1.8.1 - Immaterial objects

Object. Characteristic for IP-rights is that the protected achievement – although intangible – needs to materialize in the form of a “concrete immaterial object” that can be demarcated from the public domain. The nature of that object may be ‘ungraspable’ and hard to ‘pin down’ but a clearly identifiable and concrete object is required.

Patent document. For patents, that identification is made in the patent document by providing a description of the invention and – if possible –  drawings to illustrate what the described invention is and ultimately one or more claims that actually describe the invention. In that way the patented invention is reduced to a specific immaterial object and demarcated. The patent in this document is disclosed to the public and can be found in publicly available patent registers.

IP registers. For some other IP-rights, a similar manner of identification of the protected immaterial object is available in the form of a registration requirement. Contrary to patents, such registrations do not contain a description as such but – simply put – contain the actual wording of a claimed wordmark or an image of the claimed trade mark or design.

Demarcated object. For those IP-rights that do not require registration or are not recorded in registers – such as copyright, neighbouring rights and database rights – protection nevertheless requires that there is a concrete immaterial object that can be identified and demarcated from the ‘state of the art’ in the form the cultural heritage as it existed before the protected immaterial object was created. What that specific object entails – what it actually is – cannot be found in  a register. That does not take away from the fact a concrete immaterial object has to be identifiable, such as a copyrighted work, a specific database a phonogram, film or performance (as further defined in the applicable legislation), in order for that object to enjoy IP protection. The obvious disadvantage of the absence of a register is that a person claiming a particular IP-right and the protection thereof as well as the person being confronted with such a claim may encounter evidential problems. For that reason, for the establishment of evidence, it is good to somehow document the claimed object and the relevant evidential details, like date of creation, even though the existence of such documentation is not a requirement for the existence of these IP-rights.