A patent (pronounced /ˈpætənt/ or /ˈpeɪtənt/) is a set of exclusive rights In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. Which is a "prerogative" is in effect an exclusive right, the term is restricted for use for official granted by a state A sovereign state is a political association with effective internal and external sovereignty over a geographic area and population which is not dependent on, or subject to any other power or state. While in abstract terms a sovereign state can exist without being recognised by other sovereign states, unrecognised states will often find it hard to (national government) to an inventor or their assignee for a limited period of time The term of a patent is the maximum period during which it can be maintained into force. It is usually expressed in number of years either starting from the filing date of the patent application or from the date of grant of the patent. In most patent laws, renewal annuities or maintenance fees have to be regularly paid in order to keep the patent in exchange for a public disclosure of an invention An invention is a new composition, device, or process. An invention may be derived from a pre-existing model or idea, or it could be independently conceived in which case it may be a radical breakthrough. In addition, there is cultural invention, which is an innovative set of useful social behaviors adopted by people and passed on to others.

The procedure for granting patents, the requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims Patent claims are usually in the form of a series of specified elements and corresponding limitations, or more precisely noun phrases, following the description portion of the invention in a patent or patent application. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent defining the invention which must be new Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application, non-obvious The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented, and useful In United States patent law, utility is a patentability requirement. Today, the utility requirement is the lowest bar and is easily met. Largely utility is used to prevent the patenting of inoperative devices such as perpetual motion machines. Utility is required by the patent law: 35 U.S.C. § 101, "inventions patentable", and 35 U.S.C or industrially applicable In patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this context, the concept of "industry" is far-. In many countries, certain subject areas Patentable, statutory or patent-eligible subject matter is subject matter which is susceptible of patent protection. The laws or patent practices of many countries suggest that certain subject matter is or is not something for which a patent should be granted are excluded from patents, such as business methods Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking, tax compliance etc. Business method patents are a relatively new species of patent and there have been several reviews investigating the appropriateness of patenting business methods and mental acts. The exclusive right granted to a patentee in most countries is the right to prevent others from making, using, selling, or distributing the patented invention without permission.^[1]

Under the World Trade Organization The World Trade Organization is an international organization designed by its founders to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1947's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. It was negotiated at the end of the Uruguay Round of the, patents should be available in WTO member states for any inventions, in all fields of technology,^[2] and the term of protection available should be the minimum twenty years.^[3] Different types of patents may have varying patent terms The term of a patent is the maximum period during which it can be maintained into force. It is usually expressed in number of years either starting from the filing date of the patent application or from the date of grant of the patent. In most patent laws, renewal annuities or maintenance fees have to be regularly paid in order to keep the patent (i.e., durations).

Definition

The term patent usually refers to a right granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. The additional qualification utility patent is used in the United States to distinguish it from other types of patents (e.g. design patents In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents) but should not be confused with utility models A utility model is an intellectual property right to protect inventions. This right is available in a number of national legislations, as described below. It is very similar to the patent, but usually has a shorter term and less stringent patentability requirements granted by other countries. Examples of particular species of patents for inventions include biological patents A biological patent is a patent relating to an invention or discovery in biology. It can be a composition of matter, a method for obtaining or using one or more thereof, or a product combining such things. Even when a natural biological substance itself is patented , this has been permitted in the US as long as they are sufficiently "isolated&, business method patents Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking, tax compliance etc. Business method patents are a relatively new species of patent and there have been several reviews investigating the appropriateness of patenting business methods, chemical patents A chemical patent or pharmaceutical patent is a patent for an invention in the chemical or pharmaceuticals industry. Strictly speaking, in most jurisdictions, there are essentially no differences between the legal requirements to obtain a patent for an invention in the chemical or pharmaceutical fields, in comparison to obtaining a patent in the and software patents Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".[a 1].

Some other types of intellectual property rights are referred to as patents in some jurisdictions: industrial design rights An Industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three dimensional form containing aesthetic value. An industrial are called design patents in some jurisdictions (they protect the visual design of objects that are not purely utilitarian), plant breeders' rights are sometimes called plant patents, and utility models or Gebrauchsmuster In German and Austrian patent laws, the Gebrauchsmuster , also known as German utility model or Austrian utility model, is a patent-like, intellectual property right protecting inventions are sometimes called petty patents or innovation patents. This article relates primarily to the patent for an invention, although so-called petty patents and utility models may also be granted for inventions.

Certain grants made by the monarch in pursuance of the royal prerogative were sometimes called letters patent Letters patent are a type of legal instrument in the form of an open letter issued by a monarch or government, granting an office, right, monopoly, title, or status to a person or to some entity such as a corporation. The opposite of letters patent are letters close (Latin: litterae clausae), which are personal in nature and sealed so that only, which was a government notice to the public of a grant of an exclusive right to ownership and possession. These were often grants of a patent-like monopoly and predate the modern origins of the patent system. For other uses of the term patent see notably land patents A land patent is evidence of right, title, and/or interest to a tract of land, usually granted by a central, federal, or state government to an individual or private company, which were land grants by early state governments in the USA, and printing patent, a precursor of modern copyright. These meanings reflect the original meaning of letters patent that had a broader scope than current usage.

Etymology

The word patent originates from the Latin Latin or sometimes Roman is an Italic language originally spoken in Latium and Ancient Rome. Although often considered a dead language, in view of the fact that it has no native, fluent speakers, Latin continues to be taught in schools and has been, and currently is, used in the process of new word production in modern languages from many patere, which means "to lay open" (i.e., to make available for public inspection), and more directly as a shortened version of the term letters patent Letters patent are a type of legal instrument in the form of an open letter issued by a monarch or government, granting an office, right, monopoly, title, or status to a person or to some entity such as a corporation. The opposite of letters patent are letters close (Latin: litterae clausae), which are personal in nature and sealed so that only, which originally denoted an open for public reading royal decree A decree is a rule of law issued by a head of state , according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for this concept may vary from country to country—the executive orders made by the President of the United States, for example, are decrees (although a decree is not granting exclusive rights to a person.

History

In 500 BC, in the Greek city of Sybaris Sybaris was an ancient city of Magna Graecia on the western shore of the Gulf of Taranto. The wealth of the city in the 6th century BC was such that the Sybarites became synonymous with pleasure and luxury. The modern town of Sibari lies near the ruins of the Greek city; it is a frazione of the comune of Cassano allo Ionio, in the province of (located in what is now southern Italy), "encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year."^[5]

The Florentine Florence (Italian: Firenze listen , pronounced [fiˈrɛntse]; alternative obsolete spelling: Fiorenza, Latin: Florentia) is the capital city of the Italian region of Tuscany and of the province of Florence. It is the most populous city in Tuscany, with 367,569 inhabitants (1,500,000 in the metropolitan area) architect Filippo Brunelleschi Filippo Brunelleschi was one of the foremost architects and engineers of the Italian Renaissance. All of his principal works are in Florence, Italy. As explained by Antonio Manetti, who knew Brunelleschi and who wrote his biography, Brunelleschi "was granted such honors as to be buried in the Basilica di Santa Maria del Fiore, and with a received a three-year patent for a barge with hoisting A hoist is a device used for lifting or lowering a load by means of a drum or lift-wheel around which rope or chain wraps. It may be manually operated, electrically or pneumatically driven and may use chain, fiber or wire rope as its lifting medium. The load is attached to the hoist by means of a lifting hook gear, that carried marble along the Arno River The Arno is a river in the Tuscany region of Italy. It is the most important river of central Italy after the Tiber in 1421.^[6] In 1449, King Henry VI granted the first patent with a license of 20 years to John of Utynam for introducing the making of colored glass to England.^[7]

Patents in the modern sense originated in 1474, when the Republic of Venice The Most Serene Republic of Venice (Venetian: Repùblica Vèneta or Repùblica de Venesia, Italian: Serenissima Repubblica di Venezia) or Venetian Republic was a state originating from the city of Venice in Northeastern Italy. It existed for over a millennium, from the late 7th century AD until the year 1797. It is often referred to as La enacted a decree that new and inventive devices, once put into practice, had to be communicated to the Republic to obtain the right to prevent others from using them.^[8]

England followed with the Statute of Monopolies The Parliament of England's Statute of Monopolies of 1623 provided strict rules on the circumstances in which the first inventor of a given item could be given exclusive rights to that invention, provided that it was not “contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally in 1623 under King James I James VI & I was King of Scots as James VI from 1567 to 1625, and King of England and Ireland as James I from 1603 to 1625, which declared that patents could only be granted for "projects of new invention." During the reign of Queen Anne Anne became Queen regnant of England, Scotland and Ireland on 8 March 1702, succeeding her brother-in-law and cousin, William III of England and II of Scotland. Her Catholic father, James II and VII, was deemed by the English Parliament to have abdicated when he was forced to retreat to France during the Glorious Revolution of 1688/9; her brother- (1702–1714), the lawyers of the English Court developed the requirement that a written description of the invention must be submitted.^[9] The patent system in many other countries, including Australia, is based on British law and can be traced back to the Statute of Monopolies.^{[citation needed]}

In France, patents were granted by the monarchy and by others institutions like the "Maison du Roi".^{[citation needed]} The Academy The French Academy of Sciences is a learned society, founded in 1666 by Louis XIV at the suggestion of Jean-Baptiste Colbert, to encourage and protect the spirit of French scientific research. It was at the forefront of scientific developments in Europe in the 17th and 18th centuries. It is one of the earliest academies of sciences examined novelty.^[10] Examinations were generally done in secret with no requirement to publish a description of the invention. Actual use of the invention was deemed adequate disclosure to the public.^[11] The modern French patent system was created during the Revolution in 1791. Patents were granted without examination since inventor's right was considered as a natural one ^[12]

In the United States, during the so-called colonial period and Articles of Confederation The Articles of Confederation and Perpetual Union, customarily referred to as the Articles of Confederation, was the first constitution of the United States of America and legally established the union of the states. The Second Continental Congress appointed a committee to draft the Articles in June 1776 and sent the draft to the states for years (1778–1789), several states adopted patent systems of their own. The first Congress adopted a Patent Act The Patent Act of 1790 was the United States' first patent statute. It was entitled An Act to promote the progress of useful Arts, and passed on April 10, 1790. It granted the applicant the "sole and exclusive right and liberty of making, constructing, using and vending to others to be used" of his invention, for a period of fourteen, in 1790, and the first patent was issued under this Act on July 31, 1790 (to Samuel Hopkins Samuel Hopkins was an American inventor from Philadelphia, Pennsylvania, and Pittsford, Vermont. On July 31, 1790 he was granted the first U.S. patent, under the new U.S. patent statute just signed into law by President Washington on April 10, 1790. Hopkins had petitioned for a patent on an improvement "in the making of Pot ash and Pearl ash of Vermont for a potash Potash is the common name for potassium carbonate and various mined and manufactured salts that contain the element potassium in water-soluble form. In some rare cases, potash can be formed with traces of organic materials such as plant remains production technique).

Law

Effects

A patent is not a right to practice or use the invention.^[13] Rather, a patent provides the right to exclude others^[13] 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 ^[3] subject to the payment of maintenance fees. A patent is, in effect, a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.

The rights conveyed by a patent vary country-by-country. For example, in the United States, a patent covers research, except "purely philosophical" inquiry. A U.S. patent is infringed by any "making" of the invention, even a making that goes toward development of a new invention—which may itself become subject of a patent.

A patent being an exclusionary right does not, however, necessarily give the owner of the patent the right to exploit the patent.^[13] For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.^[13] If 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 only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.

Some countries have "working provisions" 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.

Enforcement

Patents can generally only be enforced through civil lawsuits (for example, for a U.S. patent, by an action for patent infringement in a United States federal court), although some countries (such as France and Austria) have criminal penalties for wanton infringement.^[14] Typically, the patent owner will seek monetary compensation for past infringement, and will seek an injunction prohibiting the defendant from engaging in future acts of infringement. To prove infringement, the patent owner must establish that the accused infringer practices 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 important limitation on the ability of a patent owner to successfully assert the patent in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents not valid. A patent can be found invalid on grounds that are set out in the relevant patent legislation that vary between countries. Often, the grounds are a subset of the 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.

The vast majority of patent rights, however, are not determined through litigation, but are resolved privately through patent licensing.^{[clarification needed]} Patent licensing agreements are effectively contracts in which the patent owner (the licensor) agrees to forgo their right to sue the licensee for infringement of the licensor's patent rights, usually in return for a royalty or other compensation. It is common for companies engaged in complex technical fields to enter into dozens of license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to share the benefits of using each other's patented inventions.

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^[15] and inventors may be required to assign inventions to their employers under a contract of employment. 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.^[16]

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.^[17] 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, therefore, territorial in nature.

Commonly, a nation 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.

There is a trend towards global harmonization of patent laws, with the World Trade Organization (WTO) being particularly active in this area. The TRIPs Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPs agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

A key international convention relating to patents is the Paris Convention for the Protection of Industrial Property, initially signed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The most significant aspect of the convention is the provision of the right to claim priority: filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Because the right to a patent is intensely date-driven, this right is fundamental to modern patent usage.

The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.^[18] 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.

In addition, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) [administered by the European Patent Organisation (EPOrg)], and the Patent Cooperation Treaty (PCT) (administered by WIPO and covering more than 140 countries), 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.

Application and prosecution

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, although it is not always a requirement to submit these when first filing the application. The claims set out what the applicant is seeking to protect in that they define what the patent owner has a right to exclude others from making, using, or selling, as the case may be. In other words, the claims 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.^[19][20][21]

For a patent to be granted, that is to take legal effect in a particular country, the patent application must meet the patentability requirements of that country. Most patent offices examine the application for compliance with these requirements. If the application does not comply, objections are communicated to the applicant or their patent agent or attorney and one or more opportunities to respond to the objections to bring the application into compliance are usually provided.

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, although the US is a notable exception. 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.

Economics

Rationale

There are four primary incentives embodied in the patent system: to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to design around and improve upon earlier patents.^[22]

1. Patents provide incentives for economically efficient research and development (R&D). A study conducted annually by the IPTS shows that the 2,000 largest global companies invested more than 430 billion euros in 2008^[23] in their R&D departments. If the investments can be considered as inputs of R&D, 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^[24] of their technological profiles. Without patents, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs.^{[citation needed]}Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic ideas underlying traditional property rights.^{[22][specify]}
2. In accordance with the original definition of the term "patent," 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, in many cases, they would prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to humanity.^{[22][specify]}
3. In many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering costs — computer processors, software, and pharmaceuticals for example), once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (For example, the internal "rule of thumb" at several computer companies in the 1980s was that post-R&D costs were 7-to-1). Unless there is some way to prevent copies from competing at the marginal cost of production, companies will not make that productization investment.^{[22][not in citation given]}

One effect of modern patent usage is that a small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital from licensing the invention and may allow innovation to occur because he or she may choose to not manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability.^[25]

Costs

Some of the costs to society associated with the granting of a patent are: the immediate costs associated with preparing the patent; patent office work; legal costs associated with prosecuting alleged infringements; business costs associated with those legal actions; increasing the cost of determining whether a method is covered by an existing patent, and reduced certainty in the result; restrictions on the use of the patented method (particularly in cases where the method is redeveloped independently).

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 Euro.^[26] 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, direct legal costs of patent litigation are on average in the order of a million dollars per case, not including associated business costs, based on an American Intellectual Property Law Association (AIPLA) survey of patent lawyers (2005), and court documents for a sample of 89 court cases where one side was ordered to pay the other side's legal fees.^[27]

Criticism

Patents have been criticized both in principle and in implementation.

In principle, patents have been criticized as a restraint of trade, for conferring a negative right upon a patent owner, permitting them to exclude competitors from using or exploiting the invention, even if the competitor subsequently develops the same invention independently. This may be subsequent to the date of invention, or to the priority date, depending upon the relevant patent law (see First to file and first to invent).^[28]

As state-granted monopolies, patents have been criticized as inconsistent with free trade. On that basis, in 1869 the Netherlands abolished patents, and did not reintroduce them until 1912.^[29]

In implementation, patents have been criticized for being granted on already-known inventions. In 1938, R. Buckminster Fuller wrote of the patent application process in the United States:^[30]

At present, the files, are so extraordinarily complex and the items so multitudinous that a veritable army of governmental servants is required to attend them and sort them into some order of distinguishable categories to which reference may be made when corresponding with patent applicants for the purposes of examiner citation of "prior art" disclosure. This complexity makes it inevitable that the human-equation involved in government servants relative to carelessness or mechanical limitations should occasion the granting of multitudes of "probably" invalid patent claims.

Patents may hinder innovation as well in the case of "troll" entities. A holding company, pejoratively known as a "patent troll", owns a portfolio of patents, and sues others for infringement of these patents while doing little to develop the technology itself.^[31] Other commentators suggest that patent trolls are not bad for the patent system at all but instead realign market participant incentives, make patents more liquid, and clear the patent market.^[32]

Another theoretical problem with patent rights was proposed by law professors Michael Heller and Rebecca Sue Eisenberg. Based on Heller's theory of the tragedy of the anticommons, the authors argued that intellectual property rights may become so fragmented that, effectively, no one can take advantage of them as to do so would require an agreement between the owners of all of the fragments.^[33]

Pharmaceutical patents prevent generic alternatives to enter the market until the patents expire, and thus maintains high prices for medication.^[34] This can have significant effects in the developing world, as those who are most in need of basic essential medicines are unable to afford such high priced pharmaceuticals.^[35] Critics also question the rationale that exclusive patent rights and the resulting high prices are required for pharmaceutical companies to recoup the large investments needed for research and development.^[34] One study concluded that marketing expenditures for new drugs often doubled the amount that was allocated for research and development.^[36]

In one response to these criticisms, one review concluded that less than 5 percent of medicines on the World Health Organization's list of essential drugs are under patent.^[37] Also, the pharmaceutical industry has contributed US$2 billion for healthcare in developing countries, providing HIV/AIDS drugs at lower cost or even free of charge in certain countries, and has used differential pricing and parallel imports to provide medication to the poor.^[37] Other groups are investigating how social inclusion and equitable distribution of research and development findings can be obtained within the existing intellectual property framework, although these efforts have received less exposure.^[37]

Brazil filed a proposal in 2010 with the WIPO Standing Committee on the Law of Patents about the imbalance of rights between IP title holders and the society as a whole with emphasis on the imbalance of benefits from strong IP rights between the few developed countries and the majority of member states.^[38] Such imbalance is also recognized between freedom rights and exclusion rights by the computing profession^[39].

Concerns of a similar order have also been documented elsewhere, showing that public campaigns have had a concern for "preventing the over-reach" of IP protection including patent protection, and "to retain a public balance in property rights" of this kind.^[40] The same source also noted the shift that had taken place away from the historical classification of such rights as "grants of privilege", towards referring to them in terms of property and rights; a change that encouraged a change of view of the relation of sovereign governments towards them, away from something that the government "may grant" towards a "duty to uphold them".^[40]

See also

• List of patent legal concepts
• List of patent related topics
• List of people associated with patent law
• Category:Patent law

References

1. ^ Patents: Frequently Asked Questions, World Intellectual Property Organization, Retrieved on 22 February 2009
2. ^ Article 27.1. of the TRIPs Agreement.
3. ^ ^{a b} Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
4. ^ U.S. Patent Activity 1790 to the Present
5. ^ 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.
6. ^ Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800, Cambridge University Press, 2002, ISBN 0-521-89399-2, 9780521893992, page 11.
7. ^ Nexis.com.
8. ^ (German) Helmut Schippel: Die Anfänge des Erfinderschutzes in Venedig, in: Uta Lindgren (Hrsg.): Europäische Technik im Mittelalter. 800 bis 1400. Tradition und Innovation, 4. Aufl., Berlin 2001, S.539-550 ISBN 3-7861-1748-9. "Wolfgang-Pfaller.de: Patentgesetz von Venedig" (in German / Italian). http://www.wolfgang-pfaller.de/venedig.htm.
9. ^ "History of Copyright". UK Intellectual Property Office. 2006. http://www.patent.gov.uk/about-history-copy.htm. Retrieved 2007-08-12.
10. ^ MarketsAndPatents.com, Nowotarski, Bakos, “A Short History of Private Patent Examination”, Insurance IP Bulletin October 2009
11. ^ Frank D. Prager, “Proposals for the Patent Act of 1790", Journal of the Patent and Trademark Office Society, March 1954, vol XXXVI, No. 3, pp 157 et Seq., citing J. Isore in Revue Historique de Droit Francais, 1937 pp. 117 et Seq.
12. ^ Gabriel Galvez-Behar, La République des inventeurs. Propriété et organisation de l'innovation en France, 1791-1922, Presses universitaires de Rennes, 2008, ISBN 2-7535-0695-7, 9782753506954.
13. ^ ^{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)
14. ^ DLA Piper Rudnick Gray Cary (2005) Patent Litigation across Europe, handout available as per CeCollect.com.
15. ^ "Assignee (Company) Name". Help Page. U.S. Copyright and Trademark Office (USPTO). http://www.uspto.gov/web/patents/patog/week39/OG/help/help.htm#Assignee%20(Company)%20Name. Retrieved 2007-07-25.
16. ^ See Section 39 of the UK Patents Act as an example. The laws across Europe vary from country to country but are generally harmonised
17. ^ Article 28.2 TRIPs: "Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.".
18. ^ United Kingdom law requiring no explicit authority due to the Supremacy of Parliament.
19. ^ IP Australia website, What does 'patent pending' mean?, Consulted on August 5, 2009.
20. ^ USPTO web site, Patent Marking and "Patent Pending" (Excerpted from General Information Concerning Patents print brochure), Consulted on August 5, 2009.
21. ^ UK Intellectual Property Office web site, Display your rights, (under "IPO Home> Types of IP> Patents> Managing your patents> Using and enforcing") Consulted on August 5, 2009.
22. ^ ^{a b c d} Howard T. Markey (chief judge of the United States Court of Customs and Patent Appeals and later of the Court of Appeals for the Federal Circuit), Special Problems in Patent Cases, 66 F.R.D. 529, 1975.
23. ^ The 2009 EU Industrial R&D Investment Scoreboard produced by the Institute for Prospective Technological Studies
24. ^ Technological profiles for global companies by analysing their patent portfolios
25. ^ Stim, Rishand, "Profit from Your Idea: How to Make Smart Licensing Decisions", ISBN 1-4133-0450-8 (Published 2006)
26. ^ With the following assumptions: "18 pages (11 pages description, 3 pages claims, 4 pages drawings), 10 claims, patent validated in 6 countries (Germany, United Kingdom, France, Italy, Spain, Switzerland), excl. in-house preparation costs for the patentee" (the costs relate to European patents granted in 2002/2003), in European Patent Office, The cost of a sample European patent - new estimates, 2005, p. 1.
27. ^ Bessen, James; Meurer, Michael James (2008). Patent failure: how judges, bureaucrats, and lawyers put innovators at risk. p. 132. . The containing chapter (‘The Costs of Disputes’) also tries to quantify associated business costs.
28. ^ Gholz, Charles L. (December 2000). "First to File or First to Invent?". Journal of the Patent and Trademark Office Society 82: 891. http://www.oblon.com/Pub/GholzFirsttoFile.html. Retrieved 2008-02-15.
29. ^ Chang, Ha-Joon. "Kicking Away the Ladder: How the Economic and Intellectual Histories of Capitalism Have Been Re-Written to Justify Neo-Liberal Capitalism". Post-Autistic Economics Review. 4 September 2002: Issue 15, Article 3. Retrieved on 8 October 2008.
30. ^ *Fuller, R. Buckminster (1938). Nine Chains to the Moon: An Adventure Story of Thought (First ed.). Phidelphia: Lippincott. p. 277.
31. ^ Quinion, Michael (June 17, 2006). "Patent Troll". World Wide Words. http://www.worldwidewords.org/turnsofphrase/tp-pat1.htm. Retrieved 2008-02-15.
32. ^ McDonough III, James F. (January 31, 2006). "The Myth of the Patent Troll". The Myth of the Patent Troll. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=959945&rec=1&srcabs=980776. Retrieved 2010-01-17.
33. ^ Heller, Michael; Eisenberg, Sue (May 1, 1998). "Can Patents Deter Innovation? The Anticommons in Biomedical Research". Science 280: 698–701.
34. ^ ^{a b} Banta, D.H. (2001). "Worldwide Interest in Global Access to Drugs". Journal of the American Medical Association 285 (22): 2844–46.
35. ^ Ferreira, L. (2002). "Access to Affordable HIV/AIDS Drugs: The Human Rights Obligations of Multinational Pharmaceutical Corporations". Fordham Law Review 71 (3): 1133–79.
36. ^ Barton, J.H.; Emanuel, E.J. (2005). "The Patents-Based Pharmaceutical Development Process: Rationale, Problems and Potential Reforms". Journal of the American Medical Association 294 (16): 2075–82.
37. ^ ^{a b c} Ghafele, Roya (August 2008). "Perceptions of Intellectual Property: A Review". London: Intellectual Property Institute. http://www.ip-institute.org.uk/pdfs/Perceptions%20of%20IP.pdf. Retrieved 2009-11-05.
38. ^ WIPO, SCP/14/7, Proposal from Brazil, Standing Committee on the Law of Patents, Fourteenth Session, January 20, 2010.
39. ^ Kiesewetter-Köbinger, Swen (2010). "Programmers' Capital". Computer 43 (2): 108, 106–107. doi:10.1109/MC.2010.47.
40. ^ ^{a b} Susan K Sell (2003), Private Power, Public Law: The Globalization of Intellectual Property Rights, Cambridge, 2003 (Cambridge University Press: Cambridge Studies in International Relations: 88); quoted from page 179, see also page 5.

External links

• Directory of Intellectual Property Offices, maintained by World Intellectual Property Organization (WIPO)
• Useful links, "Your guide to intellectual property information and services on the internet.", maintained by the European Patent Office
• OECD Patent statistics

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