patent law Flashcards
(11 cards)
patent requirements, explain each(5)
- NOVELTY: the invention must be new worldwide, in every form
- INVENTIVE STEP: “not obvious to a person skilled in the art”, in practice the EPO has a three steps process - a) establish the objective technical problem to be sold b) determine the closest prior art c) would the invention have been obvious?
! usually increases in speed or accuracy do not count
- INDUSTRIAL APPLICABILITY: can be made or used in any kind of industry (not a meditation method)
- SUFFICIENT DISCLOSURE: detailed description of the product / process + enable others to carry it out
- LAWFULNESS: not the subject matter of other IPRs **or belong **to the public domain
types of invention
product or process
improvement, combination (combining existing elements), or translation (applying existing technology to a new field)
the dependent patent
a second inventor significantly improves the efficiency of a previous invention
he is free to file a dependent patent
needs the authorization of the previous patentee to commercialize
more on LAWFULNESS: when is it the subject matter of other IPRs or belongs to the public domain?
Subject matter of other IPRs:
- aesthetic creations
- schemes/rules
- computer programs
- databases
- plant varieties
Belong to the public domain:
- ideas
- laws of nature
- living organism
- surgery methods
what is the Supplementary Protection Certificate (SPC)?
patents last 20 years from the date of filing the appplication.
the SPC an extension corresponding to the time elapsed between the patent application and the administrative approval
patent scope: process vs product
Process prohibit the:
use
Product prohibit the:
use
selling
manufacturing, commercializing
importing
on the contrary, they can
stock
transport
apply for administrative permits
how do you prove the infringement?
judges must interpret the patent’s claims and
a) for very similar products:
presume the same process was used and ask the defendant to prove an alternative process
b) or apply the doctrine of equivalents (the product/process does not fall within the literal scope of the patent):
- either does the SAME FUNCTION, in the SAME WAY, and gets SAME RESULT
or
- it’s obvious to a person skilled in the art that the same result of the patent could be achieved by the alternative method
limitations to patent rights
- private prior use
- non commercial use
- experimental use or scientific research
- for regulatory approval
- government purposes
- situations of the exhaustion of patent rights (once the product has been lawfully placed on the market)
exception for products significantly modified
the exhaustion doesn’t apply
how to loose a patent
not paying the fees.
the patent will lapse or
become invalid in the designated states where the fees were not paid.
Once a patent lapses due to non-payment, it is no longer enforceable in
the affected country or region.
what if you do not implement a patent?
- no automatic loss: valid until maintenance fees are paid
- risk of compulsory licensing (EU), if the patent is not exploited… usually within 3 years… to avoid patent hoarding
