A formal document which gives inventors the exclusive right for a period of years to exploit the product or process they have created, either by operating it themselves or by licensing others to use it. Patents thus form part of general intellectual property legislation, like copyright, or the registration of trade-marks. The exclusive monopoly is not conferred automatically, as in the case of copyright. Patentees must define and disclose the invention to their national Patent Office, which investigates whether the invention is new and non-obvious. Patents can also be applied for through the Patent Co-operation Treaty, an international system for the multiple filing of patent applications, or the European Patent Convention, which grants protection to an invention in all countries that are parties to the convention. Patents have the disadvantage of restricting the diffusion of new techniques, but the merit of increasing the incentive to spend on research and development.
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A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) 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. 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.
Legal effect
A patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, usually 20 years from the filing date.
In order to obtain a patent, an applicant must provide a written description of his or her invention in sufficient detail for a person skilled in the art to make and use the invention.
In order for a patent to be granted, that is to take legal effect, the patent application must meet the requirements of the national law related to patentability.
A patent is an exclusionary right. It gives the patent owner the right to exclude others from infringing the patent. That does not, however, necessarily give the owner of the patent the right to exploit the patent. 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.
Patents can generally only be enforced through civil lawsuits (for example, for a US patent, by an action for patent infringement in a United States federal court), although some territories (such as France and Austria) have criminal penalties for wanton infringement. In order to prove infringement, the patent owner must establish that the accused infringer practices all of the requirements of at least one of the claims of the patent (noting that in many jurisdictions the protection 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 his or her patent in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents invalid. The grounds on which a patent can be found invalid are set out in the relevant patent legislation and vary between countries.
The vast majority of patent rights, however, are not determined through litigation, but are resolved privately through patent licensing. Patent licensing agreements are effectively contracts in which the patent owner (the licensor) agrees not to sue the licensee for infringement of the licensor's patent rights, usually in return for a royalty or other payment. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to gain access to each other's patents.
Patent ownership
In most countries, both natural persons and corporate entities may apply for a patent. If a patent issues, then each person listed as an inventor owns the patent separately from the other. For example, if two inventors are listed on a patent, then each one may grant licenses to the patent independently of the other.
The ability to assign ownership rights increases the liquidity of a patent as property.
Governing laws
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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.
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.
A highly notable international convention related to patents is the Paris Convention for the Protection of Industrial Property which was initially agreed 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, the principles of the convention are incorporated into all notable current patent systems. Because the right to a patent is intensely date-driven, this right is fundamental to modern patent usage. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.
In addition, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) (administered by the European Patent Office (EPO), and the Patent Cooperation Treaty (PCT) (administered by WIPO and covering approximately 133 countries worldwide), that centralise some portion of the filing and examination procedure.
As explained in more detail in European patent law, the EPC covers approximately 30 European states, including all European Union states except Malta. The EPO examines and grants "European patents" which, subject to minor formal requirements, then acquire the same status and force as national patents under the national laws of such EPC contracting states as the applicant designates.
The PCT does not provide a central, international, granting authority, but rather allows a number of the common procedural steps required to obtain a patent to be carried out for a single application.
Economic rationale
There are four primary justifications for granting patents: disclosure, innovation, production investment, and designing around .
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. 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.
Fourth, 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.
One interesting side effect of modern day patent usage is that the small-time inventor can use the exclusive right status to become a licensor.
Criticism
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 subsequently (either 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) independently develops the same invention. If the grant of a patent is the grant of a monopoly, the patent system may stifle competition and result in higher prices, lower quality, and shortages.
A more subtle, but theoretical, problem with patent rights was developed by law professors Michael Heller and Rebecca Eisenberg in a 1998 Science article.
All patents are published and so there is a tension between including sufficient detail in the patent application to secure patent protection and the wish to protect "trade secrets." It has been argued that the sufficiency requirements of patents are not rigorous enough and that patents are sometimes granted without any knowledge being imparted to society, this tends to be particular to software patents, wherein the source code is not revealed.
In the last 10 years, patent offices in both the U.S. and Europe have begun granting software patents.
In response to perceived problems with the grant of patents, and the evolving nature of technology and industry, there is on-going debate about, and reform of, patent systems around the world. The TRIPs agreement, developed by the WTO has led to the alignment of many patent systems with regard to certain controversial issues, such as what can be protected by patents and the issue of compulsory licences in cases of national need. There is also an active community who oppose patents and who lobby for the abolishment of patent systems.
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 in 1474.
In the United States, during the colonial period and Articles of Confederation years (1778-1789), several states adopted patent systems of their own. The first Congress adopted a Patent Act, in 1790, and the first patent was issued under this Act on July 31, 1790 (and the subject matter of that patent was for the making of potash) .
Obtaining a patent
A patent is obtained by filing a written application at the relevant patent office.
Once a patent application has been filed, a patent office examines that application for compliance with the requirements of the relevant patent law.
Once granted the patent is subject in most countries to renewal fees, generally due each year, to keep the patent in force.
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