greenhalgh, Rogers 2010: 61). Another important issue is the problem of application of one country's laws by the courts of another, which is a difficult task (Fentiman 2005: 132). It is a common legal practice that the law of the country of copyright/patent's owner deals with issues concerning e.g. ownership, duration, transfer, scope or infringement. This rule is called lex loci protectionis and has been criticized for many problems it causes. Those problems include divergence between the legal situation, having different countries with their own separate legal systems and jurisdictions, and the economic situation in a common market where people and businesses are operating in a number of territories. This is not only a problem with patents, trademarks, copyrights, etc., but certainly also for unlawful competition, transport, insurance, environmental issues, banking, and insolvency, just to name a few. When discussing problems concerning the Apple vs. Samsung patent war, two main issues are to be analysed. Firstly, rights in intellectual property are exclusive rights, granted or protected by a state, to engage in some economic activity (in the form of production or exploitation) within (or connected with) that state (Cornish 2003: 17-18). To what extent such rights exist is a matter of economic concern to that state. Secondly, the question which law governs issues in intellectual property is not...

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