Intellectual Property Law — Australia — Tutorial 5 Essay Example
Intellectual Property Law
1. Before Pat is able to put ‘Baby Face’ on the market, Ever Young comes to you for advice on any action it can take in relation to the product.
Pat signed an employment agreement requiring him as an employee to assign to the company all ownership rights to any inventions he makes during the course of his employment. As the employee of Ever Young, Pat must assign the invention to his employer since he has a specific contractual obligation as he was hired by Ever Young to conduct research aimed at discovering and developing new anti-ageing products. Additionally, the invention was made using the employer’s resources and on company time. Therefore, I would advise Ever Young to file a lawsuit against Pat for breach of the employment contract.
However, the court processes may be lengthy while, at the same time, the cost of litigation is usually very high. Not only is litigation expensive, it will continually drain the company’s cash flow for as long as the lawsuit exists, and it is also very public.
Thus, I would advise the company to avoid filing a lawsuit first and explore a less public and less costly alternative of resolving the dispute. The issues may be better addressed using alternative dispute resolution (ADR) processes such as arbitration or mediation. Since the discovery is quite a competitive trade secret, ADR will allow for confidentiality of the information as opposed to litigation once the trial begins. Having this issue discussed in court, in front of competitors who are eager to learn about competitors’ business is not the best way to handle the situation. Since mediation and arbitration do not take place in public, confidentiality will not be an issue. Likewise, due to the informality and flexibility of these processes compared to litigation, the company will be able to save a lot of time.
Through these processes, Ever Young can establish avenues to dialogue with Pat and come up with acceptable business solutions for both parties. They will achieve this through negotiations, compromise, and creative problem solving. The business solutions can include alternative arrangements such as cross-licensing and joint development of new and improved products.
2. Pat wishes to apply for a patent for ‘Baby Face,’ Provide Pat with preliminary advice on whether he is able to obtain a patent.
The product having the anti-ageing properties is already in existence, and it does not fulfill the criteria to be considered patentable. To be able to obtain a patent, one must be the original inventor of the product and the product must be the first of its kind in the world (WIPO, 2004). However, it is possible to obtain a patent for the improvement of an existing invention. Since ‘Baby Face’ is composed of a completely unique combination of ingredients,-considering the product in question, has never been used for this purpose- Pat can patent it. Pat should also consider making product changes in the formulation of ‘Baby Face’ to minimize or eliminate any potential dispute. Alternatively, if the product is still patented, he can make an agreement with the inventors of the compound for him to be granted a license in order to manufacture and market the product. Novelty aside, Pat’s product fulfills the other criteria required for him to obtain a patent. This criteria includes utility of the product and non-obviousness (WIPO, 2004).
Geneva: WIPO. 2004. Web. 6 WIPO Intellectual Property Handbook: Policy, Law and Use.
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