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Wikipedia

Patent

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 time in exchange for publishing an enabling disclosure of the invention.[1] 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.[2]: 17 

A patent issued by the U.S. Patent and Trademark Office

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.

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.[3] 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.[4]

Definition

The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents, which were land grants by early state governments in the US, and printing patents, a precursor of modern copyright.

In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent is often referred to as a form of intellectual property right,[5][6] an expression which is also used to refer to trademarks and copyrights,[6] and which has proponents and detractors (see also Intellectual property § The term "intellectual property"). Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US,[7] plant breeders' rights are sometimes called plant patents,[8] and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents.

The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular types of patents for inventions include biological patents, business method patents, chemical patents and software patents.

History

 
The Venetian Patent Statute, issued by the Senate of Venice in 1474, and one of the earliest statutory patent systems in the world.

Although there is some evidence that some form of patent rights was recognized in Ancient Greece in the Greek city of Sybaris,[9][10] the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. However, recent historical research has suggested that the Venetian Patent Statute of 1474 was inspired by laws in the Kingdom of Jerusalem that granted monopolies to developers of novel silk-making techniques.[11] Patents were systematically granted in Venice as of 1474, where they issued a decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years.[12] As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.[13]

The English patent system evolved from its early medieval origins into the first modern patent system that recognised intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish.[14] By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies.[15] After public outcry, King James I of England (VI of Scotland) 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 (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere.

 
James Puckle's 1718 early autocannon was one of the first inventions required to provide a specification for a patent.

Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne, patent applications were required to supply a complete specification of the principles of operation of the invention for public access.[16] Legal battles around the 1796 patent taken out by James Watt for his steam engine, established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented.[17]

The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.[18]

 
U.S. patents granted, 1790–2010.[19]

The modern French patent system was created during the Revolution in 1791.[20] Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844 – patent cost was lowered and importation patents were abolished.[21]

The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts".[22] The first patent under the Act was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision to the patent law was passed. The 1836 law instituted a significantly more rigorous application process, including the establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted.[23]

Gender gap in patents

 
Share of women amongst listed inventors and share of PCT applications with at least one woman as inventor for the top 20 origins 2020.[24]

In the US, women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 did refer to "she",[25] married women were unable to own property in their own name and were also prohibited from rights to their own income, including income from anything they invented.[26] This historical gender gap has lessened over the course of the 20th and 21st centuries, however, disparity is still prevalent.[27] In the UK, for example, only 8% of inventors were female as of 2015.[28] This can partly be attributed to historical barriers for women to obtain patents,[26] as well as to the fact that women are underrepresented in traditionally "patent-intensive" sectors, particularly STEM sectors.[27] Marcowitz-Bitton et al argue that the gender gap in patents is also a result of internal bias within the patent system.[27]

Law

Effects

A patent does not give a right to make or use or sell an invention.[1] Rather, a patent provides, from a legal standpoint, the right to exclude others[1] from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, which is usually 20 years from the filing date[4] subject to the payment of maintenance fees. From an economic and practical standpoint however, a patent is better and perhaps more precisely regarded as conferring upon its proprietor "a right to try to exclude by asserting the patent in court", for many granted patents turn out to be invalid once their proprietors attempt to assert them in court.[29] A patent is a limited property right the government gives inventors in exchange for their agreement to share 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.

A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.[1] If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.

Some countries have "working provisions" that require 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.

Challenges

In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called opposition proceedings. It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that the patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not patentable subject matter at all; the claimed subject matter was actually not new, or was obvious to the person skilled in the art, at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons.[30][31]

Infringement

Patent infringement occurs when a third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a national basis. The making of an item in China, for example, that would infringe a US patent, would not constitute infringement under US patent law unless the item were imported into the US.[32]

Infringement includes literal infringement of a patent, meaning they are performing a prohibited act that is protected against by the patent. There is also the Doctrine of Equivalents. This doctrine protects from someone creating a product that is basically, by all rights, the same product that is protected with just a few modifications.[33] In some countries, like the United States, there is liability for another two forms of infringement. One is contributory infringement, which is participating in another's infringement. This could be a company helping another company to create a patented product or selling the patented product which is created by another company.[34] There is also inducement to infringement, which is when a party induces or assists another party in violating a patent. An example of this would be a company paying another party to create a patented product in order to reduce their competitor’s market share.[35] This is important when it comes to gray market goods, which is when a patent owner sells a product in country A, wherein they have the product patented, then another party buys and sells it, without the owner’s permission, in country B, wherein the owner also has a patent for the product. With either national or regional exhaustion being the law the in country B, the owner may still be able to enforce their patent rights; however, if country B has a policy of international exhaustion, then the patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country.[36]

Enforcement

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 district court), although some countries (such as France and Austria) have criminal penalties for wanton infringement.[37] Typically, the patent owner seeks monetary compensation (damages) for past infringement, and seeks an injunction that prohibits the defendant from engaging in future acts of infringement, or seeks either damages or injunction. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (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 accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim. A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for patentability in the relevant country. Although 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.

Patent licensing agreements are contracts in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, or import the claimed invention, usually in return for a royalty or other compensation.[38][39] It is common for companies engaged in complex technical fields to enter into multiple 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 share the benefits of using each other's patented inventions. Freedom Licenses like the Apache 2.0 License are a hybrid of copyright/trademark/patent license/contract due to the bundling nature of the three intellectual properties in one central license. This can make it difficult to enforce because patent licenses cannot be granted this way under copyright and would have to be considered a contract.[40]

Ownership

In most countries, both natural persons and corporate entities may apply for a patent. In the United States, however, only the inventor(s) may apply for a patent, although it may be assigned to a corporate entity subsequently[41] and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company.[42] Applications by artificial intelligence systems, such as DABUS, have been rejected in the US, the UK, and at the European Patent Office on the grounds they are not natural persons.[43]

 
The plate of the Martin ejector seat of a military aircraft, stating that the product is covered by multiple patents in the UK, South Africa, Canada and pending in "other" jurisdictions. Dübendorf Museum of Military Aviation.

The inventors, their successors or their assignees become the proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor(s).

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.[44] The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves.

Governing laws

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 granted by national or regional patent offices,[45] i.e. national or regional administrative authorities. A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. When a patent application is published, the invention disclosed in the application becomes prior art and enters the public domain (if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally becoming prior art against anyone (including the applicant) who might seek patent protection for the invention in those countries.

Commonly, a nation or a group of nations forms a patent office with 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.

The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.[46] 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 Code and created the United States Patent and Trademark Office.

There is a trend towards global harmonization of patent laws, with the World Trade Organization (WTO) being particularly active in this area.[47][non-primary source needed] 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.

Internationally, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) [constituting the European Patent Organisation (EPOrg)], that centralize some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO and OAPI, the analogous treaties among African countries, and the nine CIS member states that have formed the Eurasian Patent Organization. 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 Paris Convention set a minimum patent protection of 20 years, but 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. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30 month priority for applications as opposed to the standard 12 the Paris Convention granted. A patent application filed under the PCT is called an international application, or PCT application. The steps for PCT applications are as follows:

1. Filing the PCT patent application

2. Examination during the international phase

3. Examination during the national phase.[48]

Alongside these international agreements for patents there was the Patent Law Treaty (PLT). This treaty standardized the filing date requirements, standardized the application and forms, allows for electronic communication and filing, and avoids unintentional loss of rights, and simplifies patent office procedures.[49]

Sometimes, nations grant others, other than the patent owner, permissions to create a patented product based on different situations that align with public policy or public interest. These may include compulsory licenses, scientific research, and in transit in country.[50]

Application and prosecution

Before filing for an application, which must be paid for whether a patent is granted or not, a person will want to ensure that their material is patentable. Patentable material must be synthetic, meaning that anything natural cannot be patented. For example, minerals, materials, genes, facts, organisms, and biological processes cannot be patented, but if someone were to apply an inventive, non-obvious, step to them to synthesize something new, the result could be patentable. That includes genetically engineered strains of bacteria, as was decided in Diamond v. Chakrabarty.[51] Patentability also depends on public policy and ethical standards.[52] Additionally, patentable materials must be novel, useful, and a non-obvious inventive step.[53]

A patent is requested by filing a written application at the relevant patent office. The person or company filing the application is referred to as "the applicant". The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention. In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided.

The application also includes one or more claims that define what a patent covers or the "scope of protection".

After filing, an application is often referred to as "patent pending". While this term does not confer legal protection, and a patent cannot be enforced until granted, it serves to provide warning to potential infringers that if the patent is issued, they may be liable for damages.[54][55][56]

Once filed, a patent application is "prosecuted". A patent examiner reviews the patent application to determine if it meets the patentability requirements of that country. If the application does not comply, objections are communicated to the applicant or their patent agent or attorney through an Office action, to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an opposition proceeding between grant and issuance, or post-issuance.

Once granted the patent is subject in most countries to renewal fees to keep the patent in force. These fees are generally payable on a yearly basis. Some countries or regional patent offices (e.g. the European Patent Office) also require annual renewal fees to be paid for a patent application before it is granted.

Costs

The costs of preparing and filing a patent application, prosecuting it until grant and maintaining the patent vary from one jurisdiction 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.[57] 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.

In the United States, in 2000 the cost of obtaining a patent (patent prosecution) was estimated to be from $10,000 to $30,000 per patent.[58] When patent litigation is involved (which in year 1999 happened in about 1,600 cases compared to 153,000 patents issued in the same year[58]), costs increase significantly: although 95% of patent litigation cases are settled out of court,[59] those that reach the courts have legal costs on the order of a million dollars per case, not including associated business costs.[60]

Non-national treatment in the application procedure

Non-national treatments in national patent offices had been prevalent among the Northern countries[citation needed] until they were prohibited after the negotiation of the Paris Convention for the Protection of Industrial Property. According to Articles 2 and 3 of this treaty, juristic and natural persons who are either national of or domiciled in a state party to the Convention shall, as regards the protection of industrial property, enjoy in all the other countries of the Union, the advantages that their respective laws grant to nationals.

In addition, the TRIPS Agreement explicitly prohibits any such discrimination. TRIPS Agreement Article 27.1 states that 'patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced'.

Alternatives

A defensive publication is the act of publishing a detailed description of a new invention without patenting it, so as to establish prior art and public identification as the creator/originator of an invention, although a defensive publication can also be anonymous. A defensive publication prevents others from later being able to patent the invention.

A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by non-disclosure agreement and labour law, each of which prevents information leaks such as breaches of confidentiality and industrial espionage. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public,[61] whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork;[61] has an immediate effect;[61] and does not require any disclosure of information to the public.[61] The key disadvantage of a trade secret is its vulnerability to reverse engineering.[62]

Benefits

Primary incentives embodied in the patent system include incentives 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 around and improve upon earlier patents.[63]

Patents provide incentives for economically efficient research and development (R&D).[64] A study conducted annually by the Institute for Prospective Technological Studies (IPTS) shows that the 2,000 largest global companies invested more than 430 billion euros in 2008[65] in their R&D departments. If the investments can be considered as inputs of R&D, real products and patents are the outputs. Based on these groups, a project named Corporate Invention Board, had measured and analyzed the patent portfolios to produce an original picture[66] of their technological profiles. Supporters of patents argue that 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.[citation needed]

The logical consequence of more efficient R&D is a more efficient national economy: An increase in patenting has proven to be linked with an increase of national income. A 2009 study on patent effects in various countries around the world finds, for instance, that a 10% increase in patenting in 1910 led on average to a 9 to 11% higher level of per capita GDP in 1960. The positive effects of patenting on national income were found to be particularly strong in the U.S., Switzerland and Sweden. However, patenting is obviously not the only factor influencing GDP growth: among others, schooling also plays a big role.[67]

"The patent internalizes the externality by giving the [inventor] a property right over its invention."[68]

In accordance with the original definition of the term "patent", patents are intended to facilitate and encourage disclosure of innovations into the public domain for the common good. Thus patenting can be viewed as contributing to open hardware after an embargo period (usually of 20 years). If inventors did not have the legal protection of patents, in many cases, they might prefer or tend to keep their inventions secret (e.g. keep trade secrets).[69] 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 invention is not lost to humanity.[63][specify]

One effect of modern patent usage is that a small-time inventor, who can afford both the patenting process and the defense of the patent,[70] 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 not to 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.[71]

Another effect of modern patent usage is to both enable and incentivize competitors to design around (or to "invent around" according to R S Praveen Raj) the patented invention.[72] This may promote healthy competition among manufacturers, resulting in gradual improvements of the technology base.[73]

Criticism

Legal scholars, economists, activists, policymakers, industries, and trade organizations have held differing views on patents and engaged in contentious debates on the subject. Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade.[74]: 262–263  Contemporary criticisms have echoed those arguments, claiming that patents block innovation and waste resources (e.g. with patent-related overheads) that could otherwise be used productively to improve technology.[75][76][77] These and other research findings that patents decreased innovation because of the following mechanisms:

  • Low quality, already known or obvious patents hamper innovation and commercialization.[78][79][80]
  • Blocking the use of fundamental knowledge with patents creates a "tragedy of the anticommons, where future innovations can not take place outside of a single firm in an entire field".[81]
  • Patents weaken the public domain and innovation that comes from it.[82]
  • Patent thickets, or "an overlapping set of patent rights", in particular slow innovation.[83][84]
  • Broad patents prevent companies from commercializing products and hurt innovation.[85] In the worst case, such broad patents are held by non-practicing entities (patent trolls), which do not contribute to innovation.[86][87] Enforcement by patent trolls of poor quality patents[88] has led to criticism of the patent office as well as the system itself.[89] For example, in 2011, United States business entities incurred $29 billion in direct costs because of patent trolls.[90] Lawsuits brought by "patent assertion companies" made up 61% of all patent cases in 2012, according to the Santa Clara University School of Law.[91]
  • Patents apply a "one size fits all" model to industries with differing needs,[92] that is especially unproductive for the software industry.[93]
  • Rent-seeking by owners of pharmaceutical patents have also been a particular focus of criticism, as the high prices they enable puts life-saving drugs out of reach of many people.[94]

Boldrin and Levine conclude "Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it."[95][96] Abolishing patents may be politically challenging in some[which?] countries[citation needed], however, as the primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing;[64] this reasoning is weakened if the new technologies decrease these costs.[97] A 2016 paper argued for substantial weakening of patents because current technologies (e.g. 3D printing, cloud computing, synthetic biology, etc.) have reduced the cost of innovation.[97]

Debates over the usefulness of patents for their primary objective are part of a larger discourse on intellectual property protection, which also reflects differing perspectives on copyright.

Anti-patent initiatives

  • Patents on expensive medications are often used as examples that can highlight the inadequacy of patent-based mechanisms. One workaround solution that has been applied by South Africa in the past is passing explained domestic law that gives the state the right to import inexpensive generic versions without permission and wait for international regulations and incentive-systems to get upgraded at a later point.[98][99][100]
  • In 2020, multiple initiatives, including by India and South Africa, called for a waiver of TRIPS vaccine patents for accelerated deployment of COVID-19 vaccines around the world.[101] However, no mechanisms of alternative medical research and development incentive-systems[102] or technical details of proposed "sharing" after certain amounts of profit[103] were reported and some argue that, instead of intellectual property rights, manufacturing know-how is the main barrier to expanding capacity.[102]
  • The Patent Busting Project is an Electronic Frontier Foundation (EFF) initiative challenging patents that the organization claims are illegitimate and suppress innovation or limit online expression. The initiative launched in 2004 and involves two phases: documenting the damage caused by these patents,[104] and submitting challenges to the United States Patent and Trademark Office (USPTO).[105][106]
  • Patent critic, Joseph Stiglitz has proposed Prizes as an alternative to patents in order to further advance solutions to global problems such as AIDS.[107][108]
  • In 2012, Stack Exchange launched Ask Patents, a forum for crowdsourcing prior art to invalidate patents.[109]
  • Several authors have argued for developing defensive prior art to prevent patenting based on obviousness using lists[110] or algorithms.[111] For example, a Professor of Law at the University of North Carolina School of Law, has demonstrated a method to protect DNA research,[110] which could apply to other technology. Chin wrote an algorithm to generate 11 million "obvious" nucleotide sequences to count as prior art and his algorithmic approach has already[112] proven effective at anticipating prior art against oligonucleotide composition claims filed since his publication of the list and has been cited by the U.S. patent office a number of times.[113] More recently, Joshua Pearce developed an open-source algorithm for identifying prior art for 3D printing materials to make such materials obvious by patent standards.[111] As the 3-D printing community is already grappling with legal issues,[114] this development was hotly debated in the technical press.[115][116][117] Chin made the same algorithm-based obvious argument in DNA probes.[113]
  • Google and other technology companies founded the LOT Network in 2014 to combat patent assertion entities by cross-licensing patents, thereby preventing legal action by such entities.[118]

See also

References

  1. ^ a b c d "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)
  2. ^ WIPO Intellectual Property Handbook: Policy, Law and Use. Chapter 2: Fields of Intellectual Property Protection 2013-05-20 at the Wayback Machine WIPO 2008
  3. ^ Article 27.1. of the TRIPs Agreement.
  4. ^ a b Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
  5. ^ "What are intellectual property rights?". World Trade Organization. World Trade Organization. Retrieved 2016-05-23.
  6. ^ a b Stuart Wall; Sonal Minocha; Bronwen Rees (25 August 2009). International Business. Financial Times Prentice Hall. p. 43. ISBN 978-0-273-72372-1. (...) patents, trademarks and copyrights. These are often referred to as intellectual property rights (...)
  7. ^ "1502 Definition of a Design [R-08.2012]". Manual of Patent Examining Procedure. USPTO. from the original on 7 January 2015. Retrieved 7 January 2015.
  8. ^ "General Information About 35 U.S.C. 161 Plant Patents". USPTO. from the original on 7 January 2015. Retrieved 7 January 2015.
  9. ^ 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.
  10. ^ Phylarchus of Naucratis, "The Deipnosophists, or, Banquet of the Learned of Athenæus", Translated from Ancient Greek by H.Bohn 12:20, p.835
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External links

patent, other, uses, disambiguation, patent, type, intellectual, property, that, gives, owner, legal, right, exclude, others, from, making, using, selling, invention, limited, period, time, exchange, publishing, enabling, disclosure, invention, most, countries. For other uses see Patent disambiguation 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 time in exchange for publishing an enabling disclosure of the invention 1 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 2 17 A patent issued by the U S Patent and Trademark Office 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 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 3 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 4 Contents 1 Definition 2 History 2 1 Gender gap in patents 3 Law 3 1 Effects 3 2 Challenges 3 3 Infringement 3 4 Enforcement 3 5 Ownership 3 6 Governing laws 3 7 Application and prosecution 3 7 1 Costs 3 7 2 Non national treatment in the application procedure 3 8 Alternatives 4 Benefits 5 Criticism 5 1 Anti patent initiatives 6 See also 7 References 8 External linksDefinition EditThe word patent originates from the Latin patere which means to lay open i e to make available for public inspection It is a shortened version of the term letters patent which was an open document or instrument issued by a monarch or government granting exclusive rights to a person predating the modern patent system Similar grants included land patents which were land grants by early state governments in the US and printing patents a precursor of modern copyright In modern usage the term patent usually refers to the right granted to anyone who invents something new useful and non obvious A patent is often referred to as a form of intellectual property right 5 6 an expression which is also used to refer to trademarks and copyrights 6 and which has proponents and detractors see also Intellectual property The term intellectual property Some other types of intellectual property rights are also called patents in some jurisdictions industrial design rights are called design patents in the US 7 plant breeders rights are sometimes called plant patents 8 and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents The additional qualification utility patent is sometimes used primarily in the US to distinguish the primary meaning from these other types of patents Particular types of patents for inventions include biological patents business method patents chemical patents and software patents History EditMain article History of patent law The Venetian Patent Statute issued by the Senate of Venice in 1474 and one of the earliest statutory patent systems in the world Although there is some evidence that some form of patent rights was recognized in Ancient Greece in the Greek city of Sybaris 9 10 the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474 However recent historical research has suggested that the Venetian Patent Statute of 1474 was inspired by laws in the Kingdom of Jerusalem that granted monopolies to developers of novel silk making techniques 11 Patents were systematically granted in Venice as of 1474 where they issued a decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers The period of protection was 10 years 12 As Venetians emigrated they sought similar patent protection in their new homes This led to the diffusion of patent systems to other countries 13 The English patent system evolved from its early medieval origins into the first modern patent system that recognised intellectual property in order to stimulate invention this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish 14 By the 16th century the English Crown would habitually abuse the granting of letters patent for monopolies 15 After public outcry King James I of England VI of Scotland 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 1624 in which Parliament restricted the Crown s power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years The Statute became the foundation for later developments in patent law in England and elsewhere James Puckle s 1718 early autocannon was one of the first inventions required to provide a specification for a patent Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law During the reign of Queen Anne patent applications were required to supply a complete specification of the principles of operation of the invention for public access 16 Legal battles around the 1796 patent taken out by James Watt for his steam engine established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented 17 The English legal system became the foundation for patent law in countries with a common law heritage including the United States New Zealand and Australia In the Thirteen Colonies inventors could obtain patents through petition to a given colony s legislature In 1641 Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt 18 U S patents granted 1790 2010 19 The modern French patent system was created during the Revolution in 1791 20 Patents were granted without examination since inventor s right was considered as a natural one Patent costs were very high from 500 to 1 500 francs Importation patents protected new devices coming from foreign countries The patent law was revised in 1844 patent cost was lowered and importation patents were abolished 21 The first Patent Act of the U S Congress was passed on April 10 1790 titled An Act to promote the progress of useful Arts 22 The first patent under the Act was granted on July 31 1790 to Samuel Hopkins for a method of producing potash potassium carbonate A revised patent law was passed in 1793 and in 1836 a major revision to the patent law was passed The 1836 law instituted a significantly more rigorous application process including the establishment of an examination system Between 1790 and 1836 about ten thousand patents were granted By the American Civil War about 80 000 patents had been granted 23 Gender gap in patents Edit Share of women amongst listed inventors and share of PCT applications with at least one woman as inventor for the top 20 origins 2020 24 In the US women were historically precluded from obtaining patents While section 1 of the Patent Act of 1790 did refer to she 25 married women were unable to own property in their own name and were also prohibited from rights to their own income including income from anything they invented 26 This historical gender gap has lessened over the course of the 20th and 21st centuries however disparity is still prevalent 27 In the UK for example only 8 of inventors were female as of 2015 28 This can partly be attributed to historical barriers for women to obtain patents 26 as well as to the fact that women are underrepresented in traditionally patent intensive sectors particularly STEM sectors 27 Marcowitz Bitton et al argue that the gender gap in patents is also a result of internal bias within the patent system 27 Law EditEffects Edit A patent does not give a right to make or use or sell an invention 1 Rather a patent provides from a legal standpoint the right to exclude others 1 from making using selling offering for sale or importing the patented invention for the term of the patent which is usually 20 years from the filing date 4 subject to the payment of maintenance fees From an economic and practical standpoint however a patent is better and perhaps more precisely regarded as conferring upon its proprietor a right to try to exclude by asserting the patent in court for many granted patents turn out to be invalid once their proprietors attempt to assert them in court 29 A patent is a limited property right the government gives inventors in exchange for their agreement to share 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 A patent being an exclusionary right does not necessarily give the patent owner the right to exploit the invention subject to the patent For example many inventions are improvements of prior inventions that may still be covered by someone else s patent 1 If an inventor obtains a patent on improvements to an existing invention which is still under patent they can only legally use the improved invention if the patent holder of the original invention gives permission which they may refuse Some countries have working provisions that require 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 Challenges Edit In most jurisdictions there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office these are called opposition proceedings It is also possible to challenge the validity of a patent in court In either case the challenging party tries to prove that the patent should never have been granted There are several grounds for challenges the claimed subject matter is not patentable subject matter at all the claimed subject matter was actually not new or was obvious to the person skilled in the art at the time the application was filed or that some kind of fraud was committed during prosecution with regard to listing of inventors representations about when discoveries were made etc Patents can be found to be invalid in whole or in part for any of these reasons 30 31 Infringement Edit Main article Patent infringement Patent infringement occurs when a third party without authorization from the patentee makes uses or sells a patented invention Patents however are enforced on a national basis The making of an item in China for example that would infringe a US patent would not constitute infringement under US patent law unless the item were imported into the US 32 Infringement includes literal infringement of a patent meaning they are performing a prohibited act that is protected against by the patent There is also the Doctrine of Equivalents This doctrine protects from someone creating a product that is basically by all rights the same product that is protected with just a few modifications 33 In some countries like the United States there is liability for another two forms of infringement One is contributory infringement which is participating in another s infringement This could be a company helping another company to create a patented product or selling the patented product which is created by another company 34 There is also inducement to infringement which is when a party induces or assists another party in violating a patent An example of this would be a company paying another party to create a patented product in order to reduce their competitor s market share 35 This is important when it comes to gray market goods which is when a patent owner sells a product in country A wherein they have the product patented then another party buys and sells it without the owner s permission in country B wherein the owner also has a patent for the product With either national or regional exhaustion being the law the in country B the owner may still be able to enforce their patent rights however if country B has a policy of international exhaustion then the patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country 36 Enforcement Edit 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 district court although some countries such as France and Austria have criminal penalties for wanton infringement 37 Typically the patent owner seeks monetary compensation damages for past infringement and seeks an injunction that prohibits the defendant from engaging in future acts of infringement or seeks either damages or injunction To prove infringement the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent 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 accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim A patent can be found invalid on grounds described in the relevant patent laws which vary between countries Often the grounds are a subset of requirements for patentability in the relevant country Although 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 Patent licensing agreements are contracts in which the patent owner the licensor agrees to grant the licensee the right to make use sell or import the claimed invention usually in return for a royalty or other compensation 38 39 It is common for companies engaged in complex technical fields to enter into multiple 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 share the benefits of using each other s patented inventions Freedom Licenses like the Apache 2 0 License are a hybrid of copyright trademark patent license contract due to the bundling nature of the three intellectual properties in one central license This can make it difficult to enforce because patent licenses cannot be granted this way under copyright and would have to be considered a contract 40 Ownership Edit In most countries both natural persons and corporate entities may apply for a patent In the United States however only the inventor s may apply for a patent although it may be assigned to a corporate entity subsequently 41 and inventors may be required to assign inventions to their employers under an employment contract In most European countries ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor s normal or specifically assigned employment duties where an invention might reasonably be expected to result from carrying out those duties or if the inventor had a special obligation to further the interests of the employer s company 42 Applications by artificial intelligence systems such as DABUS have been rejected in the US the UK and at the European Patent Office on the grounds they are not natural persons 43 The plate of the Martin ejector seat of a military aircraft stating that the product is covered by multiple patents in the UK South Africa Canada and pending in other jurisdictions Dubendorf Museum of Military Aviation The inventors their successors or their assignees become the proprietors of the patent when and if it is granted If a patent is granted to more than one proprietor the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent For example in some countries each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor s 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 44 The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions as if they had originally made the inventions themselves Governing laws Edit See also Outline of patents 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 granted by national or regional patent offices 45 i e national or regional administrative authorities A given patent is therefore only useful for protecting an invention in the country in which that patent is granted In other words patent law is territorial in nature When a patent application is published the invention disclosed in the application becomes prior art and enters the public domain if not protected by other patents in countries where a patent applicant does not seek protection the application thus generally becoming prior art against anyone including the applicant who might seek patent protection for the invention in those countries Commonly a nation or a group of nations forms a patent office with 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 The authority for patent statutes in different countries varies In the UK substantive patent law is contained in the Patents Act 1977 as amended 46 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 Code and created the United States Patent and Trademark Office There is a trend towards global harmonization of patent laws with the World Trade Organization WTO being particularly active in this area 47 non primary source needed 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 Internationally there are international treaty procedures such as the procedures under the European Patent Convention EPC constituting the European Patent Organisation EPOrg that centralize some portion of the filing and examination procedure Similar arrangements exist among the member states of ARIPO and OAPI the analogous treaties among African countries and the nine CIS member states that have formed the Eurasian Patent Organization 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 Paris Convention set a minimum patent protection of 20 years but 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 Another key treaty is the Patent Cooperation Treaty PCT administered by the World Intellectual Property Organization WIPO and covering more than 150 countries The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30 month priority for applications as opposed to the standard 12 the Paris Convention granted A patent application filed under the PCT is called an international application or PCT application The steps for PCT applications are as follows 1 Filing the PCT patent application2 Examination during the international phase3 Examination during the national phase 48 Alongside these international agreements for patents there was the Patent Law Treaty PLT This treaty standardized the filing date requirements standardized the application and forms allows for electronic communication and filing and avoids unintentional loss of rights and simplifies patent office procedures 49 Sometimes nations grant others other than the patent owner permissions to create a patented product based on different situations that align with public policy or public interest These may include compulsory licenses scientific research and in transit in country 50 Application and prosecution Edit Main articles Patent application and Patent prosecution Before filing for an application which must be paid for whether a patent is granted or not a person will want to ensure that their material is patentable Patentable material must be synthetic meaning that anything natural cannot be patented For example minerals materials genes facts organisms and biological processes cannot be patented but if someone were to apply an inventive non obvious step to them to synthesize something new the result could be patentable That includes genetically engineered strains of bacteria as was decided in Diamond v Chakrabarty 51 Patentability also depends on public policy and ethical standards 52 Additionally patentable materials must be novel useful and a non obvious inventive step 53 A patent is requested by filing a written application at the relevant patent office The person or company filing the application is referred to as the applicant The applicant may be the inventor or its assignee The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art i e the relevant area of technology to make and use the invention In some countries there are requirements for providing specific information such as the usefulness of the invention the best mode of performing the invention known to the inventor or the technical problem or problems solved by the invention Drawings illustrating the invention may also be provided The application also includes one or more claims that define what a patent covers or the scope of protection After filing an application is often referred to as patent pending While this term does not confer legal protection and a patent cannot be enforced until granted it serves to provide warning to potential infringers that if the patent is issued they may be liable for damages 54 55 56 Once filed a patent application is prosecuted A patent examiner reviews the patent application to determine if it meets the patentability requirements of that country If the application does not comply objections are communicated to the applicant or their patent agent or attorney through an Office action to which the applicant may respond The number of Office actions and responses that may occur vary from country to country but eventually a final rejection is sent by the patent office or the patent application is granted which after the payment of additional fees leads to an issued enforceable patent In some jurisdictions there are opportunities for third parties to bring an opposition proceeding between grant and issuance or post issuance Once granted the patent is subject in most countries to renewal fees to keep the patent in force These fees are generally payable on a yearly basis Some countries or regional patent offices e g the European Patent Office also require annual renewal fees to be paid for a patent application before it is granted Costs Edit The costs of preparing and filing a patent application prosecuting it until grant and maintaining the patent vary from one jurisdiction 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 57 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 In the United States in 2000 the cost of obtaining a patent patent prosecution was estimated to be from 10 000 to 30 000 per patent 58 When patent litigation is involved which in year 1999 happened in about 1 600 cases compared to 153 000 patents issued in the same year 58 costs increase significantly although 95 of patent litigation cases are settled out of court 59 those that reach the courts have legal costs on the order of a million dollars per case not including associated business costs 60 Non national treatment in the application procedure Edit This section relies largely or entirely upon a single source Relevant discussion may be found on the talk page Please help improve this article by introducing citations to additional sources January 2022 Learn how and when to remove this template message Non national treatments in national patent offices had been prevalent among the Northern countries citation needed until they were prohibited after the negotiation of the Paris Convention for the Protection of Industrial Property According to Articles 2 and 3 of this treaty juristic and natural persons who are either national of or domiciled in a state party to the Convention shall as regards the protection of industrial property enjoy in all the other countries of the Union the advantages that their respective laws grant to nationals In addition the TRIPS Agreement explicitly prohibits any such discrimination TRIPS Agreement Article 27 1 states that patents shall be available and patent rights enjoyable without discrimination as to the place of invention the field of technology and whether products are imported or locally produced Alternatives Edit A defensive publication is the act of publishing a detailed description of a new invention without patenting it so as to establish prior art and public identification as the creator originator of an invention although a defensive publication can also be anonymous A defensive publication prevents others from later being able to patent the invention A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor Trade secrets are protected by non disclosure agreement and labour law each of which prevents information leaks such as breaches of confidentiality and industrial espionage Compared to patents the advantages of trade secrets are that the value of a trade secret continues until it is made public 61 whereas a patent is only in force for a specified time after which others may freely copy the invention does not require payment of fees to governmental agencies or filing paperwork 61 has an immediate effect 61 and does not require any disclosure of information to the public 61 The key disadvantage of a trade secret is its vulnerability to reverse engineering 62 Benefits EditThe neutrality of this section is disputed Relevant discussion may be found on the talk page Please do not remove this message until conditions to do so are met August 2021 Learn how and when to remove this template message Primary incentives embodied in the patent system include incentives 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 around and improve upon earlier patents 63 Patents provide incentives for economically efficient research and development R amp D 64 A study conducted annually by the Institute for Prospective Technological Studies IPTS shows that the 2 000 largest global companies invested more than 430 billion euros in 2008 65 in their R amp D departments If the investments can be considered as inputs of R amp D real products and patents are the outputs Based on these groups a project named Corporate Invention Board had measured and analyzed the patent portfolios to produce an original picture 66 of their technological profiles Supporters of patents argue that without patent protection R amp 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 amp D investments they made as third parties would be free to exploit any developments citation needed The logical consequence of more efficient R amp D is a more efficient national economy An increase in patenting has proven to be linked with an increase of national income A 2009 study on patent effects in various countries around the world finds for instance that a 10 increase in patenting in 1910 led on average to a 9 to 11 higher level of per capita GDP in 1960 The positive effects of patenting on national income were found to be particularly strong in the U S Switzerland and Sweden However patenting is obviously not the only factor influencing GDP growth among others schooling also plays a big role 67 The patent internalizes the externality by giving the inventor a property right over its invention 68 In accordance with the original definition of the term patent patents are intended to facilitate and encourage disclosure of innovations into the public domain for the common good Thus patenting can be viewed as contributing to open hardware after an embargo period usually of 20 years If inventors did not have the legal protection of patents in many cases they might prefer or tend to keep their inventions secret e g keep trade secrets 69 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 invention is not lost to humanity 63 specify One effect of modern patent usage is that a small time inventor who can afford both the patenting process and the defense of the patent 70 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 not to 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 71 Another effect of modern patent usage is to both enable and incentivize competitors to design around or to invent around according to R S Praveen Raj the patented invention 72 This may promote healthy competition among manufacturers resulting in gradual improvements of the technology base 73 Criticism EditFurther information Criticism of patents See also Biological patent Ethics and United States Patent and Trademark Office Criticisms Legal scholars economists activists policymakers industries and trade organizations have held differing views on patents and engaged in contentious debates on the subject Critical perspectives emerged in the nineteenth century that were especially based on the principles of free trade 74 262 263 Contemporary criticisms have echoed those arguments claiming that patents block innovation and waste resources e g with patent related overheads that could otherwise be used productively to improve technology 75 76 77 These and other research findings that patents decreased innovation because of the following mechanisms Low quality already known or obvious patents hamper innovation and commercialization 78 79 80 Blocking the use of fundamental knowledge with patents creates a tragedy of the anticommons where future innovations can not take place outside of a single firm in an entire field 81 Patents weaken the public domain and innovation that comes from it 82 Patent thickets or an overlapping set of patent rights in particular slow innovation 83 84 Broad patents prevent companies from commercializing products and hurt innovation 85 In the worst case such broad patents are held by non practicing entities patent trolls which do not contribute to innovation 86 87 Enforcement by patent trolls of poor quality patents 88 has led to criticism of the patent office as well as the system itself 89 For example in 2011 United States business entities incurred 29 billion in direct costs because of patent trolls 90 Lawsuits brought by patent assertion companies made up 61 of all patent cases in 2012 according to the Santa Clara University School of Law 91 Patents apply a one size fits all model to industries with differing needs 92 that is especially unproductive for the software industry 93 Rent seeking by owners of pharmaceutical patents have also been a particular focus of criticism as the high prices they enable puts life saving drugs out of reach of many people 94 Boldrin and Levine conclude Our preferred policy solution is to abolish patents entirely and to find other legislative instruments less open to lobbying and rent seeking to foster innovation when there is clear evidence that laissez faire undersupplies it 95 96 Abolishing patents may be politically challenging in some which countries citation needed however as the primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research inventing and commercializing 64 this reasoning is weakened if the new technologies decrease these costs 97 A 2016 paper argued for substantial weakening of patents because current technologies e g 3D printing cloud computing synthetic biology etc have reduced the cost of innovation 97 Debates over the usefulness of patents for their primary objective are part of a larger discourse on intellectual property protection which also reflects differing perspectives on copyright Anti patent initiatives Edit Patents on expensive medications are often used as examples that can highlight the inadequacy of patent based mechanisms One workaround solution that has been applied by South Africa in the past is passing explained domestic law that gives the state the right to import inexpensive generic versions without permission and wait for international regulations and incentive systems to get upgraded at a later point 98 99 100 In 2020 multiple initiatives including by India and South Africa called for a waiver of TRIPS vaccine patents for accelerated deployment of COVID 19 vaccines around the world 101 However no mechanisms of alternative medical research and development incentive systems 102 or technical details of proposed sharing after certain amounts of profit 103 were reported and some argue that instead of intellectual property rights manufacturing know how is the main barrier to expanding capacity 102 The Patent Busting Project is an Electronic Frontier Foundation EFF initiative challenging patents that the organization claims are illegitimate and suppress innovation or limit online expression The initiative launched in 2004 and involves two phases documenting the damage caused by these patents 104 and submitting challenges to the United States Patent and Trademark Office USPTO 105 106 Patent critic Joseph Stiglitz has proposed Prizes as an alternative to patents in order to further advance solutions to global problems such as AIDS 107 108 In 2012 Stack Exchange launched Ask Patents a forum for crowdsourcing prior art to invalidate patents 109 Several authors have argued for developing defensive prior art to prevent patenting based on obviousness using lists 110 or algorithms 111 For example a Professor of Law at the University of North Carolina School of Law has demonstrated a method to protect DNA research 110 which could apply to other technology Chin wrote an algorithm to generate 11 million obvious nucleotide sequences to count as prior art and his algorithmic approach has already 112 proven effective at anticipating prior art against oligonucleotide composition claims filed since his publication of the list and has been cited by the U S patent office a number of times 113 More recently Joshua Pearce developed an open source algorithm for identifying prior art for 3D printing materials to make such materials obvious by patent standards 111 As the 3 D printing community is already grappling with legal issues 114 this development was hotly debated in the technical press 115 116 117 Chin made the same algorithm based obvious argument in DNA probes 113 Google and other technology companies founded the LOT Network in 2014 to combat patent assertion entities by cross licensing patents thereby preventing legal action by such entities 118 See also Edit Wikiquote has quotations related to Patent Outline of patentsReferences Edit a b c d 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 WIPO Intellectual Property Handbook Policy Law and Use Chapter 2 Fields of Intellectual Property Protection Archived 2013 05 20 at the Wayback Machine WIPO 2008 Article 27 1 of the TRIPs Agreement a b Article 33 of the Agreement on Trade Related Aspects of Intellectual Property Rights TRIPS What are intellectual property rights World Trade Organization World Trade Organization Retrieved 2016 05 23 a b Stuart Wall Sonal Minocha Bronwen Rees 25 August 2009 International Business Financial Times Prentice Hall p 43 ISBN 978 0 273 72372 1 patents trademarks and copyrights These are often referred to as intellectual property rights 1502 Definition of a Design R 08 2012 Manual of Patent Examining Procedure USPTO Archived from the original on 7 January 2015 Retrieved 7 January 2015 General Information About 35 U S C 161 Plant Patents USPTO Archived from the original on 7 January 2015 Retrieved 7 January 2015 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 amp Bros 1841 page 1273 Phylarchus of Naucratis The Deipnosophists or Banquet of the Learned of Athenaeus Translated from Ancient Greek by H Bohn 12 20 p 835 Robert Patrick Merges Patent Law and Policy Cases and Materials Seventh Edition Chapter 1 Wolfgang Pfaller de Patentgesetz von Venedig in German and Italian Archived from the original on 2007 06 30 M Frumkin The Origin of Patents Journal of the Patent Office Society March 1945 Vol XXVII No 3 pp 143 et Seq Leaffer Marshall A 1990 Book Review Inventing the Industrial Revolution The English Patent System 1660 1800 Articles by Maurer Faculty 666 Archived from the original on 2015 10 04 MacLeod Christine 1988 Inventing the industrial revolution The English patent system 1660 1800 Cambridge Cambridge University Press ISBN 9780521893992 Archived from the original on 2015 10 04 Blackstone s Commentaries Archived from the original on 2008 02 24 Retrieved 2008 02 24 THE king s grants are alſo matter of public record For as St Germyn ſays the king s excellency is ſo high in the law that no freehold may be given to the king nor derived from him but by matter of record And to this end a variety of offices are erected communicating in a regular ſubordination one with another through which all the king s grants muſt paſs and be tranſcribed and enrolled that the ſame may by narrowly inſpected by his officers who will inform him if any thing contained therein is improper or unlawful to be granted Theſe grants whether of lands honours liberties franchiſes or ought beſides are contained in charters or letters patent that is open letters literae patentes ſo called becauſe they are not ſealed up but expoſed to open view with the great ſeal pendant at the bottom and are uſually directed or addreſſed by the king to all his ſubjects at large And therein they differ from certain other letters of the king ſealed alſo with his great ſeal but directed to particular perſons and for particular purpoſes which therefore not being proper for public inſpection are cloſed up and ſealed on the outſide and are thereupon called writs cloſe literae clauſae and are recorded in the cloſe rolls in the ſame manner as the others are in the patent rolls The 18th century Intellectual Property Office Archived from the original on 2014 04 22 History of Copyright UK Intellectual Property Office 2006 Archived from the original on 2007 09 29 Retrieved 2007 08 12 James W Cortada Rise of the knowledge worker Volume 8 of Resources for the knowledge based economy Knowledge Reader Series Butterworth Heinemann 1998 p 141 ISBN 0 7506 7058 4 ISBN 978 0 7506 7058 6 U S Patent Activity 1790 to the Present USPTO Archived from the original on 2012 12 02 a href Template Cite journal html 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Michael L Shapiro Carl 1985 On the Licensing of Innovations The RAND Journal of Economics 16 4 504 520 doi 10 2307 2555509 ISSN 0741 6261 JSTOR 2555509 Schmitz Patrick W 2002 On Monopolistic Licensing Strategies under Asymmetric Information Journal of Economic Theory 106 1 177 189 doi 10 1006 jeth 2001 2863 PROBLEMS WITH APACHE LICENSE AND OTHERS INVOLVING NON COPYRIGHT USES Pastebin com Retrieved 2021 08 29 Assignee Company Name Help Page U S Patent and Trademark Office USPTO Archived from the original on 2007 08 14 Retrieved 2007 07 25 See Section 39 of the UK Patents Act Archived 2009 02 25 at the Wayback Machine as an example The laws across Europe vary from country to country but are generally harmonised In an Australian context see University of Western Australia v Gray 2008 FCA 498 AUSTLII Sonnemaker Tyler No an artificial intelligence can t legally invent something only natural persons can says US patent office Business Insider Retrieved 26 August 2020 Article 28 2 TRIPs 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link a b Chin A 2010 Gene Probes are Unpatentable Printed Matter Fed Cir BJ 20 p 527 Archived copy PDF Archived PDF from the original on 2016 10 17 Retrieved 2016 08 20 a href Template Cite web html title Template Cite web cite web a CS1 maint archived copy as title link What are the legal aspects of 3D printing A European law firm weighs in Archived 2016 09 13 at the Wayback Machine 3Ders Shots Fired The 3D Printing Materials IP War Has Begun as Joshua Pearce Releases Algorithm for Obviousness Archived 2016 08 18 at the Wayback Machine 3DPrint New Algorithm Fights to Keep 3D Printing Materials Open to All Archived 2016 05 24 at the Wayback Machine 3D Printing Industry Joshua Pearce creates new algorithm for obviousness to prevent 3D printing material patents Archived 2016 10 17 at the Wayback Machine 3ders Tech auto companies join forces to thwart patent trolls 2016 02 03 Archived from the original on 2016 06 13 Retrieved 2016 08 23 External links Edit Wikimedia Commons has media related to Patents Look up patent in Wiktionary the free dictionary Directory of Intellectual Property Offices maintained by World Intellectual Property Organization WIPO Useful links maintained by the European Patent Office OECD Patent statistics Henderson David R 2002 Patents Concise Encyclopedia of Economics 1st ed Library of Economics and Liberty OCLC 317650570 50016270 163149563 Retrieved from https en wikipedia org w index php title Patent amp oldid 1144866077, wikipedia, wiki, book, books, library,

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