Home /

Intellectual Property Gaining Protection in the Muslim World

By Noera Ayaz, Esq.* Posted Mar 2, 2006

Intellectual property (IP) is currently the subject of much attention in the business world.  The recent ongoing patent infringement case involving Research in Motion (RIM), the makers of the Blackberry mobile e-mail device, is one example of the impact that IP can have on businesses worldwide. In the worst-case scenario, the highly successful Canadian RIM may be forced to shut down its wildly popular and highly profitable Blackberry service because, under United States patent law, it violates the IP rights of NTP, a patent-holding company based in Virginia.

Noera Ayaz, Esq.,

As the RIM case illustrates, the stakes are certainly high. Although IP laws are generally restricted by jurisdiction, in the present era of globalization it is becoming increasingly important for companies from the Muslim world with global ambitions to seriously consider IP laws as part of their growth and asset protection strategies.

Patents - Enabler of Innovation & Entrepreneurship

Most major corporations take advantage of the Patent Cooperation Treaty (PCT) when formulating their patent strategies. The World Intellectual Property Office (WIPO) administers the PCT (www.wipo.org). PCT practice allows an inventor to file one patent application and designate numerous PCT member countries with that one application.

World Intellectual Property Organization Free WIPO Downloads (PDF) What is Intellectual Property? (773 kb) Basic Facts About PCT (95 kb) Patents and the Intellectual Creation Cycle (64 kb) Corporate Patent Strategy (120 kb)

This is much less expensive and logistically much easier than having to file in all of those countries separately and simultaneously. However, even under the PCT, patent applicants must meet the requirements of each individual country’s patent laws. There is no standard set of rules that are applied to patent applications. Each country has its own definitions and procedures for granting patents.

In the United States, a patent is a grant by the Government to an inventor of a right to exclude others from making, using, offering for sale, selling or importing the invention. There are three types of patents – utility patents, design patents and plant patents. Utility patents are granted for new and useful products, machines, and processes. Design patents cover new and original designs for articles of manufacture. Plant patents cover newly discovered or invented plant varieties.

In contrast to trade secrets and trademarks, patents have a limited lifespan. In the United States, utility patents, the most common types of patents, are valid for 20 years from the date of filing. After a patent expires, its contents are dedicated to the public. Patent owners can license or sell their patented inventions while their patents are alive in order to reap the rewards of their innovation.

Patent trends in the Muslim World

Several OIC (Organization of Islamic Conference) member countries, including Indonesia, Turkey, and the United Arab Emirates, are signatories to the PCT. As one indicator of innovation levels, the accompanying table provides statistics on the number of issued United States patents that originated in OIC countries between 1977 and December 2004 (www.uspto.gov).

Leading the list is Malaysia, which has been granted 547 United States patents. Other significant innovators on the list are Saudi Arabia, Indonesia, Turkey, Kuwait, and Egypt.  Japan, with 574,865 granted patents, ranks ahead of all other countries. The total number of patents issued from all over the world during the same time period is 3,101,719. This compares to a total of only 1542 from all OIC countries during the same period translating to a mere 0.05% share of the global number of US patents.

The Indonesian Directorate General of Intellectual Property (www.dgip.go.id) keeps several extensive databases on the status of IP in Indonesia. From 1991 to September 2005 there have been 49,430 patents registered in Indonesia.

Trademarks

Trademarks can be any combination of words, phrases, symbols, or designs that identifies and distinguishes the source of goods or services of one party from the goods of other parties. Trade dress, or the packaging of a production, can also be protected under trademark laws.

For example, one of the DS100 companies, Emirates has a registered United States trademarks for both its English name and the Arabic name al-emarat written in the red Arabic script. Another DS100 company, Indomie, also had a United States trademark for its goods.

Terms that are generic, such as “water” for bottled water, cannot be used as trademarks. Trademarks in the United States have an initial term of 10 years, but can be renewed indefinitely so long as the mark continues to be in use.

WIPO administers the international filing system for trademarks under the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol treaties.

In Indonesia, a total of 292,499 trademarks were registered in that country between 1990 and 2004.

Copyrights

Copyrights provide protection to authors of original works. These works can be literary works, musical works, works of art, dramatic works, motion pictures, or sound recordings. Computer programs are also the subject of copyrights, but the protection does not extend to the novel ideas or concepts embodied by the source code. Copyright can be protected once it is written; no registration is necessary.

The International Federation of the Phonographic Industry (IFPI) studies, one in every three music discs is illegal. The IFPI list of the top ten violators of copyright laws includes two OIC countries. The IFPI reports, at www.ifpi.org, the following:

Indonesia: piracy has steadily increased over the past few years to a level of 80%. Indonesia has at least 15 optical disc plants where control is urgently needed as the pirate product is often exported.

Pakistan: has a piracy level of 59% and is one of the world's largest exporters of pirate discs, with at least 230 million pirate discs estimated to have been exported in 2004.

In contrast, Saudi Arabia recently announced that it would be strictly enforcing its new copyright laws and would fine copyright violators up to SR 500,000. The government could potentially shut down companies that are violating the copyright laws for up to four months or even permanently. The government estimates that copyright violations cost the country approximately SR 500 million per year (www.arabnews.com, Feb. 18, 2006).

Trade Secrets

One other type of IP that companies may want to protect is trade secrets. In very general terms a trade secret is valuable information such as a formula, compilation, technique or method whose value is derived from the fact that it is not publicly known and that is subject to reasonable efforts to maintain its secrecy. Trade secrets give their owners a competitive advantage in their particular industry or field of business. Trade secrets are not registered because doing so would reveal the secret.

Trade secrets disputes often arise following business dealings between two companies who have signed a non-disclosure agreement (NDA) so that one company can share its confidential information with the other. At some point in the future the company that disclosed its information pursuant to the NDA discovers that the recipient of the information has improperly used it to develop their own products, despite its promise not to. Another common scenario is that of a former employee using his/her former employer’s proprietary customer lists, which are trade secrets, in an attempt to bring those customers to the new employer.

A major advantage that trade secrets have is that their duration is potentially unlimited. If a company keeps the secret under lock-and-key, the trade secret can last indefinitely. One consideration that companies may have to make is whether the trade secret can be reverse-engineered. If so, seeking patent protection may be better route to take because the secret will not remain so for long.

Final Remarks

For many people, the RIM case has really brought IP to another level. With such a widely-used device facing possible shut down, many in the business world are waking up to the realities of current IP laws. There has never been a sense of more urgency for international companies to leverage their own IP and be aware of the IP in whatever field of business they practice.

As evidenced by the statistics, the OIC countries have some catching-up to do. However the statistics and recent news also show that OIC member countries have begun to utilize the various types of IP protection available to them worldwide and also to offer IP protection to those operating in their countries.

------------------------------------------------------------

* Author: Ms. Noera Ayaz, Esq. is an associate in the New York City office of an international law firm. Her practice focuses on matters that fall within the intellectual property sphere, including patent litigation, prosecution, and opinion drafting.  Ms. Ayaz received her J.D. from Columbia Law School and her B.S. in engineering from Brown University. 

The views expressed here are the opinions and observations of the guest author and the positions taken by the author does not constitute an endorsement by Dinar Standard.

Key Learnings: Patents, trademarks, copyright and trade secrets are the key IP protections tools Individual countries maintain their own specific requirements for both patents and trademarks, and applicants seeking international protection can take advantage of the PCT and Madrid Protocol treaties Malaysia, Saudi Arabia, and Turkey lead the list of OIC countries with most number of patents filed in the key global market of the US

Your Feedback

Excellent, Concrete and useful Feature. Thanks a lot. Waiting for some more useful write ups.

J. Zaman, Brand Manager
Bangladesh