c





c



 (c) is a term referring to a number of distinct types of creations of the
mind for which property rights are recognized²and the corresponding fields of law.[1] Under
intellectual property law, owners are granted certain exclusive rights to a variety of intangible
assets, such as musical, literary, and artistic works; discoveries and inventions; and words,
phrases, symbols, and designs. Common types of intellectual property include copyrights,
trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

Although many of the legal principles governing intellectual property have evolved over
centuries, it was not until the 19th century that the term Ô



 began to be used,
and not until the late 20th century that it became commonplace in the United States.[2] The
British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origin of
copyright and patent law respectively.[3]

Ñ



This article or section may contain  

 








 



 









 

 
 See the talk page for
details. ÷
  
Main articles: History of patent law and History of copyright law

Modern usage of the term Ô




 goes back at least as far as 1888 with the
founding in Bern of the Swiss Federal Office for Intellectual Property (the   

 Ô
Ô

). When the administrative secretariats established by the Paris
Convention (1883) and the Berne Convention (1886) merged in 1893, they also located in Berne,
and also adopted the term intellectual property in their new combined title, the United
International Bureaux for the Protection of Intellectual Property. The organisation subsequently
relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World
Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations.
According to Lemley, it was only at this point that the term really began to be used in the United
States (which had not been a party to the Berne Convention),[2] and it did not enter popular usage
until passage of the Bayh-Dole Act in 1980.[4]

"The history of patents does not begin with inventions, but rather with royal grants by Queen
Elizabeth I (1558-1603) for monopoly privileges... Approximately 200 years after the end of
Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providing
for exclusive control over the production and sale of his mechanical or scientific invention...
[demonstrating] the evolution of patents from royal prerogative to common-law doctrine." [5]
In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued
against the recently introduced idea of "property which has been called intellectual."[6] The term
Ô



 can be found used in an October 1845 Massachusetts Circuit Court ruling in
the patent case 


 , in which Justice Charles L. Woodbury wrote that "only in
this way can we protect intellectual property, the labors of the mind, productions and interests
are as much a man's own...as the wheat he cultivates, or the flocks he rears." (

 
!
"# $%&!$ 
'' (
)
&!  )
* ++). The
statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791
stated, "All new discoveries are the property of the author; to assure the inventor the property
and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or
fifteen years."[7] In Europe, French author A. Nion mentioned 
 Ô
Ô

 in his

Ô
!ÔÔ!!
 ! 
Ô!
!
Ô 
 !, published in 1846.

The concept's origins can potentially be traced back further. Jewish law includes several
considerations whose effects are similar to those of modern intellectual property laws, though the
notion of intellectual creations as property does not seem to exist ± notably the principle of
Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author)
copyright in the 16th century.[8] The Talmud contains the prohibitions against certain mental
crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at (ʺʲʣ ʺʡʩ ʰ ʢ , literally
"mind theft"), which some have interpreted[9] as prohibiting theft of ideas, though the doctrine is
principally concerned with fraud and deception, not property.





    


These exclusive rights allow owners of intellectual property to benefit from the property they
have created, providing a financial incentive for the creation of and investment in intellectual
property, and, in case of patents, pay associated research and development costs.[10] Some
commentators, such as David Levine and Michele Boldrin, dispute this justification.[11]




 



The existence of IP laws is credited with significant contributions toward economic growth.[Ô

Ô

]
Economists estimate that two-thirds of the value of large businesses in the U.S. can be
traced to intangible assets.[Ô

Ô
 ] "IP-intensive industries" are estimated to generate 72
percent more value added (price minus material cost) per employee than "non-IP-intensive
industries".[12][Ô
!,Ô!!!]

A joint research project of the WIPO and the United Nations University measuring the impact of
IP systems on six Asian countries found "a positive correlation between the strengthening of the
IP system and subsequent economic growth." [13] Other models, such as the Nash equilibrium,
would not expect that this correlation necessarily means causation: The Nash equilibrium model
predicts that patent holders will prefer to operate in countries with stronger IP laws.[ 
Ô
Ô!
Ô!
]
In some of the cases, as was shown for Taiwan[14] after the 1986 reform, the economic
growth that comes with a stronger IP system might be due to an increase in stock capital from
direct foreign investment.

°


Main article: Criticism of intellectual property


 



Richard Stallman argues that, although the term Ô




 is in wide use, it should be
rejected altogether, because it "systematically distorts and confuses these issues, and its use was
and is promoted by those who gain from this confusion." He claims that the term "operates as a
catch-all to lump together disparate laws [which] originated separately, evolved differently,
cover different activities, have different rules, and raise different public policy issues" and that it
confuses these monopolies with ownership of limited physical things[15] Stallman advocates
referring to copyrights, patents and trademarks in the singular and warns against abstracting
disparate laws into a collective term.




Some critics of intellectual property, such as those in the free culture movement, point at
intellectual monopolies as harming health, preventing progress, and benefiting concentrated
interests to the detriment of the masses,[16][17] and argue that the public interest is harmed by ever
expansive monopolies in the form of copyright extensions, software patents and business method
patents.

There is also criticism[-

.] because strict intellectual property rights can inhibit the flow of
innovations to poor nations. Developing countries have benefitted from the spread of developed
country technologies, such as the internet, mobile phone, vaccines, and high-yielding grains.
Many intellectual property rights, such as patent laws, arguably go too far in protecting those
who produce innovations at the expense of those who use them.[Ô

Ô
 ] The Commitment to
Development Index measures donor government policies and ranks them on the "friendliness" of
their intellectual property rights to the developing world.

Some libertarian critics of intellectual property have argued that allowing property rights in ideas
and information creates artificial scarcity and infringes on the right to own tangible property.
Stephan Kinsella uses the following scenario to argue this point:

[I]magine the time when men lived in caves. One bright guy²let's call him Galt-Magnon²
decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and
others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins.
But the first man to invent a house, according to IP advocates, would have a right to prevent
others from building houses on their own land, with their own logs, or to charge them a fee if
they do build houses. It is plain that the innovator in these examples becomes a partial owner of
the tangible property (e.g., land and logs) of others, due not to first occupation and use of that
property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies
in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very
homesteading rule that is at the foundation of all property rights.[18]

Other criticism of intellectual property law concerns the tendency of the protections of
intellectual property to expand, both in duration and in scope. The trend has been toward longer
copyright protection[19] (raising fears that it may some day be eternal).[20][21][22][23] In addition, the
developers and controllers of items of intellectual property have sought to bring more items
under the protection. Patents have been granted for living organisms,[24] and colors have been
trademarked.[25] Because they are systems of government-granted monopolies copyrights,
patents, and trademarks are called intellectual monopoly privileges, (IMP) a topic on which
several academics, including Birgitte Andersen[26] and Thomas Alured Faunce[27] have written.

In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy
statement to frame how governments should make balanced intellectual property law.

m  

›? Krattiger et al 2007 "Intellectual Property Management in Health and Agricultural
Innovation: A Handbook of Best Practices", Managing Innovation for a Better World
›? Arai, Hisamitsu. "Intellectual Property Policies for the Twenty-First Century: The
Japanese Experience in Wealth Creation", WIPO Publication Number 834 (E). 2000. [1]
›? Boldrin, Michele and David K. Levine. "Against Intellectual Monopoly", 2008. [2]
›? Hahn, Robert W., *

)

(Ô/-
!Ô %

Ô * !
Ô!01

  
Ô

-

/, AEI Press, March 2005.
›? Branstetter, Lee, Raymond Fishman and C. Fritz Foley. "Do Stronger Intellectual
Property Rights Increase International Technology Transfer? Empirical Evidence from
US Firm-Level Data". NBER Working Paper 11516. July 2005. [3]
›? Connell, Shaun. "Intellectual Ownership". October 2007. [4]
›? Farah, Paolo and Cima, Elena. "China¶s Participation in the World Trade Organization:
Trade in Goods, Services, Intellectual Property Rights and Transparency Issues" in
Aurelio Lopez-Tarruella Martinez (ed.), El comercio con China. Oportunidades
empresariales, incertidumbres jurídicas, Tirant lo Blanch, Valencia (Spain) 2010, pp. 85-
121. ISBN: 978-84-8456-981-7. Available at SSRN: http://ssrn.com/abstract=1527992
›? Gowers, Andrew. "Gowers Review of Intellectual Property". Her Majesty's Treasury,
November 2006. [5] ISBN 9-780118-4083-9.
›? Kinsella, Stephan. "Against Intellectual Property". #
 
"Ô
 Ô 1
Ô! 15.2
(Spring 2001): 1-53. [6]
›? Lai, Edwin. "The Economics of Intellectual Property Protection in the Global Economy".
Princeton University. April 2001. [7]
›? Lee, Richmond. 1
 *
 
*)(Ô/-
! ACCRALAW offices.
›? Lessig, Lawrence. "Free Culture: How Big Media Uses Technology and the Law to Lock
Down Culture and Control Creativity". New York: Penguin Press, 2004. [8].
›? Lindberg, Van. *

)

 2 1
 03) 
Ô4Ô

)


Ô /
&
. O'Reilly Books, 2008. ISBN 0-596-51796-3 | ISBN 9780596517960
 ›? Maskus, Keith E. "Intellectual Property Rights and Economic Development". &!
!
 (! #
 
*
 
Ô
", Vol. 32, 471. journals/jil/32-
3/maskusarticle.pdf
›? Mazzone, Jason. "Copyfraud". Brooklyn Law School, Legal Studies Paper No. 40. 
5
67 Ô !Ô
"(Ô 81 (2006): 1026. (Abstract.)
›? Miller, Arthur Raphael, and Michael H. Davis. *

)

0)

! 
8   6!  &
 Ô/-
. 3rd ed. New York: West/Wadsworth, 2000. ISBN 0-314-
23519-1.
›? Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550-
1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001
›? Rozanski, Felix. "Developing Countries and Pharmaceutical Intellectual Property Rights:
Myths and Reality" [9]
›? Perelman, Michael. 1
8-Ô!*0*

)

 8-&



&
Ô!
Ô

& 
ÔÔ
. Palgrave Macmillan, 2004.
›? Rand, Ayn. "Patents and Copyrights" in Ayn Rand, ed. 'Capitalism: The Unknown Ideal,'
New York: New American Library, 1966, pp. 126±128
›? Reisman, George. 'Capitalism: A Complete & Integrated Understanding of the Nature &
Value of Human Economic Life,'] Ottawa, Illinois: 1996, pp. 388±389
›? Schechter, Roger E., and John R. Thomas. *

)

08-"
&
 Ô/-
! 
)

! 8   6!. New York: West/Wadsworth, 2003, ISBN 0-314-06599-7.
›? Schneider, Patricia H. "International Trade, Economic Growth and Intellectual Property
Rights: A Panel Data Study of Developed and Developing Countries". July 2004. [10]
›? Shapiro, Robert and Nam Pham. "Economic Effects of Intellectual Property-Intensive
Manufacturing in the United States". July 2007. [11]
›? Vaidhyanathan, Siva. 8-3  -Ô!
Ô 
-"Ô  09

-&!-
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*!96Ô /
-(
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-1!
 . New York: Basic
Books, 2004.
›? Burk, Dan L. and Mark A. Lemley (2009). 8-)

& Ô!Ô! 9

-&

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*
. University of Chicago Press. ISBN 9780226080611.

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IPR IN THE
ABOUT IPR
FOUNDERS PRESS

IPR in the Press

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"Even its rivals say ...
The countries and peoples of the Middle East Info-Prod can tell clients
represent a vast market with immense potential, yet everything"
for most businesses lack of data makes the region
virtually uncharted territory. Info Prod Research is 


dedicated to providing decision makers with 
 , November 9,
accurate, comprehensive, and reliable information 1993.
on the Middle East.

Our activities include running coverage and in-depth

analysis of the many countries and markets in the
region. Info-prod specializes in market research,
matching-up businesses, and investment in the
Middle East marketplace. Info-prod offers assistance
in the strategic and tactical
planning of campaigns aimed at
the Middle East market, including
market analysis, pricing,
advertising, choosing distributors,
logistics, legislation and regulations. Info-prod has
been responsible for establishing
many of the existing joint ventures
in the region.
Info-prod provides its regular
clients with a telephone
consultancy service, as well as the
regular ME Business Watch and multilingual
newsletter services. Info-prod supplies, on a daily
basis, timely commercial information to leading
world online service providers such as Reuters,
Lexis-Nexis, Dialog, FT Profile, Genios and
Information Access Corp. (IAC). Its data is also
available on CD ROM.

ADVANTAGES
Info-Prod's success results from the accuracy and
authenticity of its information, the professional
caliber of its staff, and the efficient and dynamic
nature of its activities. Its findings are extensively
quoted by leading business and financial
publications in the world, including the Wall Street
journal, Business Week, Reuters, Bloomberg, Le
Monde Diplomatique, and the Arab press.

AFFILIATES
Info-Prod maintains a regional branch office in
Amman, Jordan, in association with the Century
Group. The Century Group, a conglomerate of joint
ventures ranging from software to sand mining, has
been a trailblazer in developing commercial ties
between Jordan and multinationals - such as Sarah
Lee Corp., and Motorola Inc. Info-Prod also
maintains two branch offices in the USA and the
UK.

c 



 

Long before the Israel-Palestinian and Israel- Jordan peace accords,
when regional business and economic co-operation was a far fetched
prospect rather then a workable concept, Info-Prod was established by
the industrialist Mr. Muzi Wertheim, president of Coca-Cola Israel, and
Dr. Gil Feiler, lecturer in Middle East economics.
  !c
mÑc"
# 

Mr. Wertheim,
one of Israel's
leading
industrialists,
participated in establishing
Coca-Cola Israel. He was
appointed Managing Director of
Coca Cola Israel in 1973, and
Company President in 1980. He
established a Carlsberg Brewery
in Ashkelon under the auspices
of Coca-Cola. Mr. Wertheim is
the principal shareholder in
Bank Hamizrahi. He has served
as President of the Israel-
American Chamber of
Commerce, the Chairman of the
International Trade Commission
of the Israeli Government, a
member of the Board of
Directors of Israel Chemicals,
and has filled public posts in the
government service as well as in
the Israeli Manufacturers'
Association.
Mr. Wertheim is known for his
innovative marketing concepts
and the introduction of
commercial television.
Recently, he has also entered
into the areas of construction
and real estate. Mr. Wertheim
holds degrees in Law and
Business Management from the
Hebrew University, Jerusalem.
# $c%
c%m"
  
# 

Dr. Gil Feiler is
a senior lecturer
at the
Interdisciplinary Center
Herzeliya and Director of its
Middle East Business and
Economic Research Institute. He
has studied in Israel, Egypt, and
Germany and his doctorate was
devoted to economic relations in
the Middle East. Dr. Feiler
currently lectures world wide on
economic and commercial
activities in the Middle East, and
has published extensively on the
subject. Leading business news
services and magazines, from
the West and from Arab
countries, regularly quote Dr.
Feiler on economic activities
and trends in the region.
Dr Feiler is a Director of the
Dikla Mutual Fund for The First
International Bank of Israel, a
Trustee of the Israel/Palestine
Center for Research and
Information, and a Senior
Research Associate at the Harry
S. Truman Research Institute for
the Advancement of Peace, the
Hebrew University of
Jerusalem.
The author of ten books and
monographs on Middle East
labor migration, economic
cooperation and business
opportunities, Dr Feiler has
written numerous articles and is
a frequent lecturer on Middle
Eastern economic and business
affairs.
Answering questions about IPR claims,
counterclaims
A strong patent portfolio will often include multiple patents that cover different aspects of a
single product or manufacturing process.

Likewise, a competitor's infringing business activities will often involve practicing inventions
claimed by different patents.

While enforcing the rights conferred by a patent portfolio against such competitors is often
considered the most important manner in which a company can protect its intellectual property
rights, many business disputes also touch upon valuable intellectual property rights that exist in
the form of unpatented trade secrets, as well as other claims that exist by reason of the prior
relationships between the parties.

However, a company seeking to protect its rights against a competitor need not always choose
between suing solely for patent infringement, trade secret misappropriation or to enforce rights
arising from law or contract.

 
 

 

Where the facts support the assertion of a variety of claims, a plaintiff is well advised to consider
pursing all of its claims simultaneously.

In the appropriate circumstances, when a party could have included all of its claims in an earlier
proceeding, the decision to pursue only some of the claims might result in losing the ability to
file a subsequent lawsuit against the competitor on the remaining claims.

The potential loss of a claim, or theory upon which relief can be obtained, involves the doctrine
of "claim preclusion." This doctrine has the goal of avoiding piecemeal litigation.

Thus, when relief is sought through the courts in the United States, a subsequent lawsuit might
be barred where a prior lawsuit (1) involved the same parties or their privies, (2) involved the
same claim of cause of action as the later suit, and (3) was terminated by a final judgment on the
merits.


  
 

To determine whether the prior and current claims are the same, a court will consider a number
of factors.

For example, would the rights or interests established by the judgment in the prior lawsuit be
destroyed or impaired by prosecution of the second lawsuit?
Would substantially the same evidence be considered in the latter that was presented in the
former? Do the two suits involve the same transactional nucleus of facts?

If the court answers the foregoing questions in the affirmative, the second lawsuit might be
barred even if, for example, the first lawsuit sought relief for the improper use of a party's trade
secrets and the second suit focused on infringement of a published patent.

A similar result can occur when a plaintiff tries to pursue separate suits on different patents that
accuse the same products of the competitor.

While the elements of a claim for trade secret misappropriation and patent infringement protect
different aspects of a plaintiff's intellectual property rights, and the claims of different patents
speak to different inventive aspects of a particular technology, the concept of claim preclusion
(which protects a defendant against multiple and serial litigation) focuses on the conduct and not
the separate rights of the plaintiff.

°  

In deciding whether to apply claim preclusion to bar a subsequent suit, many courts will also
find significant whether the source of damages in both suits would be from the same "pool" of
money.

This outcome is illustrated by the situation where the defendant's same product is in issue in both
actions, the plaintiff has already recovered damages for lost profits based on product invoices,
and the second suit looks to the same product sales in order to calculate "additional" damages.

Having already received compensation from the pool, the courts will look to avoid an
opportunity for a double recovery by the plaintiff.

A defendant being sued for infringement faces a similar decision in formulating its responsive
strategy. It must consider the extent to which it should escalate the dispute and assert available
counter claims against the plaintiff.

In evaluating that option, in addition to considering the expense of broadening the lawsuit, the
defendant must consider the risk that the court in a subsequent proceeding will deem its claims to
have been "compulsory counter claims" that should have been asserted in the prior action, and
thus bar that defendant from asserting those claims.

The requirement that a defendant must file all compulsory counterclaims in the pending action or
thereafter be barred from raising those claims also reflects the policy of avoiding piecemeal
litigation between the same parties.

In general, a compulsory counter claim that a defendant must assert or lose is one that arose out
of the transaction or occurrence that is the subject matter of the opposing party's claim.

%
  


 
This determination considers whether the issues of law or fact are largely the same for both the
claim and counterclaim, whether the same evidence will support or refute both and whether there
is a logical relationship between the claim and the counterclaim.

For example, a declaration that a patent is invalid is a compulsory counterclaim in response to a

claim of infringement of that patent. Likewise, a party claiming that it is the correct inventor in
response to a claim of patent infringement must carefully consider the risk of failure to
affirmatively plead a claim for a correction of inventorship.

However, there are recognized exceptions to the compulsory counterclaim rule. Where the claim
against the plaintiff does not arise out of the same transaction or occurrence it may be (but is not
required to be) stated as a "permissive" counter claim.

These types of counterclaims are often considered as a means to place leverage on the plaintiff to
induce a more favorable business resolution to the litigation.

Thus, while defendants in patent infringement suits sometimes assert anti-trust claims against the
plaintiff despite an overlap in the factual and legal issues, the defendant has the choice of either
asserting such claims as counterclaims in the patent action or in a separate antitrust action.

Finally, an otherwise compulsory counterclaim need not be raised where the parties have
previously agreed to a forum selection clause in their agreement, which provides for a different
forum than the one in which the plaintiff filed suit.

Chris Scott Graham is managing partner, Silicon Valley, for the law firm Dechert LLP in
Mountain View, California

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