2. Chapter Five: Patents
• Basic Patent Law
• Patent system
• Silent features of patent
• Inventions
• Patents for Software
• Software and Intellectual Rights
• Examples of Patents
• Patent Law in the United States.
• Patent Guidelines
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3. Basic Patent Law
• A patent is a form of industrial property, or as it is now called, an
intellectual property.
• The owner can sell the whole or part of this property.
• A patent is a right provided by the government that allows an
inventor to stop anymore from making, selling or using an invention.
• There are three types of patents: utility patents, design patents and
plant patents.
• When the public thinks of patents they usually think of utility patents
that protect inventions, machines devices and processes.
• Design patents protect ornamental designs on inventions
• plants patents protect new forms of plants.
• The word patent denotes a monopoly right in respect of an
innovation.
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4. Patent system
• The basic purpose of the patent system is to encourage
innovation and the improvement of industrial techniques.
• In return for the disclosure of his invention; is given a
monopoly in the use of it for a period of twenty years offer,
which time it passes into the public domain.
• It is not mandatory to obtain a patent in order to protect a
new invention the inventor may instead choose to keep the
details secret.
• Instead, not all technical developments are patentable.
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5. Patent system
• activities of the trade, detailed process specifications and
modes of operation which do not involve an inventive step
may therefore be in patentable although they are capable
of protection as trade secrets or know how.
• As a matter of public policy, scientific discoveries, theories
and mathematical formulas are not patentable.
• Products whose novelty resides in the design and not in the
function are not patentable but may be protected either as
a registered design or by means of copyright.
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6. features of patent
• Must be in respect of an invention and not of a discovery
• In respect of one single invention there must be one single
patent
• A patent may be in respect of a substance or in respect of a
process
• In order to have a complete patent, the specifications and
the claims, must be clearly and distinctly mentioned.
• It is the claims and claims alone which constitute the
patent.
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7. Inventions
• The fundamental principle of patent law is that a patent is
granted only for an invention and it must be new and
useful.
• That is to say, it must have novelty of a patent that it must
be the inventor's own discovery as opposed to mere
verification of what was already known before the date of
the patent.
• Patent laws encourage private investment in new
technologies by granting to artists the right to forbid all
others to produce and distribute technological information
that is new, useful, and non obvious.
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8. Inventions cont’
• The statutory requirements for patent protection are
more harsh than those for copyright protection.
• Furthermore, because patent protection for commercial
products or processes can give a tremendous market
advantage to businesses, those seeking patents often
find opposition to their applications.
• In the case of the U.S, patent protection can be
obtained only through the U.S. Patent Office.
• Generally, only new, useful and non obvious processes
or products will be approved for patent protection.
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9. Inventions cont’
• The novelty requirement focuses on events that occur prior
to the invention.
• Under section 102 of the Patent Act in the U.S., an
invention is not novel if it is publicly used, sold, or patented
by another inventor within twelve months of the patent
application.
• This definition implements the public policy that favors
quick disclosure of technological progress.
• Often, two inventors apply for a patent for the same
product or process within the same twelve-month period.
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10. Inventions cont’
• Three factors determine who wins the patent: the date
and time that the product or process was conceived, the
date and time that the product or process was reduced to
practice, and the industry used to pursue patent protection
and perfect the discovery.
• Generally, the first inventor to conceive the product or
process has priority in the application process.
• However, if the second inventor is the first to reduce the
product or process to practice and the first inventor does
not use diligence to obtain patent protection, the second
inventor is given priority in the application process.
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11. Inventions cont’
• The utility requirement ensures that the product or process
receiving patent protection will have some beneficial use.
• The inventor must specify in the application a specific
utility for the invention.
• If the application is for a process, the process must be
useful with respect to a product.
• A process that is new and non obvious but useless does not
increase knowledge or confer any benefit on society.
• Nonobviousness is not the same as novelty.
• Not everything novel is no obvious.
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12. Inventions cont’
• However, anything that is nonobvious is novel, unless it has
already been patented.
• The nonobvious requirement focuses on existing
technology, or prior art.
• In determining whether an invention is nonobvious, the
Patent Office analyzes the prior art, examines the
differences between the invention and the prior art, and
determines the level of ordinary skill in the art.
• Generally, if an invention is obvious to a person of ordinary
skill in the relevant art, it is not patentable.
• When an inventor claims that his or her patent has been
infringed, the court generally engages in a two-step
process.
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13. Inventions cont’
• First, the court analyzes all the relevant patent documents.
• Then, the court reads the patent documents and compares them
with the device or process that is accused of infringement.
• If each element of the accused device or process
substantially duplicates an element in the patented
device or process, the court may declare that the patent
has been infringed.
• Infringement can occur only if another person uses,
makes, or sells the patented device or process without
the permission of the person who has received the
patent, or the patentee.
.
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14. Inventions cont’
• When a patented device or process is infringed(violation),
the patent holder may recover in damages an amount
equal to a reasonable royalty.
• If the infringement was willful(unruly), the infringing party
may be forced to pay three times the reasonable royalty.
• If successful in court, the patent holder may also recover
court costs and attorneys' fees.
• If the patent holder anticipates infringement, she or he
may apply for an injunction, or court order.
• An injunction in such a case would prohibit(make illegal) a
certain party from infringing the patent.
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15. Inventions cont”
• An injunction may also issue after a finding of infringement,
to prevent repeat infringement.
• Other forms of intellectual property are protected in
different ways.
• A scientific discovery, which is intended to be shared by
everyone, is covered by informal agreement in the
scientific community granting "ownership" with priority.
• No legal rights are deemed possible.
• A trademark or trade name can be registered and
protected, but that is solely for the protection of the
owner.04/12/14 15
16. Inventions cont”
• Copyright is closer in concept to patent, but is much
more concerned with protecting structure and
substance of thought than it is with providing a
monopoly on an idea or a structure.
• Indeed, ideas are not copyrightable; only their
expression and arrangement can be copyrighted.
• Ideas for inventions, however, are the basis of
monopoly; and monopoly is the original purpose of
the patent.
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17. Patents for Software
• Software or computer software is the collection of
computer programs and related data that provide the
instructions; telling a computer what to do.
• We can also say software refers to one or more computer
programs, procedures and associated documents or data
(flowcharts, manuals, etc.) held in the storage of the
computer that are related to the effective operations of a
computer system for some purposes.
• Program software performs the function of the program it
implements, either by directly providing instructions to the
computer hardware or by serving as input to another piece
of software.
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18. Patents for Software cont”
• Patents for software provides protection to software authors
and publishers. Defaulters, may not understand the
implications of their actions or the restrictions of the copyright
law.
• Here are some relevant facts:
• 1. Unauthorized copying of software is illegal. Copyright law
protects software authors and publishers, just as patent law
protects inventors.
• 2. Unauthorized copying of software by individuals can harm
the entire academic community. If unauthorized copying
proliferates on a campus, the institution may incur a legal
liability. Also, the institution may find it more difficult to
negotiate agreements that would make software more widely
and less expensively available to members of the academic04/12/14 18
19. Patents for Software cont”
• 3. Unauthorized copying of software can deprive
developers of a fair return for their work, increase prices,
reduce the level of future support and enhancement, and
inhibit the development of new software products.
• Respect for the intellectual work and property of others
has traditionally been essential to the mission of colleges
and universities.
• As members of the academic community, we value the free
exchange of ideas.
• Just as we do not tolerate plagiarism, we do not condone
the unauthorized copying of software, including programs,
applications, data bases and code.04/12/14 19
20. Patents for Software cont”
• Software can be patented; its patent can be controversial
in the software industry with many people holding
different views about it.
• The controversy over software patents is that a specific
algorithm or technique that the software has may not be
duplicated by others and is considered an intellectual
property and copyright infringement depending on the
severity.
•
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21. Software and Intellectual Rights
• Respect for intellectual labor and creativity is vital to academic
discourse and enterprise.
• This principle applies to works of all authors and publishers in
all media.
• It encompasses respect for the right to acknowledgment, right
to privacy, and right to determine the form, manner, and terms
of publication and distribution.
• Because electronic information is volatile and easily
reproduced, respect for the work and personal expression of
others is especially critical in computer environments.
• Violations of authorial integrity, including plagiarism, invasion
of privacy, unauthorized access, and trade secret and copyright
violations, may be grounds for sanctions against members of
the academic community.
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22. Examples of Patents
• Patents have the same history, starting in Italy in the 15th
and 16th centuries.
• Queen Elizabeth I may have been the first British monarch
to issue monopolies, which included but were not limited
to patents.
• By the time of James I, the business of royal monopolies
had gotten out of hand, and a succession of efforts to
control monopolies, which treated inventions differently
from other monopolies, had the somewhat inadvertent
effect of creating the first English Patent Law, although it
was not codified as such until late in the 19th century,04/12/14 22
23. Patent Law in the United States.
• By the time the U.S. Constitution was being written, the
Founding Fathers had a good philosophical grasp of
intellectual property, and provisions regarding it were
included: Article I, Section 8 gave Congress the power "To
promote the progress of Science and Useful Arts, by
securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries."
• Almost as soon as the Constitution was ratified, Congress
proceeded to set up a patent law to protect monopolies on
inventions.
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24. Patent Law in the United States.
• By 1836 the U.S. Patent Office was functioning effectively,
and it soon became apparent that invention fared better
under the U.S. system than under any other.
• A monopoly for a limited time on a specific invention
encouraged people to invent, knowing they could be
protected, and enabled them to sell rights to others who
had the capital or existing trade to manufacture and
promote an invention.
• Eg, a patent for an invention is the grant of a property right
to the inventor, issued by the United States Patent and
Trademark Office (USPTO).
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25. Patent Law in the United States cont”
• The right conferred by the patent grant is "the right to
exclude others from making, using, offering for sale, or
selling" the invention in the United States or "importing"
the invention into the United States for a limited time in
exchange for public disclosure of the invention when the
patent is granted.
• Patents are territorial in that patent protection must be
applied for in each country where protection is sought.
• The USPTO Inventors Assistance Center (IAC) provides
patent information and services to the public.
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26. Patent Law in the United States cont”
• The IAC is staffed by former Supervisory Patent Examiners
and experienced Primary Examiners who answer general
questions concerning patent examining policy and
procedure.
• A patent for an invention is the grant of a property right to
the inventor, issued by the Patent and Trademark Office.
• The term of a new patent is 20 years from the date on
which the application for the patent was filed in the United
States or, in special cases, from the date an earlier related
application was filed, subject to the payment of
maintenance fees.04/12/14 26
27. Patent Law in the United States cont”
• US patent grants are effective only within the US, US
territories, and US possessions.
• The right conferred by the patent grant is, in the language
of the statute and of the grant itself, "the right to exclude
others from making, using, offering for sale, or selling" the
invention in the United States or "importing" the invention
into the United States.
• What is granted is not the right to make, use, offer for sale,
sell or import, but the right to exclude others from making,
using, offering for sale, selling or importing the invention.
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28. Patent Guidelines
• Patents are granted after examination by the Patent Office
and confer twenty (previously seventeen) years of
monopoly rights in works that have the characteristics of
utility, novelty, and nonobviousness.
• Copyrights arise upon embodiment of works of authorship
in a tangible medium and now last for much longer than
previously; today, in most cases, they endure for the life of
the author plus seventy years. Registration, though
desirable, is not essential.
• In 1883 Great Britain consolidated its patent laws along
U.S. lines and the International Convention in Paris worked
out a way to handle patents in its many signatory nations.
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29. Patent Guidelines cont”
• The European Patent Organization of 1953 was among
several agreements that were precursors to the European
Community.
• Today there are effective ways for an inventor to file a
patent once in one country and, with suitable payments
and searches, have it accepted in nations around the world.
• Patents provide exclusive rights to inventors of qualifying
inventions.
• The inventions must be a process, an article of
manufacturing, or a machine.
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30. Patent Guidelines cont”
• Also the invention must be new, useful, and non obvious.
• Patents rights arise only after approval by the U.S. Patent
and Trademark office.
• The most common use of patents related to the internet is
for software.
• Patents can provide more complete coverage than
copyrights for qualifying software.
• Companies who develop software should consider carefully
patent protection, should evaluate costs, advantages and
disadvantages of software patents, and should consider
maintaining a software patent portfolio as a company
asset.04/12/14 30
