Patent

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This article relates to the intellectual property right. A land grant is also called a patent. For the glossy leather, see patent leather.
Intellectual property law
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Sui generis rights
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A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable.

The exclusive right granted to a patentee in most countries is the right to prevent or exclude others from making, using, selling, offering to sell or importing the claimed invention. The rights given to the patentee do not include the right to make, use, or sell the invention themselves. The patentee may have to comply with other laws and regulations to make use of the claimed invention. So, for example, a pharmaceutical company may obtain a patent on a new drug but will be unable to market the drug without regulatory approval, or an inventor may patent an improvement to a particular type of laser, but be unable to make or sell the new design without a license from the owner of an earlier broader patent covering lasers of that type.

The term "patent" originates from the Latin word patere which means "to lay open" (i.e., make available for public inspection) and the term letters patent, which originally denoted royal decrees granting exclusive rights to certain individuals or businesses.

Contents

[edit] Law

[edit] Effects

The plate of the Martin ejector seat of the military aircraft, stating, that the design is covered by multiple patents in Britain, South Africa, Canada and "others". Dübendorf Museum of Military Aviation.
The plate of the Martin ejector seat of the military aircraft, stating, that the design is covered by multiple patents in Britain, South Africa, Canada and "others". Dübendorf Museum of Military Aviation.

Contrary to a common public misconception, a patent is not a right to practice or use the invention. Rather, a patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, usually 20 years from the filing date. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.

The rights conveyed by a patent vary country-by-country. For example, in the United States, a patent covers research, except "purely philosophical" inquiry. A U.S. patent is infringed by any "making" of the invention, even a making that goes toward development of a new invention - which may itself become subject of a patent. In contrast, Australian law permits others to build on top of a patented invention, by carving out exceptions from infringement for those who conduct research (e.g. for academic purposes) on the invention, or develop further inventions based on the patented invention.[1]

In order to obtain a patent, an applicant must provide a written description of his or her invention in sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention. This written description is provided in what is known as the patent specification, which often is accompanied by illustrating drawings. In addition, at the end of the specification, the applicant must provide one or more claims that define what the applicant regards as his or her invention. A claim, unlike the body of the specification, is a description designed to provide the public with notice of precisely what the patent owner has a right to exclude others from making, using, or selling. Claims are often analogized to a deed or other instrument that, in the context of real property, sets the metes and bounds of an owner's right to exclude. The claims define what a patent covers. A single patent may contain numerous claims, each of which is regarded as a distinct invention.

In order for a patent to be granted, that is to take legal effect, the patent application must meet the legal requirements related to patentability.

A patent is an exclusionary right. It gives the patent owner the right to exclude others from infringing the patent. That does not, however, necessarily give the owner of the patent the right to exploit the patent. For example, many inventions are improvements of prior inventions which may still be covered by someone else's patent. If an inventor takes an existing patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.

[edit] Enforcement

Patents can generally only be enforced through civil lawsuits (for example, for a US patent, by an action for patent infringement in a United States federal court), although some territories (such as France and Austria) have criminal penalties for wanton infringement.[2][3] Typically, the patent owner will seek monetary compensation for past infringement, and will seek an injunction prohibiting the defendant from engaging in future acts of infringement. In order to prove infringement, the patent owner must establish that the accused infringer practices all of the requirements of at least one of the claims of the patent (noting that in many jurisdictions the scope of the patent may not be limited to what is literally stated in the claims, for example due to the "doctrine of equivalents").

An important limitation on the ability of a patent owner to successfully assert his or her patent in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents invalid. The grounds on which a patent can be found invalid are set out in the relevant patent legislation and vary between countries. Often, the grounds are a sub-set of the requirements for patentability in the relevant country.

The vast majority of patent rights, however, are not determined through litigation, but are resolved privately through patent licensing. Patent licensing agreements are effectively contracts in which the patent owner (the licensor) agrees not to sue the licensee for infringement of the licensor's patent rights, usually in return for a royalty or other payment. It is not uncommon for companies engaged in complex technical fields to enter into dozens of license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to gain access to each other's patents. A cross license agreement could be highly desirable to the mouse trap developers discussed above, for example, because it would permit both parties to profit off each other's inventions.

[edit] Ownership

In most countries, both natural persons and corporate entities may apply for a patent. The entity or entities then become the owners of the patent when and if it issues.

In the United States, however, only the natural person(s) (i.e. the inventor(s)) may apply for a patent. If a patent issues, then each person listed as an inventor owns the patent separately from the other. For example, if two inventors are listed on a patent, then each one may grant licenses to the patent independently of the other, absent an agreement to the contrary.

It is common in the United States for inventors to assign their ownership rights to a corporate entity.[4] Inventors that work for a corporation, for example, often are required to assign their ownership rights to their corporation as a condition of their employment. Independent inventors often assign their ownership rights to a single entity so that only one entity has the right to grant a license.

The ability to assign ownership rights increases the liquidity of a patent as property. Inventors can obtain patents and then sell them to third parties. The third parties then own the patents as if they had originally made the inventions themselves.

[edit] Governing laws

Patent law
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The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are, therefore, territorial in nature.

Commonly, a nation forms a patent office with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts.

There is a trend towards global harmonization of patent laws, with the WTO being particularly active in this area. The TRIPs Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPs agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

A highly notable international convention related to patents is the Paris Convention for the Protection of Industrial Property which was initially agreed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The most significant aspect of the convention is the provision of the right to claim priority: filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Because the right to a patent is intensely date-driven, this right is fundamental to modern patent usage.

The authority for patent statutes in different countries varies. In the United States, the Constitution empowers Congress to make laws to "promote the Progress of Science and useful Arts..." The laws Congress passed are codified in title 35 of the United States Code and created the United States Patent and Trademark Office.[5] In the UK, substantive patent law is contained in the Patents Act 1977 as amended.[6]

In addition, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) (administered by the European Patent Office (EPO)), and the Patent Cooperation Treaty (PCT) (administered by WIPO and covering 137 countries), that centralise some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO, OAPI, the analogous treaties among African countries.

In European patent law, the EPC has effect in 32 European states (as of March 2007), including all European Union member states. The EPO examines and grants "European patents" which, subject to formal requirements, then acquire the same status and force as national patents under the national laws of such EPC contracting states as the applicant designates.[7][8] The EPC remits almost all post-grant substantive issues regarding to European patents to national law.

The PCT does not provide a central, international, granting authority, but rather allows a number of the common procedural steps required to obtain a patent to be carried out for a single application. The PCT system is therefore an efficient route to obtaining a patent in a large number of countries as many of the steps need only be performed once. A PCT application also delays many of the highly expensive stages of prosecuting a patent.

[edit] Application and prosecution

For more details on this topic, see Patent application and Patent prosecution.

A patent is obtained by filing a written application at the relevant patent office. The application contains a description of how to make and use the invention and, under some legislations, if not self evident, the usefulness of the invention. The patent application may or must also comprise "claims". Claims define the invention and embodiments for which that the applicant wants patent rights to.

Once a patent application has been filed, most patent offices examine that application for compliance with the requirements of the relevant patent law. If the application does not comply with all of the requirements, the objections are usually communicated to the applicant or his or her patent agent or attorney, who can then respond to those objections to attempt to overcome them and obtain the grant of a patent.

In most countries, there is no requirement that the inventor build a prototype or otherwise reduce his or her invention to actual practice in order to obtain a patent. The description of the invention, however, must be sufficiently complete so that another person with ordinary skill in the art of the invention can make and use the invention without undue experimentation.

Once granted the patent is subject in most countries to renewal fees, generally due each year,[9] to keep the patent in force.

[edit] Economics

For more details on this topic, see Economics and patents.

[edit] Rationale

There are four primary incentives embodied in the patent system: the incentive to invent in the first place, the incentive to disclose the invention once made, the incentive to invest the sums necessary to experiment, to produce, and finally get the invention on the market, the incentive to design around and improve upon earlier patents. Howard T. Markey (chief judge of the United States Court of Customs and Patent Appeals and later of the Court of Appeals for the Federal Circuit), Special Problems in Patent Cases, 66 F.R.D. 529 (1975).

First, patents provide incentives for economically efficient research and development (R&D). Many large modern corporations have annual R&D budgets of hundreds of millions or even billions of dollars. Without patents, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs. Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic idea underlying traditional property rights: why build a house if another person could freely occupy it?

Second, in accordance with the original definition of the term "patent," patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they would prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to humanity.

Third, in many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering costs - computer processors, software, and pharmaceuticals being prototypical examples), once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (For example, the internal "rule of thumb" at several computer companies in the 1980s was that post-R&D costs were 7-to-1). Unless there is some way to prevent copies from competing at the marginal cost of production, companies will not make that productization investment.

Fourth, patent rights create an incentive for companies to develop workarounds to patented inventions, thereby creating improved or alternative technologies that might not otherwise have been developed.

One interesting side effect of modern day patent usage is that the small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital quickly from licensing the invention and may allow rapid innovation to occur because he or she may choose to not manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability.

[edit] Criticism

While each of the four incentives is achieved by the patent system in some contexts, the patent system has countervailing costs, and those costs fall more heavily in some contexts than others. There are many critics and criticisms of patents and this has resulted in the formation of a large number of groups who oppose patents in general, or specific types of patents, and who lobby for their abolishment.

One criticism is that a patent confers a "negative right" upon a patent owner, permitting them to exclude competitors from using or exploiting the invention, even if the competitor subsequently develops the same invention independently. This may be subsequent to the date of invention, or to the priority date, depending upon the relevant patent law (see First to file and first to invent).

Another criticism is that monopolies may create inefficiency. If the grant of a patent is the grant of a monopoly, the patent system may stifle competition and result in higher prices, lower quality, and shortages. Although it is clear that countries with patent systems suffer from fewer shortages(i.e. not being able to get the product/service) than countries which do not have patent systems.[citation needed] Anti-retroviral drugs for HIV/AIDS are sold at higher prices in countries with patent systems but are also of higher quality and more available[citation needed], i.e. more people who need them have access to them, even if at higher prices.[original research?]

Another theoretical problem with patent rights was proposed by law professors Michael Heller and Rebecca Eisenberg in a 1998 Science article.[10] Building from Heller's theory of the tragedy of the anticommons, the professors postulated that intellectual property rights may become so widely fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments.

Since at least the early 1980s, patent offices around the world have accepted that computer programs can lie within the realm of patentable subject matter, although the regulations for when a computer program is a patentable invention differ markedly between countries. It is argued that the resulting software patents inhibit innovation in contrast to the underlying purpose of patents.

In response to perceived problems with the grant of patents, and the evolving nature of technology and industry, there is on-going debate about, and reform of, patent systems around the world. The TRIPs agreement, developed by the WTO has led to the alignment of many patent systems with regard to certain controversial issues, such as what can be protected by patents and the issue of compulsory licences in cases of national need.

[edit] History

For more details on this topic, see History of patent law.
U.S. Patents granted, 1800–2004.[1]
U.S. Patents granted, 1800–2004.[1]

There is evidence suggesting that something like patents was used among some ancient Greek cities. The creator of a new recipe was granted an exclusive right to make the food for one year, and a similar practice existed in some Roman cities[citation needed]. Patents in the modern sense originated in Italy in 1474. At that time the Republic of Venice issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic in order to obtain the right to prevent others from using them. England followed with the Statute of Monopolies in 1623 under King James I, which declared that patents could only be granted for "projects of new invention." During the reign of Queen Anne (1702-1714), the lawyers of the English Court developed the requirement that a written description of the invention must be submitted.[11] These developments, which were in place during the Colonial period, formed the basis for modern English and United States patent law.

In the United States, during the colonial period and Articles of Confederation years (1778-1789), several states adopted patent systems of their own. The first Congress adopted a Patent Act, in 1790, and the first patent was issued under this Act on July 31, 1790 (and the subject matter of that patent was for the making of potash) .

[edit] See also

Wikiquote has a collection of quotations related to:

See List of patent legal concepts for articles on various legal aspects of patents, including special types of patents and patent applications.

[edit] Organizations and patent offices

For more details on this topic, see Intellectual property organization (including international intergovernmental, non-governmental, non-profit, lobbying organizations, and think thanks, as well as professional associations).
For a list of patent offices, see Patent office.

[edit] Treaties, conventions and other legal texts and frameworks

[edit] Other

[edit] References

  1. ^ http://www.ipaustralia.gov.au/patents/what_index.shtml
  2. ^ DLA Piper Rudnick Gray Cary (2005) Patent Litigation across Europe, handout available as per this link.
  3. ^ There are moves to criminalize patent infringement in the European Union. CIPA (2006-06-22). UK patent attorneys welcome clamp down on fake goods but oppose move to criminalize patent infringement. Press release. Retrieved on 2006-07-19.
  4. ^ Assignee (Company) Name. Help Page. U.S. Copyright and Trademark Office (USPTO). Retrieved on July 25, 2007.
  5. ^ U.S. Code collection, Title 35 — Patents
  6. ^ United Kingdom law requiring no explicit authority due to the Supremacy of Parliament.
  7. ^ Article 2(2) EPC
  8. ^ Singer/Stauder, The European Patent Convention, A Commentary, Munich, 2003
  9. ^ the US being a notable exception; see the Maintenance fee (patent) article for more details
  10. ^ Heller, M.A., & Eisenberg, R.S. (1998). Can Patents Deter Innovation? The Anticommons in Biomedical Research. Science, 280(1 May 1998), 280, 698-701.
  11. ^ http://www.patent.gov.uk/about-history-copy.htm, retrieved on December 7, 2006

[edit] External links

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