Patent

Intellectual property law

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Authors' rights · Intellectual property · Copyright Database right · Indigenous intellectual property Industrial design rights · Geographical indication Patent · Related rights · Trademark Trade secret · Utility model

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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.

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.

Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO member states for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application. Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years.

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 and overview of the patent granting systems

Here we start with the late nineteenth century quotation from Samuel L. Clemens, known as Mark Twain who wrote:

"…….a country without a patent office and good patent laws was just a crab and couldn't travel anyway but sideways or backwards…."(Twain, 1889 ).

Etymology

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

Definition(s)of a patent

Definitions presumably slightly differ country from country but , Thomas Jefferson’s 1793 Act is notable for its definition of what constitutes patentable subject matter in the United States, which definition, in its basic tenets and some tightening in 1952 ( see “History” part below ), is almost unchanged up till now:

“…..A patent may be granted to any person for the invention or discovery of any new and useful art, machine, manufacture, or composition of matter or any new and useful improvement thereto; for the invention of asexual reproduction of any distinct and new variety of plant, other than a tuber-propagated plant; or for any new, original, and ornamental design for an article of manufacture….”

( NOTE: In 1980, such patent coverage was also extended to the products of genetic engineering, including seeds, plants, and cultivars, as well as to new genetic engineering methods themselves. )

In general, a patent affords protection against infringement only within the jurisdiction of the government by which it is issued, and it is therefore necessary to take out a patent in every country in which protection is desired. Patent statutes have been enacted in most nations; the most important international treaty is the International Convention for the Protection of Industrial Property (1883; since revised).

What is not a patent in the sense of this overview

Some other types of intellectual property rights are referred to as "patents" in some jurisdictions: industrial design rights are called "design patents" in some jurisdictions ( they protect the visual design of objects that are not purely utilitarian ), plant breeders' rights are sometimes called "plant patents," and utility models or Gebrauchsmuster are sometimes called "petty patents."

This article relates primarily to the patent for an invention, although so-called petty patents and utility models may also be granted for inventions. Land grants were sometimes called "letters patent," which was a government notice to the public of a grant of an exclusive right to ownership and possession.

Brief history of European and American patent ( granting ) evolution

There is evidence that something like patents was used in some ancient Greek cities. The creator of a new recipe was granted an exclusive right to make the food for one year, and a similar practice existed in some Roman cities.

In medieval times, the grant of exclusive rights "monopolies" by the sovereign had been a convenient way in which the sovereign could raise money without the need to resort to taxation. Such grants were common in many European countries. Some of these, for example in mining regions or in respect of production of certain textiles, seem to had had a provable relation to innovations.

The first law providing for the grant of exclusive rights for limited periods to the makers of inventions in general as a deliberate act of economic policy seems to have been in Venice in 1474. Venice, in those days, lost most of its trading empire in the Eastern Mediterranean and consequently had to refocus its economy on manufacturing rather than trade. She adopted a number of measures to establish and maintain a preeminence in manufacture including laws prohibiting emigration of skilled artisans and the export of certain materials, while at the same time encouraging the immigration of skilled workers from other countries (Laddas & Parry, 2003.)

In England, in 1624 as part of the skirmishing between Parliament and the Crown leading up to the English Civil War, the English Parliament passed the statute of monopolies. This had the effect of limiting the power of the Crown to the grant of monopolies to making such grants only to inventions for limited periods (14 years—the duration of two training periods for craft apprentices) and most importantly only for "manners of new manufacture" that were introduced into the realm by the recipient of the monopoly. Such grants were, however, conditioned on their not being "mischievous to the state" (for example by raising prices of commodities) or "generally inconvenient."

This original English approach, which was followed in the American Constitution, was to place emphasis on the advantage to society as a whole of developing new inventions.(ibid. 2003.)

However, section 1 of the French law of 1791 took a somewhat different approach:

"....All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years....."

The emphasis here was on the inventor having property in his discovery, a copyright—an emphasis on the rights in the invention rather than on the benefits to society (ibid, 2003.)

Where the Anglo Saxon approach is focused heavily on the bundle of economic rights associated with control over whether others are entitled to copy a work, whereas the French approach focuses more heavily on the moral rights of authors - a fact that is emphasized by the fact that the word generally used as the French translation of the word "Copyright" is "droit d'auteur" (literally Author's Rights).

Modern thinking on the rationale for a patent system effectively sees this as a contract between the invention and society at large. This was well expressed in a report to the French Chamber of Deputies in the debates preceding the adoption of the French Patent Law of 1844 (a law that remained in effect with little change up to the 1960's):

"…..Every useful discovery is, in Kant's words, 'the presentation of a service rendered to Society'. It is, therefore, just that he who has rendered this service should be compensated by Society that received it. This is an equitable result, a veritable contract or exchange that operates between the authors of a new discovery and Society. The former supply the noble products of their intelligence and Society grants to them in return the advantages of an exclusive exploitation of their discovery for a limited period……."

As Abraham Lincoln once put it:

"…The Patent System added the fuel of interest to the fire of genius…..."

The United States Constitution, on which U.S. Patent Law depends, was drafted during the industrial revolution at a time when the impact of patents was first being seriously felt in England. A pro-patent climate endured in the United States through much of the nineteenth century (ibid, 2003.)

File:USpatents18002004.JPG

U.S. Patents granted, 1800–2004.

In 1849 responsibility for the U.S. Patent Office was transferred from the State Department to the Department of the Interior.

Since the end of the nineteenth century and the twentieth century have seen a number of climate changes. In the last two decades of the nineteenth century, there was a period of economic depression and increasing concern about the power of "big business" leading to the passage of the Sherman Antitrust Act in 1890. This climate was reflected in the patent field by an increasing tendency of the courts to hold patents held by corporations invalid.

Following the Evarts Act in 1891 that created the Circuit Courts of Appeals, in 1893 appeals from the Patent Office were transferred to the newly created Court of Appeal for the District of Columbia.

The basic structure of the current law was adopted in 1952 [1]. The two major changes made at that time were to include in the statute a requirement that to be patentable an invention had not only to be novel, thereby codifying a century of case law, and to include a definition of infringement, which had hitherto been left to the courts [2].

Other changes included a minor change in the definition of what constituted patentable subject matter by replacing the eighteenth-century word "art" by "process"; an express statement that when an invention involved a combination of elements it was possible to define such elements in functional terms (i.e. as a "means for" doing something) [3]; a relaxation of the formalities relating to applications by joint inventors and where an inventor cannot be found or refuses to apply for a patent even though bound by contract to do so; imposed a maximum time limit of two years within which to request a reissue of a patent with broadened claims; abrogated the common-law rule that a patent could not be partially valid and permitted actions to proceed on the basis of valid claims even if there were invalid claims in the same patent.

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

Let us start with the definition: 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.)

Infringement

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.

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.

Infringement can be relatively easy to detect and defeat when the accused product is identical to the patented product.

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.)

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.

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.)

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.

• Doctrine of Equivalents

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.

EXAMPLE: Inconsequential changes in the patented device, which though adding nothing, would take his imitation beyond the reach of the law.

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:

"…….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……."

In the same tenor one of the recent court rulings states, that:

”… 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)

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.

• The All Elements Rule

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.

Patent law has developed restraints on the doctrine of equivalents to prevent this problem. One fundamental restraint is the All Elements Rule.

The All Elements Rule refines the application of the doctrine of equivalents in two important ways:

• 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.

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."

• 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.

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.

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.

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.

• Prosecution History Estoppel

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.

A second restraint on a patentee's use of the doctrine of equivalents to unfairly expand patent rights is called prosecution history estoppel.

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.

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

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. 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.

• 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 and References

• [1] Part of the impetus for the revision was the adoption of the United States Code system in 1926. When the code was established prior laws had been compiled into it but nor re-enacted. Subsequently it was felt desirable to clean up and re-enact each title of the code as positive law. In 1952 it was patents turn.
• [2] The definition specifically stated that "patentability shall not be negatived by the manner in which the invention was made," apparently to ensure that issues of obviousness were assessed objectively and that invention did not have to be the result of a "flash of genius."
• [3] This provision was intended as a partial statutory overruling of the Supreme Court's decision in Halliburton Oil Well Cementing Co v. Walker 71 USPQ 175 (1946) which had held that any definition of a component of a claim by the function that it was to perform lacked clarity and constituted an "overhanging threat" which could serve to "frighten[] from the course of experimentation ... inventive genius [which] may evolve many more devices to accomplish the same purpose."
• Gelman, Lauren, “Claim Term is Defined by Specification and Prosecution History rather than Dictionary Definition,” Stanford Law School, The Center for Internet and Society, 2005
• Ladas & Parry, LLP, “A Brief History of the Patent Law of the United States” - revised 7/12/2003
• Nelson, Philip, M.,”Definition for "limitation" in the context of prosecution history estoppel and the all elements rule…,” Brigham Young University Law Review, 2003
• Twain, Mark, A Connecticut Yankee in King Arthur's Court, 1889

External links

• List of Patent Offices maintained by WIPO

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