Difference between revisions of "Patent" - New World Encyclopedia

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By virtue of authorship, the drafter of a claim has full discretion in organizing a claim into subparts, and the author also has the option of numbering the subparts, of spacing them, or distinguishing them in some other way (ibid. 2003.)
 
By virtue of authorship, the drafter of a claim has full discretion in organizing a claim into subparts, and the author also has the option of numbering the subparts, of spacing them, or distinguishing them in some other way (ibid. 2003.)
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====Infringement====
 
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Patent litigation arises when a patent holder, or ''patentee'', elects to assert her patent rights against someone else that she believes is producing or selling a device that is identical to, or resembles very closely, her patented device.
 
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The patent provides notice to the public of the rights of the patentee, but once the PTO has issued a patent, it is up to the patentee to enforce that patent through civil actions against infringers. The patentee has an incentive to sue infringers because they may erode the rightful limited monopoly and destroy the economic value of the patent.
 
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'''Infringement''' can be relatively easy to detect and defeat when the accused product is identical to the patented product.
 
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However, '''''two products are never placed side by side to determine infringement'''''. Rather, the '''''accused product is compared to the claims of the patent'''''. Because language is inherently imprecise, this comparison of device to language is a great source of uncertainty in the law (ibid. 2003.)
 
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And just because the claim language can be ambiguous and subject to more than one interpretation, the court interprets the claim language and sets forth which of the plausible interpretations will be used. Once the court has completed this interpretation process, it is up to the jury to compare the accused device to the patent claims as construed by the court. If the jury finds that the accused device has all the requirements of a claim, it finds literal infringement.
 
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This description of the process for determining literal infringement has used the word "requirements" to describe the components of a claim. Note that the court aids jury members to determine what those requirements are before the jury compares the patent claims to the accused device to decide whether infringement has occurred. Both the claim interpretation (or claim construction) by the court and the comparison by the jury are potential sources of uncertainty in the law (ibid. 2000.)
 
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The process of claim interpretation during the patent infringement litigation–which, as we heard above, may be a potential source of "uncertainty in the law"—has three additional procedural methologies that help to zero on the correct court ruling. These are known as: '''''The Doctrine of Equivalents''''', '''''The All Elements Rule''''', and '''''Prosecution History Estoppel'''''. 
 
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*'''Doctrine of Equivalents'''
 
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Under current law, infringement may also occur under the doctrine of equivalents. If literal infringement were the only kind of infringement, it would perhaps be easier to predict the outcome in infringement actions because the uncertainty would lie principally in the various possibilities of claim construction. However, restricting infringement to literal infringement would also provide opportunities for third parties to commit fraud on patents.
 
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'''EXAMPLE''': Inconsequential changes in the patented device, which though adding nothing, would take his imitation beyond the reach of the law.
 
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The doctrine of equivalents is used to prevent this kind of counterfeiting. Originating in 1853, this doctrine was explained a century later by Justice Jackson:
 
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"…….''Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect''……."
 
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In the same tenor one of the  recent court rulings states, that:
 
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”… ''the specification and prosecution history of a patent are parts of the intrinsic record that are to be primarily used to interpret claim meaning…and  that dictionary definitions can be helpful in interpreting ambiguous claim terms but they “do not require, or even allow, the Court to disregard the intrinsic record''…..” (Gelman, 2005)
 
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Thus the '''doctrine of equivalents is used to expand patent rights beyond their literal boundaries to prevent fraud'''. A product infringes through the doctrine of equivalents if it does not contain all the exact requirements in the claim language, but very nearly so. Infringement under the doctrine of equivalents is also called nontextual infringement because infringement can be found even though the literal textual requirements are not met.
 
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*'''The All Elements Rule'''
 
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The doctrine of equivalents is meant to prevent fraud on the patent system, but this doctrine is also susceptible to exploitation. Just as unscrupulous infringers can attempt to defraud a patentee (and can be thwarted by the doctrine of equivalents), so can a patentee defraud the public by attempting to extend  patent rights beyond reasonable bounds through the doctrine of equivalents.
 
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Patent law has developed restraints on the doctrine of equivalents to prevent this problem. One fundamental restraint is the All Elements Rule.
 
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The ''All Elements Rule'' refines the application of the doctrine of equivalents in two important ways:
 
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*First, it requires that the equivalents analysis focus on matching parts of the claim language to equivalent parts or components (elements) of the accused device.
 
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This aspect of the All Elements Rule comes from the word "elements" in the rule. Thus, the All Elements Rule dictates that the way to determine if a product infringes through the doctrine of equivalents is not to examine the product as a whole to see if it resembles the claimed invention. Rather, the analysis must be a disciplined and systematic one, where each element is compared; the function/way/result analysis must be made "element by element."
 
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*The second important way that the All Elements Rule refines the application of the doctrine of equivalents is that it requires each piece or component of the claimed invention to have a corresponding piece or component in the accused device.
 
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Thus, it requires all the claimed elements to be present in the accused device. This aspect of the All Elements Rule comes from the word "all" in the rule. But this aspect of the doctrine of equivalents necessarily dovetails with literal infringement: each of the requirements set forth by a claim must be met either literally or by an equivalent in order for infringement to be found.
 
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In other words, a patentee will not succeed in an infringement action if the accused product lacks one of the claimed elements completely, even if the two products generally accomplish the same result in substantially the same way.
 
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Note that the All Elements Rule helps the accused infringer because it necessitates that each requirement of the claim have a corresponding counterpart in the accused device; the patentee may not successfully assert that the accused device is generally similar to the claimed device without showing this correspondence.
 
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*'''Prosecution History Estoppel'''
 
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The doctrine of equivalents is thus restrained by the All Elements Rule, but this is not the only safeguard the law places on that doctrine.
 
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A second restraint on a patentee's use of the doctrine of equivalents to unfairly expand patent rights is called prosecution history estoppel.
 
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If a patent applicant—during the course of prosecution—is forced by the examiner to limit broad claims (thus relinquishing subject matter) in order to meet the requirements of novelty, nonobviousness, and so forth, prosecution history estoppel prohibits holder from later reclaiming the relinquished subject matter. If the applicant limits the claims by making limiting arguments to the patent examiner, the result is argument-based estoppel.
 
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If the applicant limits the claims by amending them, the result is amendment-based estoppel. The limitations made during prosecution thus remain in force, and the correspondence between patent attorney and patent examiner serves as a record of these limitations.
 
  
 
==Corporations, Assigns, Public Money, and Corruption==
 
==Corporations, Assigns, Public Money, and Corruption==

Revision as of 19:57, 22 November 2021


Scales of justice
Intellectual property law
 
Rights
Authors' rights · Intellectual property · Copyright
Database right · Indigenous intellectual property
Industrial design rights · Geographical indication
Patent · Related rights · Trademark
Trade secret · Utility model
Related topics
Fair use · Public domain
Trade name

A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of years in exchange for publishing an enabling disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.[1]

The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the scope of protection that is being sought. A patent may include many claims, each of which defines a specific property right. These claims must meet various patentability requirements, which in the US include novelty, usefulness, and non-obviousness.[2][3]

Patents are given to inventors to stimulate the invention of new products. However, patents are also a source of corruption when they are resold to companies for price gouging, or when they are given for products developed with the help of government funding. Reforms to prevent price gouging and corruption could improve patent systems.


Definition

The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents, which were land grants by early state governments in the US, and printing patents, a precursor of modern copyright.

In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent is often referred to as a form of intellectual property right,[4][5] an expression which is also used to refer to trademarks and copyrights,[5] and which has proponents and detractors (see also Intellectual property). Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US,[6] plant breeders' rights are sometimes called plant patents,[7] and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents.

The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.

History

Although there is some evidence for a form of patent rights in Ancient Greece in the Greek city of Sybaris,[8][9] the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. Recent historical research has suggested that the Venetian Patent Statute of 1474 was influenced by laws in the Kingdom of Jerusalem that granted monopolies to developers of novel silk-making techniques.[10] Patents were systematically granted in Venice, where they issued a decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years.[11] As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.[12]

The English patent system evolved from its early medieval origins into the first modern patent system that recognized intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish.[13] By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies.[14] After public outcry, King James I of England (VI of Scotland) 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 (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere.

Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne, patent applications were required to supply a complete specification of the principles of operation of the invention for public access.[15] Legal battles around the 1796 patent taken out by James Watt for his steam engine established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented.[16]

The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.[17]

The modern French patent system was created during the Revolution in 1791.[18] Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844 – patent cost was lowered and importation patents were abolished.[19]

The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts."[20] The first patent under the Act was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision to the patent law was passed. The 1836 law instituted a significantly more rigorous application process, including the establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted.[21]

Law

A patent does not give a right to make or use or sell an invention.[22] A patent provides the right to exclude others[22] from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date[23] subject to the payment of maintenance fees. From a practical standpoint, however, a patent is better and perhaps more precisely regarded as conferring upon its proprietor "a right to try to exclude by asserting the patent in court," for many granted patents turn out to be invalid once their proprietors attempt to assert them in court.[3] A patent is a limited property right the government gives inventors in exchange for their agreement to share 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. If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.

Challenges

In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called opposition proceedings. It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that the patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not patentable subject matter at all; the claimed subject matter was actually not new, or was obvious to the person skilled in the art, at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons.[24][25]

Infringement

Patent infringement is the violation of the patent right, when a third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a national basis. The making of an item in China, for example, that would infringe a US patent, would not constitute infringement under US patent law unless the item were imported into the US.[26]

The Doctrine of Equivalents protects from someone creating a product that is basically the same product as a patented product with just a few modifications.[27]

Contributory Infringement is participating in another’s infringement. This could be a company helping another company to create a patented product or selling the patented product which is created by another company.[28]

Inducement to Infringement is when a party induces or assists another party in violating a patent. An example of this would be a company paying another party to create a patented product in order to reduce their competitor’s market share.[29]

Gray market goods exist when a patent owner sells a product in country A, wherein they have the product patented, then another party buys and sells it in country B, where a different person owns a patent. With either national or regional exhaustion being the law in country B, the owner may still be able to enforce their patent rights; however, if country B has a policy of international exhaustion, then the patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country.[30]

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 district court), although some countries (as France and Austria) have criminal penalties for wanton infringement.[31] Typically, the patent owner seeks monetary compensation (damages) for past infringement, and seeks an injunction that prohibits the defendant from engaging in future acts of infringement, or seeks either damages or injunction. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (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 accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim. A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for patentability in the relevant country. Although an infringer is generally free to rely on any available ground of invalidity (such as a prior publication, for example), some countries have sanctions to prevent the same validity questions being relitigated. An example is the UK Certificate of contested validity.

Patent licensing agreements are contracts in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, or import the claimed invention, usually in return for a royalty or other compensation. It is common for companies engaged in complex technical fields to enter into multiple 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 share the benefits of using each other's patented inventions. Freedom Licenses like the Apache 2.0 License are a hybrid of copyright/trademark/patent license/contract due to the bundling nature of the three intellectual properties in one central license. This can make it difficult to enforce because patent licenses are granted differently from copyrights, and would need multiple contracts.[32]

Ownership

In most countries, both natural persons and corporate entities may apply for a patent. In the United States, however, only the inventor(s) may apply for a patent, although it may be assigned to a corporate entity subsequently[33] and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company.[34] Applications by artificial intelligence systems, such as DABUS, have been rejected in the US, the UK, and at the European Patent Office on the grounds they are not natural persons.[35]

The inventors, their successors or their assignees become the proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor(s).

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.[36] The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves.

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 granted by national or regional patent offices.[37] A given patent is therefore only useful for protecting an invention in the country in which that patent is granted.

Commonly, a nation or a group of nations 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.

The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.[38] 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.

There is a trend towards global harmonization of patent laws, with the World Trade Organization (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.

Internationally, there are regional treaty procedures, such as the procedures under the European Patent Convention (EPC) [constituting the European Patent Organisation (EPOrg)], that centralize some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO and OAPI, the analogous treaties among African countries, and the nine CIS member states that have formed the Eurasian Patent Organization. A key international convention relating to patents is the Paris Convention for the Protection of Industrial Property, initially signed 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 Paris Convention set a minimum patent protection of 20 years, but 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. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30 month priority for applications as opposed to the standard 12 the Paris Convention granted. A patent application filed under the PCT is called an international application, or PCT application. The steps for PCT applications are as follows:

1. Filing the PCT patent application

2. Examination during the international phase

3. Examination during the national phase.[39]

Alongside these international agreements for patents there was the Patent Law Treaty (PLT). This treaty standardized the filing date requirements, standardized the application and forms, allows for electronic communication and filing, and avoids unintentional loss of rights, and simplifies patent office procedures.[40]

Sometimes, nations grant others, other than the patent owner, permissions to create a patented product based on different situations that align with public policy or public interest. These may include compulsory licenses, scientific research, and in transit in country.[41]

Application and prosecution

A non-refundable filing fee for a patent application must be paid to start an application process. The applicant will want to ensure that their material is patentable before this. Patentable material must be man-made, anything natural cannot be patented. For example, minerals, materials, genes, facts, organisms, and biological processes cannot be patented, but if someone were to take this and utilize an inventive, non-obvious, step with a natural item to create something man-made, the end result, could be patentable. That includes man-made strains of bacteria, as was decided in Diamond v. Chakrabarty.[42] Patentability is also dependent on public policy, if it goes against public policy, it will not be patentable. An example of this is patent a man-modified higher life-form, such as a mouse as seen in Harvard College v. Canada.[43] Additionally, patentable materials must be novel, useful, and a non-obvious inventive step.[44]

A patent is requested by filing a written application at the relevant patent office. The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention.

Claims generally consist of three parts:

  • a preamble;
  • a transition phrase such as "comprising"; and
  • a list of components, steps, and relationships that the applicant deems essential to defining the invention.

In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided.

The application also includes one or more claims that define what a patent covers or the "scope of protection."

After filing, an application is referred to as "patent pending." While this term does not confer legal protection, and a patent cannot be enforced until granted, it serves to provide warning to potential infringers that if the patent is issued, they may be liable for damages.[45][46][47]

Once filed, a patent application is "prosecuted." A patent examiner reviews the patent application to determine if it meets the patentability requirements of that country. If the application does not comply, objections are communicated to the applicant or their patent agent or attorney through an Office action, to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an opposition proceeding between grant and issuance, or post-issuance.

Once granted, the patent often requires renewal fees to keep the patent in force. These fees are generally payable on a yearly basis. Some countries or regional patent offices (e.g. the European Patent Office) also require annual renewal fees to be paid for a patent application before it is granted.

Costs

The costs of preparing and filing a patent application, prosecuting it until grant, and maintaining the patent vary from one jurisdiction to another, and may also be dependent upon the type and complexity of the invention, and on the type of patent.

The European Patent Office estimated in 2005 that the average cost of obtaining a European patent (via a Euro-direct application, i.e. not based on a PCT application) and maintaining the patent for a 10-year term was around €32,000.[48] The London Agreement on May 1, 2008 slightly reduced this amount, since fewer translations are required.

In the United States, in 2000 the cost of obtaining a patent (patent prosecution) was estimated to be from $10,000 to $30,000 per patent.[49] When patent litigation is involved (which in year 1999 happened in about 1,600 cases compared to 153,000 patents issued in the same year[49]), costs increase significantly: although 95% of patent litigation cases are settled out of court,[50] those that reach the courts have legal costs on the order of a million dollars per case, not including associated business costs.[51]

Alternatives

A defensive publication is the act of publishing a detailed description of a new invention without patenting it, so as to establish prior art and public identification as the creator/originator of an invention, although a defensive publication can also be anonymous. A defensive publication prevents others from later being able to patent the invention.

A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by non-disclosure agreement and labour law, each of which prevents information leaks such as breaches of confidentiality and industrial espionage. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public,[52] whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork;[52] has an immediate effect;[52] and does not require any disclosure of information to the public.[52] The key disadvantage of a trade secret is its vulnerability to reverse engineering.[53]

Major occurrences in a Patent Law: Claims and Infringement

Patents give limited legal monopoly rights to inventors or their assigns, but the scope of those rights depends on the quality and wording of the patent itself. There are two critical times for determining whether a patent passes muster under the statutory standard:

  • when the application is submitted to the scrutiny of an examiner at the Patent and Trademark Office (PTO) to determine whether it should issue as a patent, and
  • when litigation arises concerning the already-issued patent.

Despite the fact that an issued patent enjoys a presumption of validity, litigation often presents the more rigorous test for a patent because an accused infringer will often, as a defense to infringement, attack the validity of the patent being asserted. Litigation also differs from examination in that the patent claims are compared, not only to the prior art, but also to the accused device or process to check whether the device constitutes the invention ( Nelson, 2003.)

Patent claims

The specific attributes of novelty of the item, for which a patent is sought, are called claims.

Today, patents must contain claims, and the claim language has become the central focus of both patent drafting and patent litigation. The claims are made up of formal—sometimes technical—language, carefully chosen to set forth the legal parameters of the invention. The claim language is scrutinized and compared to other inventions, publications, and other kinds of prior art to see if the invention is truly novel and not obvious. The claims are also scrutinized to determine infringement—whether or not the subject matter of the accused device falls within the scope of the claims (ibid. 2003.)

Claims generally consist of three parts:

  • a preamble;
  • a transition phrase such as "comprising"; and
  • a list of components, steps, and relationships that the applicant deems essential to defining the invention.


Each claim is written in the form of a sentence.

EXAMPLE: A simple claim of an apparatus for keeping a human head dry during a shower, could read as follows.

"...An apparatus for keeping a human head dry during a shower, comprising:

*(a) a waterproof material larger than the head,

*(b) connected to an elastic material at the edge of said waterproof material,

*(c) said elastic material allowing for insertion of the head,

*(d) said elastic material keeping said waterproof material snuggly fitted to, and enclosing the head..."

By virtue of authorship, the drafter of a claim has full discretion in organizing a claim into subparts, and the author also has the option of numbering the subparts, of spacing them, or distinguishing them in some other way (ibid. 2003.)

Corporations, Assigns, Public Money, and Corruption

When U.S. patents began, it was assumed that patents would be held by individuals. The U.S. Founders specifically forbid operation of the East India and Hudson's Bay companies because of their quasi-monopoly status and ties to the King of England and the cronyism that awarded profits to shareholders. At the end of the 19th century the Supreme Court decision on Santa Clara County v. Southern Pacific Railroad Company determined that a corporation is a legal "person" with respect to economic rights. Thus, corporations could develop, hold, or purchase patents. This opened a pandora's box of ethical issues regarding patents, particularly as related to serving the public interest.

One prominent ethical problem is related to patents on medicine, when people are very sick and perhaps will die without it. They are in a very vulnerable position and will often pay virtually any price to stay alive. There are many examples of pharmaceutical companies taking advantage of such consumers and charging hundreds or thousands of dollars for treatments which, on a competitive market might sell for a few dollars. This is particularly true of publicly-traded stock companies, whose primary goal is profit for investors, and conscience does not play an important role. If the situation is serious enough, as in the case of insulin, or HIV-AIDS treatments, the government may intervene. Or, in the case of the COVID-18 vaccines or treatments, governments, in collusion with manufacturers, will pay an inflated price and hide the long-term costs to citizens.

A second problem is a company buying patent rights from the inventor with the intention of raising the price. While the inventor may receive an acceptable personal windfall, the trading of patents does not serve society and was the original purpose of the patent. The patent buyer neither invented the product nor served the public interest, but profited from buying monopoly status at everyone else's expense. This is an example of the abuse or hijacking of the patent system.

A third ethical problem is the patenting of a product that received development funding from the government. In this case, taxpayers is paying part of the cost of the research and, arguably the developer is working for the government. Government-developed products should be in the public domain, and it is unethical for individuals to get large payouts at public expense. Nevertheless, government agency elites and the corporations they are supposed to regulate often collude to profit by patenting such products. For example, Merck sold millions of doses of Molnupiravir to governments at $700 per treatment, when the production cost of the drug is about $17. Merck did not even develop this drug, but bought the patent on the drug that was developed with more than $30 million in research grants to an organization affiliated with Emory University. Ethically, this drug should have been denied the patent and put in the public domain, letting the society that paid for the drug reap the benefits.

Besides, denying patents to products developed with government subsidies, there are other ways that governments could check against price gouging while providing a significant windfall to the developer:

  1. Require mandatory subrights sales to other producers. A common fee of 10% royalties for subrights would only raise the market price of the product by 10%, essentially giving the patent holder a 20% windfall on every product sold by another producer.
  2. Allow the government to buy the patent for a significant price, by double or triple the development cost to the producer. This would make the product a generic drug in the public domain while giving the patent holder a windfall.

Both of these strategies would serve the interests of the developer and society as a whole while preventing unethical price gouging.

Conclusion

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.

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.[54] 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.

Patents in force in 2000

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 mousetrap developers discussed above, for example, because it would permit both parties to profit off each other's inventions.

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; and the incentive to design around and improve upon earlier patents.[55]

  • 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 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 build-up for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability. On the other hand, licensing to a large capital investment-financed firm can lead to unethical practices that cause price gouging and even public harm. The patent system needs laws to reform and check the uses of the patent system that have emerged, especially with companies only driven by stock investor profit.

Notes

  1. ↑ WIPO Intellectual Property Handbook: Policy, Law and Use. Chapter 2: Fields of Intellectual Property Protection WIPO 2008
  2. ↑ Patents: Frequently Asked Questions. World Intellectual Property Organization.
  3. ↑ 3.0 3.1 Lemley, Mark A. (2005). Probabilistic Patents. Journal of Economic Perspectives, Stanford Law and Economics Olin Working Paper No. 288 19.
  4. ↑ What are intellectual property rights?. World Trade Organization.
  5. ↑ 5.0 5.1 (25 August 2009) International Business. Financial Times Prentice Hall. ISBN 978-0-273-72372-1. “(...) patents, trademarks and copyrights. These are often referred to as intellectual property rights (...)” 
  6. ↑ 1502 Definition of a Design [R-08.2012]. Manual of Patent Examining Procedure. USPTO.
  7. ↑ General Information About 35 U.S.C. 161 Plant Patents. USPTO.
  8. ↑ Charles Anthon, A Classical Dictionary: Containing An Account of the Principal Proper Names Mentioned in Ancient Authors, And Intended To Elucidate All The Important Points Connected With The Geography, History, Biography, Mythology, And Fine Arts Of The Greeks And Romans Together With An Account Of Coins, Weights, And Measures, With Tabular Values Of The Same, Harper & Bros, 1841, page 1273.
  9. ↑ Phylarchus of Naucratis, "The Deipnosophists, or, Banquet of the Learned of Athenæus", Translated from Ancient Greek by H.Bohn 12:20, p.835
  10. ↑ Robert Patrick Merges. Patent Law and Policy: Cases and Materials. Seventh Edition. Chapter 1.
  11. ↑ Wolfgang-Pfaller.de: Patentgesetz von Venedig (in de, it).
  12. ↑ M. Frumkin, "The Origin of Patents", Journal of the Patent Office Society, March 1945, Vol. XXVII, No. 3, pp 143 et Seq.
  13. ↑ (1990)Book Review. Inventing the Industrial Revolution: The English Patent System, 1660-1800. Articles by Maurer Faculty (666).; (1988) Inventing the industrial revolution : The English patent system, 1660-1800. Cambridge: Cambridge University Press. ISBN 9780521893992. 
  14. ↑ Blackstone's Commentaries.
  15. ↑ The 18th century. Intellectual Property Office.
  16. ↑ History of Copyright. UK Intellectual Property Office (2006).
  17. ↑ James W. Cortada, "Rise of the knowledge worker, Volume 8 of Resources for the knowledge-based economy", Knowledge Reader Series, Butterworth-Heinemann, 1998, p. 141, Template:ISBN, Template:ISBN.
  18. ↑ Gabriel Galvez-Behar,"La République des inventeurs. Propriété et organisation de l'invention en France, 1791-1922", Rennes, Presses universitaires de Rennes, 2008, Template:ISBN.
  19. ↑ Galvez-Behar, Gabriel (2019-05-27). The Patent System during the French Industrial Revolution: Institutional Change and Economic Effects. Jahrbuch für Wirtschaftsgeschichte / Economic History Yearbook 60 (1): 31–56.
  20. ↑ Online at Library of Congress: "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875": First Congress, Session II, chapter VII, 1790: "An Act to Promote the Progress of Useful Arts" {{#invoke:webarchive|webarchive}}.
  21. ↑ Joseph M. Gabriel, Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry. University of Chicago Press (2014)
  22. ↑ 22.0 22.1 "A patent is not the grant of a right to make or use or sell. It does not, directly or indirectly, imply any such right. It grants only the right to exclude others. The supposition that a right to make is created by the patent grant is obviously inconsistent with the established distinctions between generic and specific patents, and with the well-known fact that a very considerable portion of the patents granted are in a field covered by a former relatively generic or basic patent, are tributary to such earlier patent, and cannot be practiced unless by license thereunder." – Herman v. Youngstown Car Mfg. Co., 191 F. 579, 584–85, 112 CCA 185 (6th Cir. 1911)
  23. ↑ Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
  24. ↑ Patent Invalidity Versus Noninfringement. Cornell Law Review 99 (1): 71–128.
  25. ↑ (1990)Evaluating the Validity of a United States Patent. JOM 42 (7).
  26. ↑ (5 January 2012) BUSINESS LAW: THE ETHICAL, GLOBAL, AND E-COMMERCE ENVIRONMENT, 15th, McGraw-Hill/Irwin, 266. ISBN 978-0-07-352498-6. 
  27. ↑ Doctrine of Equivalents (in en).
  28. ↑ Contributory Infringement (in en).
  29. ↑ Inducement of Infringement (in en).
  30. ↑ Halle, Mark. The Exhaustion of Intellectual Property Rights. IISD Commentary.
  31. ↑ DLA Piper Rudnick Gray Cary (2005). Patent Litigation across Europe. cecollect.com.
  32. ↑ PROBLEMS WITH APACHE LICENSE AND OTHERS INVOLVING NON-COPYRIGHT USES.
  33. ↑ Assignee (Company) Name. Help Page. U.S. Patent and Trademark Office (USPTO).
  34. ↑ See Section 39 of the UK Patents Act {{#invoke:webarchive|webarchive}} as an example. The laws across Europe vary from country to country but are generally harmonised. In an Australian context, see University of Western Australia v Gray [2008] FCA 498 AUSTLII
  35. ↑ No, an artificial intelligence can't legally invent something — only 'natural persons' can, says US patent office.
  36. ↑ Article 28.2 TRIPs {{#invoke:webarchive|webarchive}}: "Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.".
  37. ↑ Staff, World Intellectual Property Organization (WIPO) FAQ {{#invoke:webarchive|webarchive}}
  38. ↑ United Kingdom law requiring no explicit authority due to the Supremacy of Parliament.
  39. ↑ Chapter 3, International Phase of the PCT Applicant's Guide (in en).
  40. ↑ Patent Law Treaty (PLT) (in en).
  41. ↑ WTO | intellectual property (TRIPS) - TRIPS and public health: Compulsory licensing of pharmaceuticals and TRIPS.
  42. ↑ Diamond v. Chakrabarty (in en). Chicago-Kent College of Law.
  43. ↑ Bioethics and Patent Law: The Case of the Oncomouse (in en).
  44. ↑ Patent Requirements (BitLaw).
  45. ↑ What does 'patent pending' mean?.
  46. ↑ USPTO web site, Patent Marking and "Patent Pending" (Excerpted from General Information Concerning Patents print brochure) {{#invoke:webarchive|webarchive}}, Consulted on August 5, 2009.
  47. ↑ UK Intellectual Property Office web site, Display your rights {{#invoke:webarchive|webarchive}}, (under "IPO Home> Types of IP> Patents> Managing your patents> Using and enforcing") Consulted on August 5, 2009.
  48. ↑ With the following assumptions: "18 pages (11 pages description, 3 pages claims, 4 pages drawings), 10 claims, patent validated in 6 countries (Germany, United Kingdom, France, Italy, Spain, Switzerland), excl. in-house preparation costs for the patentee" (the costs relate to European patents granted in 2002/2003), in European Patent Office, The cost of a sample European patent – new estimates {{#invoke:webarchive|webarchive}}, 2005, p. 1.
  49. ↑ 49.0 49.1 (2001). Rational Ignorance at the Patent Office. Northwestern University Law Review 95 (4).
  50. ↑ Holland & Bonzagni a full Service IP Law Firm in Western Massachusetts - Holland & Bonzagni, P.C. Registered Patent Attorneys.
  51. ↑ (2008) Patent failure: how judges, bureaucrats, and lawyers put innovators at risk. ISBN 978-0-691-13491-8. . Based on an American Intellectual Property Law Association (AIPLA) survey of patent lawyers (2005), and court documents for a sample of 89 court cases where one side was ordered to pay the other side's legal fees.The containing chapter ('The Costs of Disputes') also tries to quantify associated business costs.
  52. ↑ 52.0 52.1 52.2 52.3 Klinkert, Friedrich (April 2012). "The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid". {{{booktitle}}}.
  53. ↑ Klinkert, Friedrich (April 2012). "The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid". {{{booktitle}}}.
  54. ↑ DLA Piper Rudnick Gray Cary (2005) Patent Litigation across Europe, handout available as per this link.
  55. ↑ 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.

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