Lesson 4 : Patents 3rd year (LMD)

Every food sector business creates what is referred to as intellectual property. Assets can be extremely
valuable, particularly when a company becomes successful. If any form of intellectual property is not
protected at the beginning, its value can be lost, stolen or diminished. Intellectual property protection in the
food sector covers anything from the production of ingredients and creation of recipes to the labelling,
marketing and branding of the finished product. Types of intellectual property relevant to the food industry
include patents, trade marks, copyright, trade secrets and design rights. IP differs from other types of property
because it has no physical form and comes into being because of human intelligence, creativity and
imagination.

Industrial design protection allows its owner to control the exploitation of the ornamental shapes
associated with products such as the stylish shape of a new sports car, the distinctive plastic casing of a
certain type of computer or the shape of a soft drink bottle. A trademark allows its owner to confirm the
origin of his goods to the public. Examples of trademarks include the distinctive names of products such as
Coca Cola® or a logo such as the Mercedes Benz® triad symbol. A service mark is a form of trademark that
allows its owner to verify the origin of a service to the public such as “Cheques for Two®.” A copyright
refers to original expressions and “works of authorship.” The person who creates a copyrighted work is
called an author. Examples of copyrighted works include: paintings, photography, music, dances, poems,
novels etc. In addition, copyright applies to some technical things that have an element of originality such as
computer software, technical specifications and related documentation.

A patent is one type of intellectual property referring to a legal document granting its holder the
exclusive right to control an invention, within a limited area and time by stopping others from making, using
or selling the invention without authorization. For example, patents could be granted for a battery that
efficiently stores solar energy indefinitely and without loss, a vaccine to protect against malaria or a new
compound for transforming fish bones into agricultural fertilizer. This document is issued upon application,
by a government office (or a regional office acting for several countries), which describes an invention and
creates a legal situation in which the patented invention can normally only be exploited (manufactured, used,
sold, imported) with the authorization of the owner of the patent.

Patents may be granted to protect inventions that are new, involve an inventive step and are capable of
industrial application. The patent has to be for an invention that works, or as it is put in some countries, the
invention must be capable of being “reduced to practice.” Thus, a clever notion that cannot presently work
(e.g. a time machine) cannot be patented. Different countries have different ways of expressing the criteria
for patents. For example, patents must generally be technical in nature. The term of a patent is generally
twenty years from the filing date of the patent application. A patent gives its owner the right to exclude others
from making, using, offering for sale or selling the invention, or importing the patented invention into the
country where the patent has been granted. In other words, a patent provides a property right that allows the
owner to say who cannot use the invention protected by the patent. Anyone who is not the patent owner or
who is not licensed by the patent owner and who manufactures, uses, imports, offers for sale or sells the
patented invention is called an “infringer.” An infringer can be sued in court to force him to stop the
infringement and to pay the owner damages. Patents are “territorial;” they have effect only in countries where
they have been applied for and granted. Each country has the sovereign right to grant or refuse to grant patent
applications. In a few instances such as the European Patent Office (EPO), groups of nations have agreed by
treaty to provide for common examination of patent applications. Some countries have also agreed by treaty
to accept patents granted by other nations.

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Lesson 4 : Patents 3rd year (LMD)
One difference between copyrights and industrial property is that generally copyrights do not require
registration with a government authority as a condition for protection against unauthorized use. Industrial
property rights, on the other hand, must be expressly granted by, and registered with, a government authority
before they can be recognized and enforced. In theory, anyone can draft a patent or a trademark application
but in practice, professionals including lawyers (patent attorneys) and technical professionals called “patent
agents” or “patent engineers” write patent applications and file them with government authorities because
these applications can be technically and procedurally complex.

Intellectual property rights, namely patents, have been regarded by some as a reward that the society is
morally obligated to give to whoever introduces a new creation or invention. Although this conception is not
based on the pre-existence of rights, it considers the granting of such rights a moral imperative, regardless of
the economic and social implications of this grant. It shares with the natural rights theory a strong
individualistic bias.

Intellectual property protection has been extended in the last 25 years to a wide range of information,
materials and products relevant to food and agriculture. The US Supreme Court decision in Diamond v
Chakrabarty influenced national legislation and case law in many jurisdictions, opening the door for the
patentability of living organisms, including microbes, plants and animals and their parts and components. In
addition, the TRIPS Agreement and, more recently, a growing number of free trade agreements (FTAs)
promoted by the United States of America, European Free Trade Association (EFTA) and the EU have
propelled the expansion of intellectual property protection to biological materials, particularly plants. Since
1995, 40 countries have adhered to the UPOV Convention for the Protection of New Varieties of Plants,
which until then had had a membership essentially limited to developed countries. The extension of IPRs to
agricultural inputs and products raises a number of ethical concerns.

Intellectual Property Rights system (IPRs) is considered from economic and legal aspect as the
ownership rights for the excessive use of innovation and creative work. IPRs are measured to encourage
innovation, promote investment in Science &Technology and make the technologies for public benefit. But
history shows that from the time of industrial revolution in Europe and during twentieth century in the North
America and Japan, IPRs contribute to the S&T driven economic growth. Therefore, there is a fair and
consistent relationship between strength of IPRs and per capital income.

The concept of food patenting is a relatively new phenomenon. Patents cover a broad range of areas
within the food sector; everything from the composition of the food itself, to the actual process of making the
food. It is possible to patent new ingredients, new products, packaging, processing methods and novel
applications. Innovation in the food technology often results in new ingredients and products which may be
patented. A food business should seek to register a patent in circumstances where, for example, the
packaging features provide storage advantages, or improves delivery to the consumer in a novel fashion and
involves an inventive step in the process. Likewise, patents are useful if the production method for creating
food is unique as this creates difficulties for competitors trying to imitate one’s product. Currently, patents
are becoming more and more common to protect biotechnology innovation, particularly in the field of
agricultural biotechnology research and development. Patents in this field ensure inventions, and ideas are
protected long term so the original inventor has the opportunity to recoup the initial financial investments.

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Lesson 4 : Patents 3rd year (LMD)
Certain things of an abstract nature are excluded from patent protection. For example, in most
countries, pure methods of doing business are not patentable, although may be so if there is a technical
aspect. Contrary to popular belief however, many types of computer software may be patented.

Patents are restricted to the country for which they were granted. They cannot therefore stop others
from using the patented invention in other countries where the owner does not have patents. They can
however normally be used to stop imports into the country where the patent is held.

Patents are not awarded automatically. They must be applied for and will only be granted if the Patent
Office Examiner considers that the application meets all of the necessary requirements. The patent
application is a vitally important legal document as it will determine the eventual scope of protection
afforded by the patent (assuming one is granted). Furthermore there are strict rules which govern the changes
that may be made after filing and thus it may not be possible to rectify mistakes or omissions later. Thus,
although it is not a legal requirement, it is always advisable that patent applications are prepared by a
properly qualified Patent Attorney.

Renewal fees must be paid annually to maintain a patent in force. The maximum term of a patent is 20
years from the date of filing. Also, products made in accordance with a patent should be marked with the
patent number on the packaging or product. This puts others on notice and may also help when seeking
compensation from an infringing party.

Developing countries participate in global intellectual property systems as 'second comers' in a world
that has been shaped by the 'first comers'. They are now being urged to adopt a complex set of rules more
suited to advanced economy is a major ethical concern. Developing countries are the late comer in the world
economy are also disadvantaged bearing disappropriate share of cost with respect to the benefit is an another
concern. IPRs, as a whole is less advantageous for developing than for developed countries in many areas of
importance to development, such as health, agriculture, education and information technologies. The system
increases the costs of access to many products and technologies that developing countries need.

References

1. Hossain, A. & Lasker, S.P.(2010). Intellectual Property Rights and Developing Countries.
Bangladesh Journal of Bioethics 1(3), pp. 43-46
2. WIPO. Patent Drafting Manual. IP Assets Management Series
3. WIPO. (2015). Use of patents in the agrofood sector: source of information and instrument for
innovation
4. WIBM. The Protection of Intellectual Property Rights in the Euromediterranean Area:Focus on the
Agro-Food Sector

Questions

1. What to call someone who applies for a patent ?

2. What does the concept ‘patentability’ refer to ?
3. What does the concept ‘applicability’ in patenting mean ?

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Lesson 4 : Patents 3rd year (LMD)
Tasks

1. Give examples of well-known, Industrial designs, trademarks, service marks copyrights.

2. Name the international organizations that are designed for giving patents, and name national
organizations in Algeria responsible for designing local patents.
3. What is the first counrty who got most of international patents, and the first country in getting
national patents ?
4. In which areas is there innovation in agrifood for Algeria and what type of innovation?
5. Give an example of a patent application (the format)

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