Intellectual Property Law Essay Example | Topics and Well Written Essays - 4000 words

Intellectual Property Law - Essay Example An understanding of the philosophical premises behind Property rights are necessary in the understanding of the tug of war between the owners and the users of intangible information.1 Legal Commentators have often expressed their doubts as to whether these rights are actually rights or privileges as Machlup and Penrose have noted:2 " ... those who started to use the word property in connection with inventions had a very definite purpose in mind they wanted to substitute a word with a respectable connotation, 'property', for a word that had an unpleasant ring, 'privilege'." Intellectual property as a "property" thus is an intangible category of property with boundaries that are not always clear cut and which must be actively defended by the holder against infringements. 3 Tangible property is however visible and documented, and the boundaries are more easily given than for intellectual property.4 The law has developed to protect a person who holds certain intellectual property will be able to defend this property only if he/she is granted a particular right over this property. For example in relation to patents the rights are defined by the patent authorities based on what is defined in the patent claims.Like other property (tangible) one has to pay certain fees in order to have their "intellectual" property claim examined and determined and also of continuance fees paid.5 The concept of property rights thus stems from the ideas of John Locke.6Furthermore the notions of property rights developed in the 18th century as one of the core civil rights parallel to-and mutually reinforcing-the right to liberty.7However, most philosophers have put forward the notion that property is not a natural right but rather a deliberate construction by society in order to secure protection against pressure from the collective.8 Subscribing to the view that property is justified as a foundation for liberty and personal security which provides incentives for long-term investments.Also that if these rights are not balanced or protected they will affect economic growth and poverty reduction.as unpredictable property relationships always impeded impede economic growth.9Revisiting the tangible and intangible discussion between property it can be seen that it has been argues that while tangible property rights easily cause conflict this is not the case with as the popular notion with in the case law is that "no patent can stop a person from continuing something he has done before"10.However the problem arises before the courts when the patent claims do not just include what is actually new and invented and this causes problems in identifying what is known and whether existing processes and products would infact infringe the patent.There is a marked certainity thus despite the legal framework with regard to which a ctivities are acceptable and which activities might infringe the patent. A granted patent right is considered to fall within the scope of "possessions" inArticle 1 of Protocol No. 1 to the European Convention on Human Rights andFundamental Freedoms. However, the European Court of Human Rights has declined to give an opinion on whether a patent application