Talk:Patent/Archive1

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Contents

Letters patent, monopoly, software, and so on

"Furthermore, as the grant of letters patent only grants the right to exclude others from practicing the invention and does not affirmatively grant the right to practice the invention, a patent is not considered a monopoly right."

That is wrong. A patent IS a state granted monopoly, by definition. From the view of an economist it plays no role whether you can license it or not --- as you are able to cash in the "monopoly rent", as you are able to select the market players. When you can forbid others to use the invention you got a monopoly. You can be the only market player.

-> The quote is correct, the responsive commentary is incorrect. I am surprised this is still in debate. The fact the you only have a right of exclusion, not a right of practice, is intentional. The classic case are improvement patents. Also, colloquially informal descriptions of patents as "monopolies" aside, no they are not monopolies. You are not granted a monopoly. Again, you are granted a right of exclusion. You may, over time, acquire monopoly power in the marketplace. Different things. I thought the quote effectively clarified two points often not understood by non patent attorneys.--64.236.170.4 20:23, 7 October 2005 (UTC)

Frequently the impression from popular discussions is that "one can't get software patents in Europe", the reality is quite different; there are many issued software patents in Europe.

Munich Convention forbids software patents. See also EPC 52(2).

Not so. Munich Convention says that patentability of subject matter in a European Patent Application shall be excluded only to the extent that it relates to a computer program as such. Paraphrasing the law is always likely to vary the intended meaning.
---> This is a reinterpretation based on Article 5.3 (the as such clause) put forward by the EPO legal escape to
circumvent the exclusion of Art 52.2. 5.3 only clarifies 5.2, most European courts do not agree with the 5.2
interpretation of the EPO. Prof. Lenz wrote a nice legal analysis of Article 5.2 but unfortunately it is only
available in German language.
The words as such are crucial to understanding this area of the law. It all boils down to understanding that patents are generally granted for things that make a technical contribution to the art. This principle applies across all technical fields. Software is no exception. The snag is that software naturally causes computers to operate, which I guess could be called technical. Merely loading a new program into a computer cannot be considered patentable, but loading a program into a computer that makes the computer do something completely new must be considered patentable. The newly configured computer would be considered a 'new and inventive product', so why not the software that made it that way?
If you come up with a system which is designed to deliver a technical solution to a problem, then it's only fair you should get a patent for the system. If the system can be implemented by a general purpose computer (e.g. a PC) configured by a software product (e.g. sold on a CD-ROM), then unless a patent can be obtained for the software product as a separate article of commerce then the patentee is in a difficult situation and has to jump through more hoops to get a court to listen to him. This is the main driver behind the EPO interpreting its own law the way it has.--Baggie 09:19, 11 May 2004 (UTC)

Baggie, you are wrong. the as such clause is e.G. missed in scandinavia because it just clarifies. It was introduces by the Germans in the 70th. The as such clause was reinterpreted in that way you describe, but this is not the original meaning, but what legal science and monopoly commissions criticised as legal escape of the EPO. Softweare is excluded form patentability. But of course software/mathematics ecc. may be part of "technical" problem. But you have to know that in patent pratice that was interpreted very wide up to the current situation that you just have to reword your "software invention" and describe a general purpose computer, but this is just formal circumvention of EPC 52 performed by the patent system..

Refering to abuse of patents (dead topic)

The new material on "abuse of patents" suffers from serious POV defects. -- NetEsq 22:50 Jan 8, 2003 (UTC)


Maybe there should be a separate page for "current controversies in patent law". Several commentators have noted that the US Patent office is overburdened, resulting in inappropriate issuance of patents. If we just need to write "commentators have noted...", then do that. This has mostly focused on patents related to genes and other biological discoveries. I brought up the patent extension issue specifically because of the announcement today that Bristol had settled an anti-trust suit for this activity. Perhaps it is history now, and should go in an appropriate heading/article:
http://www.nj.com/business/ledger/index.ssf?/base/business-0/1042009923106690.xml
Unfortunately, that article is poorly written and does not explain what really was going on. Basically, under the Hatch-Waxman act, a brand name drug maker can register a pharmaceutical patent with the FDA that will preclude a generic drug maker from developing a product covered by the patent until the patent expires. What Bristol-Myers was accused of was fradulently claiming to the FDA that the scope of newly issuing patents did cover the brand name drug (thereby automatically triggering delays of the generic drug maker) when they did not. Therefore, this is not an abuse of an overburdened Patent Office but of the Food and Drug Administration in a regulatory regime specific to generic drugs. This content should go under a Hatch-Waxman Act or Generic drug article, not in patents and, if referring to this, the abuse of patents section is incorrect as written. Stephen C. Carlson 05:19 Jan 9, 2003 (UTC)
Stephen, it sounds like you're very knowledgeable on this subject. Why don't you work on making the article better? - Zoe
I tried to balance the example of patent extension with an example of patent violation (both are anecdotal, I admit). I believe that the justification for an institution is important in order to understand that institution. Consequently, failure of the institution to meet its expectations is also important. The "abuse" section is clearly of a different tone than the technical/lawyerish discription in the above sections. If we get away from the technical aspects, we open up the risk of getting into a debate. However, I don't think that it is complete without discussing how this institution actually behaves.
This article is long enough as it is, so such examinations should probably go in a new article. Sound good? Can you recommend any names for such an article?
adam
Minor factual error in the last paragraph - James I died in 1625, which is

inconsistent with the 1693 date quoted. Other web sources cite 1624 for the Statute of Monopolies - Colin Bell (crb11@ntlworld.com)

Sheesh! I can't believe nobody got the joke yet: my explanation of patent nonsense is an example of it and should be moved to the bad jokes page. --User:Ed Poor

No, it wasn't patent nonsense but instead merely non-NPOV. --Damian Yerrick
Arguably it was patent nonsense to write "Patent nonsense is nonsensical ideas about patents, particularly the view that a patent provides intellectual property rights.", except that I have heard the term used (jokingly) to mean that -- or from an NPOV, "Patent nonsense is a term that some people in favor of intellectual property law reform use satirically to deride the view that a patent is primarily intended to provide monopoly rights to creators of intellectual property.". So it wasn't patent nonsense at all! (Even though it may still have been a bad joke.) -- Toby Bartels

Wrong statement

"Furthermore, as the grant of letters patent only grants the right to exclude others from practicing the invention and does not affirmatively grant the right to practice the invention, a patent is not considered a monopoly right."

---this is nonsense, in economics that makes no difference and patents are regarded as monopoly rights. It makes no difference that the monopoly right can be granted to others.


---> it is even more sophisticated: It is "no monopoly right" because patents don't give you a positive right to exercise your invention but only to exclude others from using it. Anyway, a patent is a monopoly grant in economics and the effect is the same. The phrase shall be reworded and put emphasis on positive wording.


---> It is not a monopoly because in the case where you have blocking patents, a patentee may be completely unable to make or use the invention he has a patent on. This is no monopoly. It is only a monopoly contingent on no one else having a patent that covers the patentee's invention. To simplify, A gets a patent, B gets a patent on an improvement to A's patent. B may not practice his invention, may not even enter the market, unless A allows him to. He does not have a monopoly when he cannot enter the market. Yes, this is a fine distinction, but it is properly made, and is understood to be the case by anyone who studies patent law.

---> I agree, this is not a monopoly. It is not helpful to use the layperson characterization of the grant of patent right as a grant of monopoly. It is always emphasized that these statutory rights are worded as Italic textnegative rights of exclusionItalic text. The blocking patent concept is the standard example of explanation. Economic concepts such as "monopoly" do intersect with patent law in the form of so-called patent misuse doctrine but this essentially reduces to application of anti-trust law.--Gene Rhough 17:59, 3 May 2005 (UTC)

Technical

I miss the term "technical" and the fact that patent law relates to industry, not services.

The scope of patent exclusion?

Let's say you are a bina fide manufacturer or importer in the U.S. You want to build a product that used a dirt cheap IC (possibly a part of a component built by other people) that may or may not be its vital part.

  • Prior art (inferior technology): $10
  • Patented IC (much better): $15
  • Infringed product (as good as its legal counterpart and is much cheaper): $1

If you are building a $50 MP3 player. The use of that infringed IC is surely not excusable. What if you're are building a $50,000,000 cargo ship with a 3rd party MP3 player that used the infringed IC that you don't know about? I think you can still make or import the ship.

What are the tests of the exclusion rights? -- Toytoy 10:00, Apr 1, 2005 (UTC)

Ships, airplanes and similar vehicles are a special case - Paris Convention has a carve out so that temporary presence is not an infringement. However, put that same MP3 player in a car, and now the car may well be an infringement, and could be subject to injunction. Damages, however, would likely be limited to the MP3 player. David Boundy

Disputed

Term of patent in the US - dubious statement

This recent addition is probably wrong, as far as I know:

"In the United States, for applications filed prior to June 8, 1995, the patent term is seventeen years from the issue date. For applications filed on or after June 8, 1995, the term is the longer of twenty years from the earliest claimed filing date, or seventeen years from the issue date."

To my understanding, for [US patent] applications pending on June 8, 1995, the term is the longer of twenty years from the earliest claimed filing date, or seventeen years from the issue date (transitional provisions), and for applications filed after June 8, 1995, the term is twenty years from the earliest claimed filing date, period. Is this correct? Can anybody confirm? Thanks. --Edcolins 19:27, May 14, 2005 (UTC)

35 U.S.C. sec 154 (a)(2): Term. -- Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application or applications under section 120, 121, or 365(c) of this title, from the date on which the earliest such application was filed. [Note: International priority dates shall not be used to determining this term.]
35 U.S.C. sec 154 (b): Basically, if the USPTO fails to examine your patent application in time, your patent term may get an extension.
35 U.S.C. sec 154 (c)(1): Determination. -- The term of a patent that is in force on or that results from an application filed before the date that is 6 months after the date of the enactment of the Uruguay Round Agreements Act [Note: June 8, 1995] shall be the greater of the 20-year term as provided in subsection (a), or 17 years from grant, subject to any terminal disclaimers.
On the other hand, if your patent application is obvious in light of one of your earlier application, you may be required by the USPTO to disclaim a part of your term. For example, Your patent A terminates on December 24, 2020. You filed another patent application two years later. Under normal condition, you expect patent B to last until December 24, 2022. However, it is obvious in light of patent A. So the USPTO will ask you to disclaim the part of the term after December 24, 2020.
To a reexamed patent, the term lasts from the date of reissue to the end date of the earlier patent.
Example: Your patent No. 6,xxx,xxx (filing: Jan 1, 2000; issue: Jan 1, 2002; end: Jan 1, 2020) is being challenged by the defendant in the USPTO. The USPTO issued a more restricted patent RE2x,xxx (filing: Jan 1, 2003; issue: Jan 1, 2004). Your patent is enforceable from Jan 1, 2004 and lasts until Jan 1, 2020.
A medical patent may obtain an extension if you do some extra child-related research. -- Toytoy 14:11, May 19, 2005 (UTC)
Thanks a lot. This deserved an article: Term of patent in the United States. Feel free to have a look and correct it as you see fit. Cheers. --Edcolins 20:54, May 20, 2005 (UTC)

Rights not granted?

It would be nice to have some more information about the rights not granted under a patent. The specific piece of information I was looking for when deciding to read the article, is if under a traditional patent, it would be considered an infringement if a third party made drawings etc public (of course without allowing some one to use them to build the invention and sell until after the patent not is guilty anymore). The article does say that it's only the patentee who has a right to put the invention on the market. That isn't sufficiently clear for me as a layman in the area, though - where goes the border between a "build-a-widget-kit" and "drawing-to-build-a-widget" and "technical-book"?

In general, the patent right only gives the owner the right to exclude others from making, using and selling an invention. There are patents which cover designs, known as design patents, but this is probably not what you mean. However, if a third party sold a kit with instructions on how to assemble it to "make" a patented invention, you're probably looking at contributory infringement or inducement. In the US, look at 35 USC 271. Mmmbeer 03:03, 22 July 2005 (UTC)

The question I'm thinking about it is the current the debate in the EU about software patents - part of the proposal is outlawing third party implemented software, which is part of a hypothetical software patent. I see that as a really bad hit on my free speech rights and want to be sure to make correct comparisons (to distributing drawings for mechanical inventions, that is), in my communication with my MEPs, trying to persuade them to vote the software patents down. //Magnus

Can't help you on this, as I'm not entirely sure what you mean. Mmmbeer

Suggestion Split into Sepearte Articles or New Divisions

This article has a lot of good information, but is not optimally organized and is trying to do too much thus creating ambiguities, IMHO. Many differencies in the details exist at the state levels, and this articles gets into some of those specifics which I doubt hold true for all countries' patent laws. The "Rights Granted, not Granted" section is a good example. Many states do not have an examination process for example, only a registration process, which is mentioned in passing. Most of the statements in this article are really directed toward U.S., European or Canadian patent law, and it gets hard to generalize about all of them together, ignoring their differences.

I suggest that this article get parsed down to a very basic overview of patent rights generally. And new articles are created on the specifics of U.S. patent law, Canadian patent law, Eurpoean patent law, Australian patent law, the PCT and WIPO, and the Tripps agreement. Or, in the alternative, separate sections are made in this article for each of these systems, but I disfavor this later approach, since each of these are really separte topics, albeit related.--RyanKoppelman 13:32, 15 July 2005 (UTC)

Is the intro strictly accurate?

The intro to the articles says a patent gives rights to an inventor who patents something which is new, inventive and useful. Is the word useful accurate? Is it not so that something that is patented need not actually work? Moriori 02:15, July 22, 2005 (UTC)

Utility is most certainly a requirement of patentability. Of course, most any invention probably meets the utility requirement and is used only to preclude inventions like perpetual motion machines. It used to be used to preclude inventions on moral grounds, but I doubt that anything like that would work today. It is a very low bar. Mmmbeer 02:23, 22 July 2005 (UTC)
I should quote from 35 USC 101 (my emphasis)

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title

Mmmbeer 02:26, 22 July 2005 (UTC)

Linking to patents

Patent links on the wiki are currently really long. I just found this:

How can I link to a particular patent?

A special shortened URL format:http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=5123456
where the patent number "5123456" may be replaced by any valid patent number within the database, has been established to enable users to more easily construct a URL for bookmarking or linking to the full-text of a single granted patent. To simplify this process even further, the patent grant search process has been modified such that when a search results in a single hit, the user is taken directly to the full-text display for that patent, rather than to a hit list containing only the single patent.

Please try to use these links for ease of reading markup. - Omegatron 16:40, July 30, 2005 (UTC)

Oh. There's a template for it: U.S. Patent 5,123,456  - Omegatron 19:27, July 30, 2005 (UTC)

Quote removed

I have removed this quote.

Patent litigation is the sport of kings
-Christopher Thornham discussion during Apotex v GSK.

Please cite your sources. Google returns no hit for "Patent litigation is the sport of kings" Thornham [1]. Thanks. --Edcolins 19:51, 28 October 2005 (UTC)

Economics and patents

this article is supposedly summarized here, but the summary is longer and possibly independent of that article. Someone should fix this.--MarSch 10:08, 2 November 2005 (UTC)

Patents in Communist Nations

  1. Does the People's Republic of China grant patents to its citizen? If yes, please provide some useful information.
  2. What did the Soviet Union do to preserve intellectual property rights? Were inventors granted a patent with a 20-year term?
  3. In general, do communist nations grant patents? If not, is there some other form of incentive for inventors?

--Jay on 26 November 2005

1. Yes, I think so. This esp@cenet page [2] provides some 500+ references to Chinese patents granted to Chinese citizens.
However:
"Although it is often termed a communist state in the West, the People's Republic of China (PRC) has considerably privatized its economy in the past three decades but retains significant political control of the economy especially in the remaining state-owned enterprises and the banking sector. Politically, it remains a one-party authoritarian state." (Source: Wikipedia article on PRC).
2. and 3. I think that the Soviet Union granted some sort of "inventor's certificate" to its citizens [3] (probably offering them some sort of recognition, like Yuri Gagarin's in another domain), but I can't imagine how they could be enforced and led to an actual monopoly in a country wherein there was neither any competition nor market at the outset.
--Edcolins 23:01, 26 November 2005 (UTC)

The People's Republic of China now grants enormous numbers of patents (130133 applied for in 2004, 49360 granted, with a very high sustained rate of growth over recent years)- see the website of the State Intellectual Property Office of the People's Republic of China [4], which is itself an International Searching and Preliminary Examining Authority under the Patent Cooperation Treaty.

Patents of some sort have been provided by most Communist nations in recent years. I don't have details of many, but most had joined the Paris Convention by the mid-80s [5], which is a good indication that patents were in principle available, though their scope and enforceability may not have been the same as in western nations. Many have also joined the PCT. Tim B 09:35, 28 February 2006 (UTC)

Quotes??

Why is there such a long list of quotes in the article? Shouldn't a list of this size be moved to Wikiquote? --Bryan Nguyen | Talk 05:11, 27 November 2005 (UTC)

http://en.wikiquote.org/wiki/Patent

A page about Patent has been added to Wikiquote which contains Famous quotes included in this article. You might consider to remove that section or to add a {{wikiquote}}

Wikiquote has a collection of quotations related to:

.

Ncrfgs 17:59, 30 November 2005 (UTC)

Nice one. Thank you. --Edcolins 19:29, 30 November 2005 (UTC)

Patent Link

Pat2pdf.org can provide direct link for the patent PDF files. With no forms, US Patent 4,022,227 can be read at:

http://pat2pdf.org/pat2pdf/foo.pl?number=4,022,227

And here is a link to the first patent:

http://pat2pdf.org/pat2pdf/foo.pl?number=x1

Product vs Process patents

Can someone please throw some light on Product and Process patents in the main article?