Information About ™Patent |
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| intellectual property law | |
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A patent is a set of Exclusive Right s granted by a State to a person 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 a patentee is the right to ''prevent others'' from making, using, selling, offering to sell or importing the Claim ed 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 Decree s granting exclusive rights to certain individuals or Business es. LEGAL EFFECT A modern 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. A patent is, in effect, a limited monopoly that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. 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 to make and use the invention. This written description is provided in what is known as the patent specification, which often is accompanied by figures that show how the invention is made and how it operates. In addition, at the end of the specification, the applicant must provide the patent office with one or more Claims that distinctly point out what the applicant regards as his or her invention. A claim, unlike the body of the specification, is not a detailed description of the invention, but a succinct series of words 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. It is the claims that define what a patent covers or does not cover. A single patent may contain numerous claims, each of which is regarded as a distinct invention. The United States Patent and Trademark Office, at least in theory, will not allow a claim in a patent application unless that claim is supported by the disclosure of the specification. In addition, the patent office will not, also in theory, allow a patent claim unless it is distinguishable over the subject matter that existed in the art before the invention, or in the "prior art." If a claim in a patent application is not supported by the disclosure of the patent specification, or if such a claim would cover the prior art, it is the obligation of the patent examiner to reject it. A patent is an exclusionary right-it gives the right to exclude others from infringing the patent, but that does not necessarily give the owner of the patent the right to exploit the patent. This is so since many inventions relate to improvements of prior inventions which may still be covered by someone else's patent. For example, 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. Generally, patents are enforced only through Civil Lawsuit s. An owner of a United States patent who believes that another has infringed his or her patent may bring an action for patent infringement in a United States federal court. 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. 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. A patent claim may be held invalid because, among other things, the claim is not supported by the specification, or because the claim 'reads' upon the prior art. If a defendant succeeds in demonstrating that a patent is invalid, he or she will not be held to infringe that patent. In the United States, proving patent invalidity can be difficult. United States Courts typically presume that the patent office conducts the review of patent applications competently. Patents are consequently presumed valid unless proved to be invalid by clear and convincing evidence. The vast majority of patent rights, however, are not determined through litigation, but are resolved privately through patent licensing. Patent Licensing Agreements are effectively Contract s in which the patent owner (the licensor) agrees not to sue the licensee for infringement of the licensor's patent rights. 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. Governing laws 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, nations form a Patent Office with responsibility for operating that nations 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 are some non-national offices (for example, the European Patent Office ) that grant patents with effect in states contracting to the system. Furthermore, there are certain international treaties (for example, the Patent Cooperation Treaty ) that centralise a certain portion of the grant process, but do not actually grant patents. There is a trend towards global harmonisation 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, 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 , which right is fundamental to modern patent usage and which is provided in line with the convention. The authority for patent statutes in different countries varies. In the United States for instance, the Patent And Trademark Office gets its authority from statutes in Title 35 of the United States Code , which in turn is based on Article One , Section 8 of the U.S. Constitution . In the UK, the United Kingdom Patent Office derives its authority from the Patents Act 1977, as modified. ECONOMIC RATIONALE There are three primary justifications for granting patents. First, in accordance with the original definition of the term "patent", it is argued that patents facilitate and encourage disclosure of Innovation s into the Public Domain for the Common Good . If Inventor s did not have the legal protection of patents, they may prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after patent protection ends, or for further improvement by other inventors (who may in turn patent these improvements). Furthermore, when a Patent's Term has expired, the public record ensures that the patentee's idea is not lost to humanity. Second, it is broadly believed that patents incentivize economically efficient Research And Development (R&D). Many large modern Corporation s have annual R&D budgets of hundreds of millions or even billions of dollars. Without patent protection, 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? Third, many believe that 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 monopoly 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/she may choose to not manage a manufacturing buildup for the invention. Thus, time and energy can be spent on pure innovation and allow others to concentrate on manufacturability. Criticism There are arguments in opposition to patent rights. Granting a patent confers a "negative right" upon a patent owner, because he or she may legally exclude competitors from using or exploiting the invention, even if the competitor subsequently (either 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 ) independently develops the same invention. It is argued that monopolies create inefficiency, and that since the grant of a patent is, essentially, the grant of a monopoly, the patent system may stifle Competition and result in higher prices, lower quality, and shortages. A more subtle problem with patent rights was put forth by law professors Michael Heller and Rebecca Eisenberg in a 1998 ''Science'' article. 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. All patents are published and so there is a tension to the applicant between including sufficient detail to secure patent protection and including excessive information and thereby giving away "trade secrets" to the disadvantage of their company. It has been argued that the sufficiency requirements of patents are not rigorous enough and that patents are sometimes granted without any knowledge being imparted to society. It has also been suggested that market incentives alone would be sufficient incentive to innovate even in the absence of patents. Historical evidence can be found both in favour of patent systems and against it. The mid-19th century dyestuffs industry faltered in Britain where patent protection was available, and flourished in Germany despite the absence of such protections. In contrast, patent protection has enabled inventors to protect their innovative products from larger companies and receive reward for their advances, for example, the Dyson vacuum cleaner has led to a very significant shift in the vacuum cleaner market and the inventor has benefitted from patent protection. 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. There is also an active community who oppose patents and who lobby for the abolishment of patent systems. HISTORY OF PATENTS ] Although there is evidence suggesting that something like patents was used among some ancient Greek cities, patents in the modern sense originated in Italy. The first patent law was a Venetian Statute of 1474 in which 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 legal protection against potential infringers. England followed with the Statute Of Monopolies in 1623 under King James I . Prior to this time, the crown would issue Letters Patent (meaning "open letter", as opposed to a letter under seal) providing any person with a "monopoly" to produce particular goods or provide particular services. The first of them was granted by Henry VI in 1449 to a Flemish man a 20 year monopoly on the manufacture of stained glass. This was the start of a long tradition by the English Crown of the granting of " Letters Patent " to favoured persons (or people who were prepared to pay for them). This became increasingly open to abuse as the Crown granted patents in respect of all sorts of known goods (salt, for example). This power, which was to raise money for the crown, was widely abused, and court began to limit the circumstances in which they could be granted. After public outcry, James I was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the ''Statute of Monopolies'' in which Parliament restricted the crown's power explicitly so that the King could only issue letters patents to the inventors or introducers of original inventions for a fixed number of years. In the reign of Queen Anne the rules were changed again so that a written description of the article was given. Section 6 of the Statute refers to "manner of new manufacture... [by inventors", and this section remains the foundation for patent law in Australia and New Zealand. The Statute of Monopolies was later developed by the courts to produce modern patent law; this innovation was soon adopted by other countries. OBTAINING A PATENT A patent is obtained by filing a written Application at the relevant patent office. That application will contain a specification detailing the invention and the protection claimed, together with forms relating to the procedural aspects of obtaining a patent. In most countries, including the United States, there is no requirement that the inventor actually build a prototype or otherwise reduce his or her invention to practice in order to obtain a patent. Once a Patent Application has been filed, a patent office examines 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 communicated to the Applicant (or his representative), who can then respond to those objections to attempt to overcome them to obtain the grant of a patent. SEE ALSO See List Of Patent Legal Concepts for articles on various legal aspects of patents, including special types of patents and patent applications. Organizations and patent offices
Treaties, conventions and other legal texts and frameworks
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EXTERNAL LINKS Patent Office Web sites and other regional info For a list of Patent Offices and their websites, please see this list maintained by WIPO. Patent organizations
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