Intellectual property law is notoriously complicated and is ripe for change, and a case that can be closed quickly can still have significant ramifications for a company’s business.
But there’s also a growing body of evidence that intellectual property can have serious economic consequences and can be used to shut down businesses.
What is IP?
The law covers a wide range of intangible assets that are created by a person or entity to carry out a specific purpose, such as making a payment, selling goods or services, or conducting a business.
IP is also referred to as intellectual property.
While there are laws governing many aspects of IP, a key area of dispute is whether an intellectual property is a “property” at all.
This is a technical term that means the intellectual property has to be created by someone and can’t be owned or controlled by a third party.
It’s a legal grey area, however, so it’s worth keeping in mind that there are plenty of people and organisations that claim ownership of IP.
This is where lawyers and academics work to try and determine whether an IP claim is valid, or whether it should be treated as a non-existent legal claim.
The basics of an IP disputeThe key point is that an intellectual asset can’t just be claimed to be “property”, but can also be “substantially similar” to an intellectual, such that the similarity would be “likely to create confusion or disincentive for the infringer to infringe” (see the definition of a ‘substantial similarity’ in the definition in the EU Directive on intellectual property).
This can be a very important distinction when it comes to IP cases.
While the EU directive does recognise that there is a clear line between “substantial similarities” and a claim of “property rights” (the right to control the use of an intellectual), it’s not clear whether the same rights apply to IP.
This has led to disputes over whether IP can be claimed as property, and whether the rights are “substantiated” enough to warrant the right to shut a business down.
What are the issues with IP cases?
An IP case is an ongoing legal dispute, with parties trying to resolve their differences and try to reach a resolution that protects both the rights of the parties and the interests of both sides.
It can be very expensive to litigate IP cases, and many companies will be unable to afford to fight IP cases that are costly for them.
However, the EU rules have come under fire in recent years, because they have been interpreted to create a presumption that an IP owner is entitled to a higher rate of compensation for intellectual property than a person.
In some cases, the courts have found that the presumption of the right of the owner to compensation is “reasonable” and not an infringement of copyright law.
This means that even though the European Commission has suggested that an individual IP owner could get an exemption from the EU-wide compensation rates, they will still be expected to pay the EU rates.
This has created some confusion in the industry.
Some companies are claiming that they are entitled to an exemption, but the actual position of the EU Commission is that it will not be available for IP owners.
The EU is also not clear what the rights for the owner are, so there’s no way to determine whether they are protected or not.
Another aspect of IP is the question of how much compensation an individual can get.
An individual may be able to get compensation for the use or other “use” of an intangible asset, but only for a “reasonable sum” and it has to include the costs of the intangible asset itself.
In the US, the US Supreme Court ruled in a recent case that an independent appraiser cannot be required to give an individual compensation based on the value of an object.
The US Supreme court also found that there was a “clear and present danger” that an appraiser would “be compelled to apply his own judgment in determining whether a product was a valuable article” in order to determine the value.
The European Commission is also looking into whether the “use-value” requirement should be lowered, or the threshold set at a value of $100 million set lower.
However this is only one of many issues that have been raised in the IP debate, and there’s a wide variety of opinions about what constitutes an “intangible” asset.
It may be useful to take a look at some of the key concepts to get an idea of what is actually at stake in an IP matter.
What rights does an IP rights claim protect?
There are two main types of rights an IP claims: rights that can’t legally be taken away by a court, and rights that cannot be taken back, either by a party or the other party.
The EU directive sets out what rights an individual has over a product or service, but this is usually limited to the right not to be held liable.
The rights that an owner has over IP are generally not enforceable against the owner by another party.
However there are some important exceptions
