Flashcards in DL Patents Deck (25)
What is a Patent ?
patent is a document which describes an invention and creates a legal situation in which the invention can normally only be exploited with the authorization of the owner of the patent. Patents protects an invention, and grants to the owner the exclusive rights to use his/her invention for a limited period of time. An invention may be defined as a new solution to a technical problem.
What is the aim of patent?
the aim of a patent system is to encourage economic and technological development by rewarding intellectual creativity.
Can you tell me what the purpose of a patent is?
The purpose of a patent is to provide a form of protection for technological advances. The theory is that patent protection will provide a reward not only for the creation of an invention, but also for the development of an invention to the point at which it is technologically feasible and marketable, and that this type of an incentive would promote additional creativity and encourage companies to continue their development of new technology to the point at which it is marketable, useful to the public and desirable for the public good.
What is the main purpose of a patent?
The purpose of a patent is to provide protection for technological advances (inventions). It provides an award for the disclosure of the creation of something new as well as for the further development, or refinement, of existing technologies. In short, through patents, progress in changing technologies finds incentive to improve.
What sort of things can be patented?
By international agreement, patents are available for any inventions, whether processes or products, in all areas of technology.
Human genes, for instance, cannot be patented. Things that already exist in nature, with very few exceptions, cannot be patented. A perpetual motion machine, which goes against the laws of nature, cannot be patented unless someone can show it working. Then, of course, the old rules are set aside and something new is created.
- Agains public order or morality grounds, can be excluded form the scope of patentability.
patent protects new and useful inventions.
What is the criteria which patent to meet?
- novelty (meaning that the invention must never have been made before, carried out before or used before.)
- inventive step (it must represent a sufficient advance in relation to the state of the art before it was made to be considered worth patenting.)
- industrially applicable
How is an ‘inventive step’ recognised?
An inventive step is necessary to be granted a patent. However, the invention must be enough of an advancement to be considered ‘non-obvious’ by a person having ordinary skill in the art. If it would be obvious to a person having ordinary skill in the given art over the state of technology before the invention, then it is not considered patentable.
How is ‘industrial application’ determined?
In order to be applied and determined patentable under “industrial application”, the invention must be able to be used on a certain scale in practice. The example of a perpetual motion machine was given by the speaker and explained that it cannot be patented (as is the case in most EU countries, purely because it will not work).
The exceptions mentioned in the audio were:
- Things that exist in nature, which are discovered and not invented. One could not, for example, "patent" the discovery of a new planet.
- Machines that defy the laws of nature, such as a perpetual motion machine.
Other common exclusions under national laws, and the TRIPS Agreement, are:
Scientific theories or mathematical methods.
Schemes, rules or methods, such as those for doing business, performing purely mental acts or playing games.
Methods of medical treatment for humans or animals or diagnostics methods (but the products used in the diagnosis could be patented)
Plants and animals other than micro-organisms, and essentially biological processes for the production of plants other than non- biological and microbiological processes.
How to obtain patent?
- file an application
- examination the application
- patent will be granted to the first person who filed patent
What is the right of priority?
on the basis of a regular first application filled in one of the Contracting States, the applicant may, within a period of 12 months, apply for protection in any of the other CS. hese later applications will then be regarded as if they had been filed on the same day as the first application. In other words, these later applications will have priority over applications which may have been filed during the same period of time by other persons for the same invention.
what benefits a patent confers, if the invention has to be disclosed?
is that for the period of protection the patent holder may exclude other from making, using, offering for sale. selling, and importing the invention claimed in the patent.
Can you then summarize the advantages of taking
out a patent?
The advantages of taking out a patent are very specifically and technically the fact that the owner of a patent can exclude all others in the territory covered by the patent from making, using, selling, offering for sale or importing the invention. That does not necessarily give the inventor or the owner of the patent the right to use the invention, if for instance such use would be illegal – as the use of a gambling machine would once have been – but the owner of the patent can prevent others from marketing and profiting from the invention for a period of years.
What is the term for patent ?
Is typically 20 years from the date on which the application is filed and what that does is give the developer of the technology the right to have it to himself for a certain number of years in exchange for full disclosure to the public of how to use it. When the patent rights expire, the technology becomes public property, and the public is free to use it for their own good
Is that the same for every country in the world?
Yes. It is now provided by international treaty that the term has to be at least 20 years from the filing date of the patent application.
When can be used Exclusive rights of a patent owner without authorization?
the regime of compulsory licensing prevents the abuses which might result from the exclusive rights conferred by a patent. This regime may also be applied in case of non-use of the patented invention within a prescribed period (generally four years from the filing date of application for patent, or three years from the issue of patent).
As provided under the TRIPS Agreement (Article 31), a number of conditions and circumstances must be respected before granting a compulsory license to a third party.
Who is authorized to exclude all others from making, using, selling, offering for sale or importing an invention?
The owner of the patent can exclude others from making, using, selling, offering for sale or importing the patented invention and can also exclude commercialization. This exclusion is only applicable in the countries where the invention is protected by a patent.
Enforcement of Patents
- the holder that must seize the initiative in the face of potential infringement.
- Detection of potential or actual infringements, and bringing these to the infringer's attention rests exclusively with the patent holder.
- In a majority of situations, a polite letter giving notice of the existence of the patent is sent. Carrying the implication that a lawsuit might follow, such letters often prove very successful, leading to either a suppression of infringement or a conclusion of a successful licensing arrangement.
There are, however, cases in which no mutually advantageous negotiated solution can be found, even after lengthy attempts. During the course of an infringement action, in the pre-trial phase, negotiations may still take place, often through use of a conciliator or arbitrator. Interestingly, settlements often include the earlier-mentioned license.
As was said before, the issue of enforcement is deep and complex; you may want to pursue this subject further within the context of the domestic law of the country where you are situated.
In order to have protection in lots of different countries, a patent is required in each of them. So you may wonder if it is possible to obtain a worldwide patent. Listen to the audio to find the answer.
Is it possible to get a worldwide patent?
In the current state of the international patent system, no.
The patent system is still a territorial system
we have the Patent Cooperation Treaty, which provides for the filing of a single international application that can become a multitude of national applications, not actual patents but applications, and they are then examined in each of the countries designated.
you would pay that annual fee in every country in which you wanted the patent to operate?
That’s right. If you have patents in ten countries, you have to pay the maintenance fees in each of those ten countries, because if ever you failed to pay in one of them, your patent would lapse and you would lose
Are there any other ways of protecting an invention if you don't want to take out a patent,
for whatever reason
The patent is the most effective way of protecting an invention, but, as I said before, patent rights are granted in return for the inventor’s full disclosure of the technology to the public.
Another effective way of obtaining protection is to keep the technology secret, and to rely on what we refer to as trade secrets, to keep information concerning the invention confidential.
The difficulty of that method is that, once the product is put on the market and can be dismantled, the secrets can be learned merely by looking at the product, and the trade secret protection is lost. With a patent, it doesn’t matter whether someone else knows how to make your product, indeed they will know simply from reading your patent application. So, no matter how public the information is, if you have a patent you will be protected. Trade secret protection is still available, however, and is very suitable in particular, for what is referred to as the know-how, namely the technical expertise required to use a given technology in the most effective way. And very often, the technology itself will not be protected by patents, because it forms part of the expertise of people who are skilled in the art, and keeping the know- how as a trade secret is a way of protecting your technology.
Give an example of ‘trade secret protection’ and what it protects?
The speaker discussed how some trade secrets are maintained. For example, Coca-Cola® has done this for over 100 years and as long as it continues to successfully maintain the secrecy of its formula, then the intellectual property protection will endure even longer than would a patent. Trade secrets protect the know-how and technical expertise, for example, to use particular information in the most useful ways.
Characteristics that an invention must have are:
- it must be new or novel;
- it must involve an inventive step,
- it must be capable of industrial application.