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A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable. The exclusive right granted a patentee is the right to prevent others from making, using, selling, offering to sell or importing the claimed invention. The rights given to the patentee do not include the right to make, use, or sell the invention themselves. The patentee may have to comply with other laws and regulations to make use of the claimed invention. So, for example, a pharmaceutical company may obtain a patent on a new drug but will be unable to market the drug without regulatory approval or an inventor may patent an improvement to a particular type of laser, but be unable to make or sell the new design without a license from the owner of an earlier broader patent covering lasers of that type. The term "patent" originates from the Latin word patere which means "to lay open" (i.e. make available for public inspection) and the term letters patent, which originally denoted royal decrees granting exclusive rights to certain individuals or businesses.
Economic rationale
There are three primary justifications for granting patents. First, in accordance with the original definition of the term "patent", it is argued that patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, they may prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after patent protection ends, or for further improvement by other inventors (who may in turn patent these improvements). Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to humanity. Second, it is broadly believed that patents incentivize economically efficient research and development (R&D). Many large modern corporations have annual R&D budgets of hundreds of millions or even billions of dollars. Without patent protection, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs. Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic idea underlying traditional property rights: why build a house if another person could freely occupy it? Third, many believe that patent rights create an incentive for companies to develop workarounds to patented inventions, thereby creating improved or alternative technologies that might not otherwise have been developed. CriticismHowever, there are arguments in opposition to patent rights. Granting a patent confers a "negative right" upon a patent owner, because he or she may legally exclude competitors from using or exploiting the invention, even if the competitor has independently developed the same invention. Some believe that the patent incentive to invest in the creation of new inventions is not necessary and that market incentives are more than sufficient. Historically, patents were often granted by sovereigns to non-inventing parties in favor merely so they could profit. Some believe that patents stifle competition and result in higher prices, lower quality, and shortages. Others believe that R&D investment and innovation are stimulated and result in more choice, and that possibly better solutions are explored more frequently as those seeking to avoid a patent attempt to "invent around" the patented solution. Historically, countries with effective patent systems have experienced greater economic growth and technological advances than countries where intellectual property is not protected by law. However, industry specific experiences differ. For example, the mid-19th century dyestuffs industry faltered in Britain despite patent protections and flourished in Germany despite the absence of such protections. A more subtle problem with patent rights was put forth by law professors Michael Heller and Rebecca Eisenberg in a 1998 Science article. Building from Heller's theory of the tragedy of the anticommons, the professors postulated that useful innovations that build on earlier patented inventions can be inhibited by the high transaction costs from negotiating with the earlier patentees. According to Heller and Eisenberg, intellectual property rights may become so widely fragmented that, effectively, no one can take advantage of them. As one potential example, the professors identify therapeutic proteins and genetic diagnostic tests that would require the use of numerous patented gene fragments. In analogy to traditional property rights, it would be as if six different parties owned a house's two bedrooms, living room, kitchen, dining room, and bathroom—the utility of the house would be wasted until the parties could either negotiate an arrangement in which some or all of the parties were free to use each other's areas of the house or one party acquired ownership of the entirety of the house. Because of the difficulty in balancing the benefits and drawbacks of patent grants, there is ongoing debate over the extent to which patents should be conferred. This controversy is manifested in the ways different jurisdictions decide whether to grant patents. But recent years have seen a global embrace and augmentation of the scope of patents, as evidenced by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). One interesting side effect of modern day patent usage is that the small-time inventor can use the monopoly status to become a licensor. This allows the inventor to accumulate capital quickly from licensing the invention and may allow rapid innovation to occur because he/she may choose to not manage a manufacturing buildup for the invention. Thus, time and energy can be spent on pure innovation and allow others to concentrate on manufacturability. Legal implementationA modern patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention. Generally, patents are enforced only through civil lawsuits. Patent licensing agreements are effectively contracts in which the patent owner (the licensor) agrees not to sue the licensee for infringement of the licensor's patent rights. Some governments reserve the right to suspend or cancel a patent at will. A patent application, for a utility patent in the United States (as opposed to a design patent), must explain how to work (i.e. make and/or use) the invention(s) and must also include claims that particularly point out the invention(s) and define the scope of the subject matter for which exclusive rights are sought by the patent applicant. The exclusive rights are limited to the subject matter encompassed by the patent's claims. Patent claims are typically of the form of a long noun phrase, e.g.:
Each word of a claim is considered an "element" or "limitation" of the claim. In order to exclude someone from using a patented invention in a court, the patent owner will have to demonstrate to the court that what the other person is using is included within the scope of at least one claim of the patent. For this reason, it is more valuable to obtain patent claims that include the absolute minimal set of limitations that differentiate a new invention over what came before (the "prior art"). On the other hand, the fewer the limitations in a claim, the more likely it is that the claim will cover or "read on" what came before and be rejected during examination or found to be invalid at a later time. The United States is currently moving towards more rigid claim interpretations by limiting the patent owners expansive reading of claim limitations under the "doctrine of equivalents". The practice elsewhere in the world differs. The right to exclude—exampleIf an inventor takes an existing patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can legally build his or her improved mouse trap only with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement. Under these circumstances, patent owners sometimes engage in cross-licensing agreements. No right of useAlthough this is often misunderstood, a patent does not (not automatically) entitle its owner to use the protected invention. Indeed, there may be one or more "blocking patents" which prevent such use (this is frequent, for instance, where the newly protected invention is an improvement of a broader, pre-existing, patented technology). In a way, a patent should thus be seen as a "negative right", allowing its owner to prevent competitors from using a given invention, but not (not always) to use the invention himself/herself. Governing lawsAlthough patents are fundamentally territorial in their nature, there are currently a number of significant international treaties governing some important aspects of patent law. The most universal of these is the WTO TRIPs Agreement, to which almost all countries are party. The United States, the countries of the European Union, and Japan are parties to all of the significant treaties. This has led to significant harmonization of patent law worldwide, particularly in the last decade of the 20th century and continuing into the 21st. Despite recent harmonization, the United States patent laws are unique in several significant respects. The biggest difference is that, if two people apply for a patent on the same invention, the U.S. system awards the patent to the "first to invent", whereas in the rest of the world the "first to file" is awarded the patent. A contest between different inventors over priority is called an "interferences". Another unique aspect of U.S. patent law is that an inventor has a one-year grace period after publication or sale to file a patent application, whereas in most other countries patent rights are lost if an application is not on file when a public disclosure, publication or sale takes place. As mentioned above, patents are territorial in nature. Thus, to obtain patents in multiple countries it is required to separately file patent applications in each country, or region, where a patent is sought. The Patent Cooperation Treaty (PCT), however, allows applicants to initially file a single international application, which later can be entered into separate countries or regions. Similarly, within Europe, a single patent application procedure is available through the European Patent Office. However, successful applications result in a European patent which is effectively equivalent to a bundle of nationally enforceable and revocable patents (up to 36) rather than a single European-wide patent. Such a European-wide unitary patent, or "Community Patent", has been the subject of discussion at the EU level since the 1970s, with no result so far. Many of the international treaties are designed to afford some recognition of filing dates to patent applications previously filed in another country. In this respect, the most important treaty is the Paris Convention, dating back to 1883. Typically, inventors are allowed one year (the priority year) from the date of their filing (in a first country) to file the application in other countries. The authority for patent statutes in different countries varies. In the United States for instance, the Patent and Trademark Office gets its authority from statutes in Title 35 of the United States Code, which in turn is based on Article One, Section 8 of the U.S. Constitution. Patent prosecution
Typically, an application for a patent is prepared by a professional agent known as a patent attorney or patent agent, who files the application with a patent office. The person applying for a patent generally does not need to be the inventor who created or authored the invention. However, in the United States a patent application must be filed in the name of the actual inventor or inventors, although the application can be assigned to another party, such as the employer of the inventor. At the patent office an examiner will consider the invention's patentability and whether it is otherwise eligible for grant. The entire legal process of examination and obtaining grant is called patent prosecution. Some countries do not formally review patent applications while others accept the determination of other patent offices. For example, some smaller countries, such as Belgium and the Netherlands grant a patent almost automatically or with minimal examination. This may be contrasted with the strict requirements of the United States Patent and Trademark Office, the Japan Patent Office and the European Patent Office. The patent prosecution process typically involves:
The specifics of the examination process include:
Different patent systems use different terms and different standards for these concepts, of which the most important probably are: patentable subject matter, novelty, non-obviousness and sufficient disclosure. Patentable subject matter
The standard for what is patentable subject matter in most countries is any man-made invention that is new (novel), useful, and non-obvious. Some countries exclude specific categories of such inventions. Under the European Patent Convention (EPC), for example computer programs, as such, are not patentable. In other countries, patents on pharmaceuticals are not allowed. Almost all countries prohibit patents on mathematical formulae, abstract ideas, laws of nature and the like. Under U.S. law, a claimed invention is deemed useful if, at the time of filing, it is capable of providing some identifiable benefit (to a person of ordinary skill in the art of the invention). The benefit must be specific, substantial, and practical. Generally speaking, there are three broad categories of patentable subject matter: processes, machines and articles of manufacture and use. A process could be a method for making something, a method for using something, or a method for doing something. Processes include business methods, most software, medical techniques, sports techniques, and the like. Machines include devices and apparatuses. Articles of manufacture include mechanical devices, electrical/electronic devices and compositions of matter such as chemicals, medicines, DNA, RNA, etc. Because laws of nature, physical phenomena, and abstract ideas are not patentable, software inventions implementing algorithms are not patentable unless the software produces a "useful, concrete, and tangible result" (U.S. law) or technical effect (European law). The U.S. standard for the patentability of software is considered to be more liberal than that in Europe, while Japanese patent law is considered to lie between the two. The patentability of software (and business methods) is quite controversial from a global perspective. Case law in the United States permits patents for software and business methods. Yet computer programs as such are not patentable in Europe, although some inventions that use software can be patented in Europe. Patents related to natural compounds (e.g. items found in rainforests) as well as medicines, medical treatment techniques, and genetic sequences are also controversial. There are significant country-by-country differences in handling these subject matters. For example, in the United States you can get a patent for a surgical method but you cannot exclude physicians from performing the surgical method. Novelty
Novelty relates to whether something existed before its invention by the applicant or was disclosed to the public before the patent application's filing date. For public disclosures of the invention by the inventor, the United States and Canada permit a one year grace period, but most other countries provide no grace period, instead requiring "absolute novelty". An invention is not novel if there is a previously existing or disclosed device or process that includes all of the elements of the claimed invention. Identifying such "prior art" by the patent examiner is accomplished by a search of literature (technical journals, published patent applications and issued patents, etc.) that predate the filing date of the particular patent application. Inventive step and non-obviousness
Even if an applicant's claim for an invention is novel (i.e. not taught by a single prior art reference), a patent can still be denied to the applicant if the claimed subject matter would have been obvious to someone else skilled in the technical field of the invention. The purpose of forbidding patents on obvious technologies is to prevent a person from obtaining exclusive rights to what is effectively already in the possession of the public, even if documentation of the exact form of the applicant's embodiment happens to be lacking. Accordingly, obviousness asks the question whether all previously known technology related to the invention would teach a "person having ordinary skill in the art", e.g. someone who does the type of things relating to the technical field of the invention, how to make the invention. Many patent applications in the United States, Europe, and Japan are initially rejected as being obvious. The standard of obviousness and its application are more subjective and controversial than that of novelty. If the requirements are set very high, virtually nothing is patentable. Similarly if the requirements are very low, all kinds of trivial inventions can receive patents. Generally, the patent laws make it difficult for patent examiners to employ hindsight reasoning in rejecting a claim as obvious, by requiring some teaching that would motivate a person of ordinary skill in the art to modify the technology found in the prior art to arrive at the claimed invention. In the United States, objective evidence or secondary considerations of non-obviousness can overcome a proper obviousness rejection. Such secondary considerations can include unexpected results, commercial success, long-felt need, failure of others, copying by others, licensing, and skepticism of experts. As a practical matter, during examination the patent examiner will attempt to locate two or more references that when combined show all of the features of the claimed invention and indicate that one of ordinary skill would make that combination. The threshold for the obviousness or inventive step standard can be particularly ambiguous in genus–species situations. For example, if an inventor finds two species of a particular genus, e.g. two particular chemical compositions out of 10,000 in the broader genus, should the inventor be entitled to a patent on the entire genus? Further, if someone has discovered the genus already, but not isolated any of the species, are the species obvious in light of the genus? Under U.S. law, the species may still be patentable if they produce results that are unexpectedly different from those of other previously known members of the genus. For example, suppose a software inventor unveils the quicksort sorting algorithm to the world but only discloses it using integers (this is the species). Can someone else then obtain a patent on an "improved" quicksort suitable for use on any partially ordered set (this is the genus)? Under U.S. law, this is not a question of obviousness since a claim to the genus lacks novelty as the species is known. Finally, in spite of all precautions, some patents still give a general impression of triviality. An example is given by the "combover" patent (U.S. Patent 4,022,227, filed December 1975), which has also been awarded the 2004 Ig Nobel Prize in engineering for its apparently unintentional ridiculousness. Term of patent
The maximum possible term of an issued patent (assuming that any required renewal fees are paid) is normally 20 years from the filing date. The TRIPS agreement requires WTO member states to offer at least such a period of protection and no major patent-granting state offers more in normal circumstances, though in some states an extension to the patent term may be possible in certain cases, such as to compensate for delay in the patent office. Alternatively, further protection of a different form may sometimes be available, such as the European Union supplementary protection certificate for medicinal and plant protection products where a long regulatory process delays authorisation to bring a product onto the market. In the United States, for applications filed on or after June 8, 1995, the patent term is 20 years from the earliest claimed filing date (see also: Term of patent in the United States). Also, in several countries there are multiple types of patents, and the 20 year term frequently only applies to utility patents and not design, petit, or other kinds of less heavily examined patents. For example, the term of a U.S. design patent, which covers the ornamental shape of objects, lasts 14 years from its issue date. ExampleIf the better mousetrap patent is filed on January 1, 1996 and is issued or granted on January 1, 2000, it will lapse twenty years from filing: January 1, 2016. However, if the inventor comes up with a second improvement and claims priority to his first patent when filing in the United States the second patent on January 1, 1998, that second patent, after grant, would lapse 20 years from the earliest claimed priority: January 1, 2016. In many other jurisdictions, such as under the European Patent Convention it is not possible to claim priority that late; the second patent would only be granted if it was novel and inventive over the first (since under that system the first application would have been published before the filing date of the second and could not serve as a priority application) but it would not lapse until January 1, 2018. MiscellaneousWhile a patent grants an exclusive right on the invention claimed, many national laws provide for special rules on granting compulsory license to requesting third parties when the invention is not put into practice within a specified amount of time or is put into practice in a manner that is deemed to be insufficient for the needs of the country. The licensee must pay reasonable compensation, to be fixed by an independent tribunal if not agreed. In practice, obtaining a compulsory license is not easy. Secrecy provisions are also present in many national laws in case the invention for which a patent is filed is deemed to have military interest. A patent might also be seized by the State under grounds of public utility. This is akin to the state's power of eminent domain. Again, as for compulsory licensing, an obligation to pay reasonable compensation, to be fixed by an independent tribunal if not agreed, is invariably provided. For example, during the 2001 anthrax attacks, it was rumoured that the U.S. had considered seizing the patent on the Cipro antibiotic from the Bayer Corporation. However, the anthrax attacks did not continue and the patent was not seized. The World Trade Organization Agreement 1994 imposes restrictions on both compulsory licensing and seizure (TRIPs Agreement, article 31). There's a crescent movement of people who think intellectual property, including patents, do more harm than good. Some of these people call themselves infoanarchists. History of patents
Although there is evidence suggesting that something like patents was used among some ancient Greek cities, patents in the modern sense originated in Italy. The first patent law was a Venetian Statute of 1474 in which the Republic of Venice issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic in order to obtain legal protection against potential infringers. England followed with the Statute of Monopolies in 1623 under King James I. Prior to this time, the crown would issue letters patent providing any person with a "monopoly" to produce particular goods or provide particular services. The first of them was granted by Henry VI in 1449 to a Flemish man a 20 year monopoly on the manufacture of stained glass. This was the start of a long tradition by the English Crown of the granting of "letters patent" (meaning "open letter", as opposed to a letter under seal) which granted "monopolies" to favoured persons (or people who were prepared to pay for them). This became increasingly open to abuse as the Crown granted patents in respect of all sorts of known goods (salt, for example). This power, which was to raise money for the crown, was widely abused, and court began to limit the circumstances in which they could be granted. After public outcry, James I was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the crown's power explicitly so that the King could only issue letters patents to the inventors or introducers of original inventions for a fixed number of years. In the reign of Queen Anne the rules were changed again so that a written description of the article was given. Section 6 of the Statute refers to "manner[s] of new manufacture... [by] inventors", and this section remains the foundation for patent law in New Zealand and Australia. The Statute of Monopolies was later developed by the courts to produce modern patent law; this innovation was soon adopted by other countries. History of Patents in the United StatesDuring the period of America’s Thirteen Colonies a few inventors were able to obtain monopolies (i.e. “patents”) to produce and sell their inventions. These monopolies were granted by petition to a given colony’s legislature. In 1646, for example, the Province of Massachusetts Bay granted inventor Joseph Jenks Sr. the exclusive right to set up water mills using a speedier engine he had developed for making edged tools, such as scythes. His monopoly was to run for 14 years. Reference First US patentThe Patent Commission of the U.S. was created in 1790. Its first three members were Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph. On July 31, 1790 inventor Samuel Hopkins of Pittsford, Vermont became the first person to be issued a patent in the United States. His patented invention was an improvement in the "making of Pot Ash by a new apparatus & process". The earliest patent law required that a working model of each invention be produced in miniature. The Patent Law was revised for the first time in 1793. It adopted a simple registration system where a patent would be granted for a $30 fee. The Patent Board was replaced by a clerk in the Department of State. James Madison, Secretary of State, created a separate Patent Office within the State Department and he appointed Dr. William Thornton as its first superintendent in May 1802. On May 5, 1809 Mary Dixon Kies became the first woman to be awarded a U.S. patent. Later, in 1810, the Patent Office moved from the Department of State to Blodgetts Hotel. In the same year, they opened the patent model storage to the general public. The first 10,000 patents issued by the USPTO from July 1790 to July 1836 were destroyed in a fire in December 1836. About 2800 of them were later recovered, but the majority of them are still missing. The recovered patents are now called X-Patents because their patent numbers end with an "X." Patent models
One of the most interesting early features of the U.S. patent system was the requirement of patent models. A patent model was a scratch-built miniature model no larger than 12" by 12" that showed how the patent works. Since most early inventors were ordinary people without technological or legal training, it was difficult for them to submit formal patent applications, due to the required small-scale models. However, to some degree, it was beneficial for these amateur inventors to submit a model. This is because their inventions might not be fully comprehended otherwise. Patent models were required since 1790. The Congress of the U.S. abolished the legal requirement for them in 1870. The U.S. Patent Office kept this requirement until 1880. However, some inventors still willingly submitted models at the turn of the 20th century. A working model, or other physical exhibit, may be required by the U.S. patent office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices (Source: USPTO web site). ReformReforming the patent system or trying to do so is an undergoing process in many national or international legislations. Currently the following initiatives are being examined:
See alsoWikiquote has a collection of quotations related to: PatentLegal concepts
Special types of patents and patent applications
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External linksPatent Office Web sites and other regional info
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Weird and historical patents
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