Soft Intellectual Property (Soft IP) refers to copyrights, trademarks, and a proposed system of licensing patents to innocent infringers. Intellectual property rights are classified as soft or hard rights. Soft rights refer to copyrights, trademarks, and other conceptual rights, while hard rights refer to patents on inventions. Soft IP can also refer to a patent licensing system, allowing an innocent infringer to obtain a license instead of going out of business. Germany and the UK allow the innocent infringer to obtain a license in law, now known as soft IP, from the patent holder.
Soft Intellectual Property (Soft IP) can refer to copyrights and trademarks or to a proposed system of licensing patents to innocent infringers. Intellectual property rights are often classified as soft rights or hard rights. Soft rights refer to rights conferred by copyright, trademark, and other conceptual rights attached to works of art. Real rights are those conferred by patents on inventions.
Intellectual property is an intangible right that gives the creator of a work the exclusive ability to profit from his creation for a specific period of time. Instead of owning a tangible asset, such as a home or office building, the creator of a work owns a copyright, trademark, or patent that can protect an asset that is not tangibly fixed. Obtaining a copyright or trademark is a relatively straightforward process in most jurisdictions.
The European Patent Office (EPO) adopted the term “soft IP” to refer to a patent licensing system, even though soft IP typically referred to all intellectual property except patents. As part of a report on recent developments in intellectual property, it assessed a patent licensing exception called “Licenses in Law” that is in effect in the UK and Germany. The EPO has substantially re-labelled this system, defining soft IP as the granting of this type of licence.
In practice, a company may accidentally infringe a person’s patent without realizing it. If the company’s product is already in production, it could be impractical or devastating for the company to remove the counterfeit piece or compensate the patent holder for past sales. The company may have invented this parallel technology without ever knowing about the existing patent, but since the patent is registered, the company would have to stop using the invention without a license. In this case, the company is an innocent infringer and the soft IP allows them to obtain a valid license instead of going out of business due to the mistake.
Germany and the UK allow the innocent infringer to obtain a license in law, now known as soft IP, from the patent holder. If the patent owner agrees, the intellectual property offices in these countries designate the patent as available under fair terms to be agreed between the patent owner and the person who is to use the invention. This process preserves the patent owner’s rights, as licensing is not mandatory or “difficult”. Other countries are considering adopting the soft IP system.
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