Patent

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Contents

Overview

A Patent is a right, sometimes called Intellectual Property granted by the government to exclude others from using an invention, business process or idea for a set period of time, currently 20 years from the time an application for a patent is filed in most cases (prior to 2002, when the newly adopted time period commenced, the term was 17 years from the time a patents is granted for utility patents and 14 years from the time the patent is granted for design patents). About 90% of patents, called "utility patents" are for inventions and business processes. About 10% of patents are for new asexually reproducing plants or designs (e.g. the shape of a '57 Chevy would have been the subject of a design patent). About 90% of foreign owned U.S. patents and more than 80% of domestically owned U.S. patents are owned by corporations (corporations have owned more patents than individuals since late 1930s; in 1901 about 80% of patents were issued to individuals). The pace at which patents are issued has exploded in recent times. For example, in 2001 alone there were more patents issued than there were in the entire period from 1790 --when the patent office opened-- until 1870.

Several elements of patent law are notable.

First, to obtain a patent the idea must be explained to the patent office in a form which will become part of the public domain when the patent expires. For example, after the expiration of the patent term on a new drug, anyone can use the patent application for the drug as a straight forward roadmap to make a much cheaper generic version of that drug without incurring any research and development costs.

Second, generally speaking patents should only be awarded to the inventors of original, non-obvious ideas, a matter which often leads to litigation. Obviousness is a particularly hot question in the area of business process and software process patents.

Third, unlike a trade secret, copyright, or a trademark, an idea owner has no rights (other than to a right to obtain a patent by applying for one) until the proper government filings are made, it does not arise by operation of law to any extent.

Fourth, a patent grants a right to exclude. In other words, it permits patent holders to exclude others from using the patent, but unlike a copyright for example, simply using a patented idea is not a criminal or civil violation until the owner demands that you not do so. The burden is on the patent owner, to actively prevent infringement, rather than on the public to honor another person's right to profit from their ideas.

Fifth, patent law is not concerned with the source of a competitor's ideas. In trade secret and copyright law, a person who independently comes up with the same work or idea protected by the trade secret or copyright cannot be infringing. In patent law, even someone who independently discovers a patented idea can be excluded from using it.

Sixth, patent terms are much shorter than copyright terms. A patent lasts a couple of decades; a copyright can last a century.

Seventh, patent rights are enforceable only in federal courts not in State Courts. Appeals in patent cases are handled exclusively in the Court of Appeals for the Federal Circuit. Typically patent lawyers must have an undergraduate background in science or engineering as well as a law degree, and must be members of an exclusive federal patent bar, as well as the regular bar admission required to practice law.

Key Issues in Patent Law

Is Willful Infringement A Frivilous and Burdensome Claim?

Willful patent infringement is alleged 92%+ of the time, but is determined in only about 2% of cases, and found to be present a little more than half the time when a determination is made in the court process. Its existence as an issue in patent cases, however, significantly complicates patent cases.

Drug Patents v. Lives Lost

Patents Obtained Using Public Research

Obvious and Overbroad Patents, Especially in Business Processes

External Links

Alternate Meaning

The term "patent" also refers to a transfer of real estate from a sovereign government to an individual private owner. Most of the real estate titles in the Western United States derive from patents granted by the United States government pursuant to the homestead acts and other land grant acts. These acts, of course, ignored the prior rights of Native Americans, who were divested of them in the Indian Wars to those lands.

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