Patent

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This article relates to the intellectual property right. A land grant is also called a patent.

Template:Intellectual property A patent is a set of exclusive rights 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 claimed invention. The rights given to the patentee do not include the right to make, use, or sell the invention themselves. The patentee may have to comply with other laws and regulations to make use of the claimed invention. So, for example, a pharmaceutical company may obtain a patent on a new drug but will be unable to market the drug without regulatory approval, or an inventor may patent an improvement to a particular type of laser, but be unable to make or sell the new design without a license from the owner of an earlier broader patent covering lasers of that type.

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

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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. Generally, patents are enforced only through civil lawsuits. 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. Some governments reserve the right to suspend or cancel a patent at will.

A patent gives the right to exclude others from infringing the patent, but does not give the owner of the patent the right to exploit that invention. A patent is therefore an exclusionary right. Many inventions relate to improvements of prior inventions - in order to exploit an improvement it may be necessary to utilise the underlying invention, which may be patented by someone else. 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. Under these circumstances, patent owners may engage in cross-licensing agreements to gain access to each other's patents.

The area covered by a patent is defined by the claims of the patent.

A patent specification must disclose the invention in sufficient detail for the person skilled in the art to work the invention. Insufficient disclosure of the invention may be a ground for revocation of a granted patent.

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Economic rationale

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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 innovations into the public domain for the common good. If inventors 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 corporations 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.

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Criticism

However, 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 useful innovations that build on earlier patented inventions can be inhibited by the high transaction costs from negotiating with the earlier patentees. According to Heller and Eisenberg, 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.

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History of patents

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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[s] of new manufacture... [by] inventors", and this section remains the foundation for patent law in New Zealand and Australia. The Statute of Monopolies was later developed by the courts to produce modern patent law; this innovation was soon adopted by other countries.

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Governing laws

Although patents are fundamentally territorial in their nature, there are currently a number of significant international treaties governing some important aspects of patent law.

The most universal of these is the WTO TRIPs Agreement, to which almost all countries are party. The United States, the countries of the European Union, and Japan are parties to all of the significant treaties. This has led to significant harmonization of patent law worldwide, particularly in the last decade of the 20th century and continuing into the 21st.

Despite recent harmonization, the United States patent laws are unique in several significant respects. The biggest difference is that, if two people apply for a patent on the same invention, the U.S. system awards the patent to the "first to invent", whereas in the rest of the world the "first to file" is awarded the patent. A contest between different inventors over priority is called an "interferences". Another unique aspect of U.S. patent law is that an inventor has a one-year grace period after publication or sale to file a patent application, whereas in most other countries patent rights are lost if an application is not on file when a public disclosure, publication or sale takes place.

As mentioned above, patents are territorial in nature. Thus, to obtain patents in multiple countries it is required to separately file patent applications in each country, or region, where a patent is sought. The Patent Cooperation Treaty (PCT), however, allows applicants to initially file a single international application, which later can be entered into separate countries or regions. Similarly, within Europe, a single patent application procedure is available through the European Patent Office. However, successful applications result in a European patent which is effectively equivalent to a bundle of nationally enforceable and revocable patents (up to 36) rather than a single European-wide patent. Such a European-wide unitary patent, or "Community Patent", has been the subject of discussion at the EU level since the 1970s, with no result so far.

Many of the international treaties are designed to afford some recognition of filing dates to patent applications previously filed in another country. In this respect, the most important treaty is the Paris Convention, dating back to 1883. Typically, inventors are allowed one year (the priority year) from the date of their filing (in a first country) to file the application in other countries.

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.

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Obtaining a patent

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A patent is obtained by filing an 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.

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. Prosecution may also occur after the grant of a patent, for example during opposition or reexamination proceedings.

In order to be granted a patent application must claim an invention that is patentable. Although the definition of this varies between countries, the common requirements are that the invention is is new (novel), useful, and non-obvious (a non-obvious invention is known as an invention with an inventive step in many jurisdictions). Furthmore, the invention must not lie in an excluded area. For example, many patent systems exclude software, business methods, presentation of information, mathematical formulae and laws of nature from patentability.

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See also

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

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Organizations and patent offices

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Treaties, conventions and other legal texts and frameworks

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Other

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External links

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Patent Office Web sites and other regional info

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Patent organizations

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Patent searches and downloads

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Weird and historical patents

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Miscellaneous

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