A patent is a set of
exclusive rights granted by a stateto an inventor or his assignee for a fixed period of time in exchange for a disclosure of an invention.
The procedure for granting patents, the 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 defining the invention which must be new, inventive, and useful or industrially applicable. In many countries, certain subject areas are excluded from patents, such as business methods and mental acts. The exclusive right granted to a patentee in most countries is the right to prevent or exclude others from making, using, selling, offering to sell or importing the invention.
The term "patent" usually refers to a right granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. The additional qualification "utility patents" is used in countries such as the United States to distinguish them from other types of patents but should not be confused with
utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.
Some other types of intellectual property rights are referred to as "patents" in some jurisdictions:
industrial design rightsare called "design patents" in some jurisdictions (they protect the visual design of objects that are not purely utilitarian), plant breeders' rightsare sometimes called "plant patents", and utility models or " Gebrauchsmuster" are sometimes called "petty patents" or "innovation 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.
Certain grants made by the monarch in pursuance of the royal prerogative were sometimes called "
letters patent", which was a government notice to the public of a grant of an exclusive right to ownership and possession. These were often grants of a patent-like monopoly and predate the modern British origins of the patent system. For other uses of the term "patent" see Land patents, which were land grants by early state governments in the USA. This reflects the original meaning of "letters patent" that had a broader scope than current usage.
The word "patent" originates from the
Latin"patere", which means "to lay open" (i.e., to make available for public inspection), and more directly as a shortened version of the term " letters patent", which originally denoted a royal decreegranting exclusive rights to a person.
A patent is not a right to practice or use the invention."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)] Rather, a patent provides the
rightto "exclude others" from making, using, selling, offering for sale, or importing the patented inventionfor the term of the patent, which is usually 20 years from the filing date. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the 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.
The rights conveyed by a patent vary country-by-country. For example, in the United States, a patent covers research, except "purely philosophical" inquiry. A U.S. patent is infringed by any "making" of the invention, even a making that goes toward development of a new invention — which may itself become subject of a patent. In contrast, Australian law permits others to build on top of a patented invention, by carving out exceptions from infringement for those who conduct
research(e.g. for academic purposes) on the invention. [cite web |title=What is a Patent? |work=Patents |publisher= IP Australia|year=2006 |url=http://www.ipaustralia.gov.au/patents/what_index.shtml |accessdate=2007-08-12]
A patent being an exclusionary right does not, however, necessarily give the owner of the patent the right to exploit the patent. For example, many inventions are improvements of prior inventions which may still be covered by someone else's patent. If an inventor takes an existing, patented
mouse trapdesign, 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.
Some countries have "working provisions" which require that the invention be exploited in the jurisdiction it covers. Consequences of not working an invention vary from one country to another, ranging from revocation of the patent rights to the awarding of a compulsory license awarded by the courts to a party wishing to exploit a patented invention. The patentee has the opportunity to challenge the revocation or license, but is usually required to provide evidence that the reasonable requirements of the public have been met by the working of invention.
Patents can generally only be enforced through civil lawsuits (for example, for a U.S. patent, by an action for patent infringement in a United States federal court), although some territories (such as
Franceand Austria) have criminal penalties for wanton infringement. [ DLA Piper Rudnick Gray Cary(2005) "Patent Litigation across Europe", handout available as per [http://cecollect.com/ve/ZZf3096aBBft91T940 this link] .] Typically, the patent owner will seek monetary compensation for past infringement, and will seek an injunctionprohibiting 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 the 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
patentabilityin the relevant country. Whilst 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.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 common 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-licensingagreements in order to gain access to each other's patents. A cross license agreement could be desirable to the mouse trap developers discussed above, for example, because it would permit both parties to profit off each other's inventions.
United Nations Statistics Divisionreports that the United States was the top market for patents in force in 2000 closely followed by the EU and Japan.
In most countries, both natural persons and corporate entities may apply for a patent. The entity or entities then become the owners of the patent when and if it issues. However, it is nearly always required that the inventor or inventors be named and an indication be given on the public record as to how the owner or owners acquired their rights to the invention from the inventor or inventors.
In the United States, however, only the natural person(s) (i.e. the inventor/s) may apply for a patent. If a patent issues, then each person listed as an inventor owns the patent separately from the other. For example, if two inventors are listed on a patent, then each one may grant licenses to the patent independently of the other, absent an agreement to the contrary.
It is common in the United States for inventors to assign their ownership rights to a corporate entity. [cite web | title=Assignee (Company) Name |url=http://www.uspto.gov/web/patents/patog/week39/OG/help/help.htm#Assignee%20(Company)%20Name |work=Help Page |publisher= U.S. Copyright and Trademark Office (USPTO) | accessdate=2007-07-25 ] Inventors that work for a corporation, for example, often are required to assign their ownership rights to their corporation as a condition of their employment. Independent inventors often assign their ownership rights to a single entity so that only one entity has the right to grant a license.
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. The third parties then own the patents as if they had originally made the inventions themselves.
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, therefore, territorial in nature.
Commonly, a nation forms a
patent officewith 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.
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.
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 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. Because the right to a patent is intensely date-driven, this right is fundamental to modern patent usage.
The authority for patent statutes in different countries varies. 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 Codeand created the United States Patent and Trademark Office. In the UK, substantive patent law is contained in the Patents Act 1977 as amended. [United Kingdom law requiring no explicit authority due to the Supremacy of Parliament.]
In addition, there are international treaty procedures, such as the procedures under the
European Patent Convention(EPC) [administered by the European Patent Organisation(EPOrg)] , and the Patent Cooperation Treaty(PCT) (administered by WIPOand covering 137 countries), that centralise some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO, OAPI, the analogous treaties among African countries.
Application and prosecution
A patent is requested by filing a written application at the relevant patent office. The application contains a description of how to make and use the invention and, under some legislations, if not self evident, the usefulness of the invention. The patent application may or must also comprise "claims". Claims define the invention and embodiments for which the applicant wants patent rights.
To obtain a patent, an applicant must provide a written description of the invention in sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention. This written description is provided in what is known as the patent specification, which is often accompanied by illustrating drawings. Some countries, such as the United States, further require that the specification disclose the "best mode" of the invention (i.e., the most effective way, to the best of the inventor's knowledge, to make or practice the invention). [cite web | title=What are the steps in getting a patent? |url=http://www.wolfgreenfield.com/media/news/news.9.pdf |work=Questions and Answers on Patents |publisher= Wolf, Greenfield & Sacks, P.C. | accessdate=2007-06-05 ] In addition, at the end of the specification, the applicant must provide one or more claims that define what the applicant regards as their invention. A claim, unlike the body of the specification, is a description designed to provide the public with notice of precisely what the patent owner has a right to exclude others from making, using, or selling. Claims are often analogized to a deed or other instrument that, in the context of real property, sets the metes and bounds of an owner's right to exclude. The claims define what a patent covers. A single patent may contain numerous claims, each of which is regarded as a distinct invention.
For a patent to be granted, that is to take legal effect, the patent application must meet the legal requirements related to
patent applicationhas been filed, most patent offices examine the application for compliance with the requirements of the relevant patent law. If the application does not comply, the objections are usually communicated to the applicant or their patent agent or attorney, who can respond to the objections to attempt to overcome them and obtain the grant of the patent.
In most countries, there is no requirement that the inventor build a prototype or otherwise reduce his or her invention to actual practice in order to obtain a patent. The description of the invention, however, must be sufficiently complete so that another person with ordinary skill in the art of the invention can make and use the invention without undue experimentation.
Once granted the patent is subject in most countries to renewal fees, generally due each year, [the US being a notable exception; see the
Maintenance fee (patent)article for more details] to keep the patent in force.
Egbert v. Lippmann,"104 U. S. 333 (1881) (the "corset case"), the United States Supreme Courtaffirmed a decision that an inventor who had "slept on his rights for eleven years" without applying for a patent could not obtain one at that time. This decision has been codified as 35. U.S.C. §102, which bars an inventor from obtaining a patent if the invention has been in public use for more than one year prior to filing.
There are four primary incentives embodied in the patent system: to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to
design aroundand improve upon earlier patents. [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.]
#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 ideas underlying traditional property rights.
#In accordance with the original definition of the term "patent," patents facilitate and encourage disclosure of
innovations into the public domainfor 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.
#In many industries (especially those with high
fixed costs and either low marginal costs or low reverse engineering costs — computer processors, software, and pharmaceuticals for example), 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.Clarifyme|date=March 2008
One effect of modern patent usage is that a small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital from licensing the invention and may allow innovation to occur because he or she may choose to not manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability. [Stim, Rishand, "Profit from Your Idea: How to Make Smart Licensing Decisions", ISBN 1413304508 (Published 2006)]
The costs of preparing and filing a patent application, prosecuting it until grant and maintaining the patent vary from one legislation 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 Euro. [ 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, [http://www.european-patent-office.org/epo/new/cost_analysis_2005_en.pdf "The cost of a sample European patent - new estimates"] , 2005, page 1. ] Since the London Agreement entered into force on May 1, 2008, this estimation is however no longer up-to-date, since fewer translations are required.
Patents from time to time have been criticized for being granted on already known inventions. In 1938, for example, R. Buckminster Fuller, inventor of the
geodesic domewrote: [ Nine Chains to the Moon, Chapter 36, "Throwing in the Patent Sponge", p 277]
:"At present (1938), the (US patent) files, are so extraordinarily complex and the items so multitudinous that a veritable army of governmental servants is required to attend them and sort them into some order of distinguishable categories to which reference may be made when corresponding with patent applicants for the purposes of examiner citation of "prior art" disclosure. This complexity makes it inevitable that the human-equation involved in government servants relative to carelessness or mechanical limitations should occasion the granting of multitudes of "probably" invalid patent claims." "
Patents have also been criticized for conferring a "negative right" upon a patent owner, permitting them to exclude competitors from using or exploiting the invention, even if the competitor subsequently develops the same invention independently. This may be 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). [cite web |url=http://www.oblon.com/Pub/GholzFirsttoFile.html |title=Charles L. Gholz, Journal of the Patent and Trademark Office Society, 82 JPTOS 891, December 2000. |accessdate=2008-02-15]
Patents may hinder innovation as well in the case of "troll" entities. A holding company, pejoratively known as a "
patent troll", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself. [cite web |url=http://www.worldwidewords.org/turnsofphrase/tp-pat1.htm |title=Patent troll definition and description |accessdate=2008-02-15]
Another theoretical problem with patent rights was proposed by law professors Michael Heller and Rebecca Sue Eisenberg in a 1998 "Science" article. [Heller, M.A., & Eisenberg, R.S. (1998). Can Patents Deter Innovation? The Anticommons in Biomedical Research. Science, 280(1 May 1998), 280, 698-701.] Building from Heller's theory of the
tragedy of the anticommons, the professors postulated that intellectual property rights may become so 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.
In 500 BC, in the Greek city of
Sybaris(located in what is now southern Italy), "encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year." [ 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.]
Patents in the modern sense originated in 1474, when the
Republic of Veniceenacted 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 the right to prevent others from using them. [ de icon Helmut Schippel: Die Anfänge des Erfinderschutzes in Venedig, in: Uta Lindgren (Hrsg.): Europäische Technik im Mittelalter. 800 bis 1400. Tradition und Innovation, 4. Aufl., Berlin 2001, S.539-550 ISBN 3-7861-1748-9. cite web | url=http://www.wolfgang-pfaller.de/venedig.htm | title=Wolfgang-Pfaller.de: Patentgesetz von Venedig |language=German / Italian]
England followed with the Statute of Monopolies in 1623 under King James I, which declared that patents could only be granted for "projects of new invention." During the reign of Queen Anne (1702–1714), the lawyers of the English Court developed the requirement that a written description of the invention must be submitted. [cite web |title=History of Copyright |publisher=
UK Intellectual Property Office|year=2006 |url=http://www.patent.gov.uk/about-history-copy.htm |accessdate=2007-08-12] These developments, which were in place during the Colonial period, formed the basis for modern English and United States patent law.
In the United States, during the colonial period and
Articles of Confederationyears (1778–1789), several states adopted patent systems of their own. The first Congress adopted a Patent Act, in 1790, and the first patent was issued under this Act on [http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=%2Fnetahtml%2FPTO%2Fsearch-adv.htm&r=1&p=1&f=G&l=50&d=PALL&S1=1790$.PD.&OS=ISD/$/$/1790&RS=ISD/1790$$ July 31, 1790] (and the subject matter of that patent was for the making of potash, and so on).
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