Talk:Patent
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Letters patent, monopoly, software, and so on
- "Furthermore, as the grant of letters patent only grants the right to exclude others from practicing the invention and does not affirmatively grant the right to practice the invention, a patent is not considered a monopoly right."
That is wrong. A patent IS a state granted monopoly, by definition. From the view of an economist it plays no role whether you can license it or not --- as you are able to cash in the "monopoly rent", as you are able to select the market players. When you can forbid others to use the invention you got a monopoly. You can be the only market player.
- Frequently the impression from popular discussions is that "one can't get software patents in Europe", the reality is quite different; there are many issued software patents in Europe.
Munich Convention forbids software patents. See also EPC 52(2).
- Not so. Munich Convention says that patentability of subject matter in a European Patent Application shall be excluded only to the extent that it relates to a computer program as such. Paraphrasing the law is always likely to vary the intended meaning.
---> This is a reinterpretation based on Article 5.3 (the as such clause) put forward by the EPO legal escape to circumvent the exclusion of Art 52.2. 5.3 only clarifies 5.2, most European courts do not agree with the 5.2 interpretation of the EPO. Prof. Lenz wrote a nice legal analysis of Article 5.2 but unfortunately it is only available in German language.
- The words as such are crucial to understanding this area of the law. It all boils down to understanding that patents are generally granted for things that make a technical contribution to the art. This principle applies across all technical fields. Software is no exception. The snag is that software naturally causes computers to operate, which I guess could be called technical. Merely loading a new program into a computer cannot be considered patentable, but loading a program into a computer that makes the computer do something completely new must be considered patentable. The newly configured computer would be considered a 'new and inventive product', so why not the software that made it that way?
- If you come up with a system which is designed to deliver a technical solution to a problem, then it's only fair you should get a patent for the system. If the system can be implemented by a general purpose computer (e.g. a PC) configured by a software product (e.g. sold on a CD-ROM), then unless a patent can be obtained for the software product as a separate article of commerce then the patentee is in a difficult situation and has to jump through more hoops to get a court to listen to him. This is the main driver behind the EPO interpreting its own law the way it has.--Baggie 09:19, 11 May 2004 (UTC)
Baggie, you are wrong. the as such clause is e.G. missed in scandinavia because it just clarifies. It was introduces by the Germans in the 70th. The as such clause was reinterpreted in that way you describe, but this is not the original meaning, but what legal science and monopoly commissions criticised as legal escape of the EPO. Softweare is excluded form patentability. But of course software/mathematics ecc. may be part of "technical" problem. But you have to know that in patent pratice that was interpreted very wide up to the current situation that you just have to reword your "software invention" and describe a general purpose computer, but this is just formal circumvention of EPC 52 performed by the patent system..
Refering to abuse of patents (dead topic)
The new material on "abuse of patents" suffers from serious POV defects. -- NetEsq 22:50 Jan 8, 2003 (UTC)
- Maybe there should be a separate page for "current controversies in patent law". Several commentators have noted that the US Patent office is overburdened, resulting in inappropriate issuance of patents. If we just need to write "commentators have noted...", then do that. This has mostly focused on patents related to genes and other biological discoveries. I brought up the patent extension issue specifically because of the announcement today that Bristol had settled an anti-trust suit for this activity. Perhaps it is history now, and should go in an appropriate heading/article:
- Unfortunately, that article is poorly written and does not explain what really was going on. Basically, under the Hatch-Waxman act, a brand name drug maker can register a pharmaceutical patent with the FDA that will preclude a generic drug maker from developing a product covered by the patent until the patent expires. What Bristol-Myers was accused of was fradulently claiming to the FDA that the scope of newly issuing patents did cover the brand name drug (thereby automatically triggering delays of the generic drug maker) when they did not. Therefore, this is not an abuse of an overburdened Patent Office but of the Food and Drug Administration in a regulatory regime specific to generic drugs. This content should go under a Hatch-Waxman Act or Generic drug article, not in patents and, if referring to this, the abuse of patents section is incorrect as written. Stephen C. Carlson 05:19 Jan 9, 2003 (UTC)
- Stephen, it sounds like you're very knowledgeable on this subject. Why don't you work on making the article better? - Zoe
- I tried to balance the example of patent extension with an example of patent violation (both are anecdotal, I admit). I believe that the justification for an institution is important in order to understand that institution. Consequently, failure of the institution to meet its expectations is also important. The "abuse" section is clearly of a different tone than the technical/lawyerish discription in the above sections. If we get away from the technical aspects, we open up the risk of getting into a debate. However, I don't think that it is complete without discussing how this institution actually behaves.
- This article is long enough as it is, so such examinations should probably go in a new article. Sound good? Can you recommend any names for such an article?
- Minor factual error in the last paragraph - James I died in 1625, which is
inconsistent with the 1693 date quoted. Other web sources cite 1624 for the Statute of Monopolies - Colin Bell (crb11@ntlworld.com)
-- Agree that touching on issues of controversy / areas of proposed patent reform should be moved somewhere else. There are many areas and even trying to list the major dysfunctions means an arbitrary laundry list. Many technical people are particularly focused on software patents and issues of "technicality" in the EU but there are many other areas currently in play (eg first to invent, injunction reform, patent "trolls", etc.). Plus the extra activity these days in the US Congress re patent reform. Just too much. --Gene Rhough 18:23, 3 May 2005 (UTC)
Sheesh! I can't believe nobody got the joke yet: my explanation of patent nonsense is an example of it and should be moved to the bad jokes page. --User:Ed Poor
- No, it wasn't patent nonsense but instead merely non-NPOV. --Damian Yerrick
- Arguably it was patent nonsense to write "Patent nonsense is nonsensical ideas about patents, particularly the view that a patent provides intellectual property rights.", except that I have heard the term used (jokingly) to mean that -- or from an NPOV, "Patent nonsense is a term that some people in favor of intellectual property law reform use satirically to deride the view that a patent is primarily intended to provide monopoly rights to creators of intellectual property.". So it wasn't patent nonsense at all! (Even though it may still have been a bad joke.) -- Toby Bartels
Wrong statement
"Furthermore, as the grant of letters patent only grants the right to exclude others from practicing the invention and does not affirmatively grant the right to practice the invention, a patent is not considered a monopoly right."
---this is nonsense, in economics that makes no difference and patents are regarded as monopoly rights. It makes no difference that the monopoly right can be granted to others.
---> it is even more sophisticated: It is "no monopoly right" because patents don't give you a positive right to exercise your invention but only to exclude others from using it. Anyway, a patent is a monopoly grant in economics and the effect is the same. The phrase shall be reworded and put emphasis on positive wording.
---> It is not a monopoly because in the case where you have blocking patents, a patentee may be completely unable to make or use the invention he has a patent on. This is no monopoly. It is only a monopoly contingent on no one else having a patent that covers the patentee's invention. To simplify, A gets a patent, B gets a patent on an improvement to A's patent. B may not practice his invention, may not even enter the market, unless A allows him to. He does not have a monopoly when he cannot enter the market. Yes, this is a fine distinction, but it is properly made, and is understood to be the case by anyone who studies patent law.
---> I agree, this is not a monopoly. It is not helpful to use the layperson characterization of the grant of patent right as a grant of monopoly. It is always emphasized that these statutory rights are worded as Italic textnegative rights of exclusionItalic text. The blocking patent concept is the standard example of explanation. Economic concepts such as "monopoly" do intersect with patent law in the form of so-called patent misuse doctrine but this essentially reduces to application of anti-trust law.--Gene Rhough 17:59, 3 May 2005 (UTC)
Technical
I miss the term "technical" and the fact that patent law relates to industry, not services.
The scope of patent exclusion?
Let's say you are a bina fide manufacturer or importer in the U.S. You want to build a product that used a dirt cheap IC (possibly a part of a component built by other people) that may or may not be its vital part.
- Prior art (inferior technology): $10
- Patented IC (much better): $15
- Infringed product (as good as its legal counterpart and is much cheaper): $1
If you are building a $50 MP3 player. The use of that infringed IC is surely not excusable. What if you're are building a $50,000,000 cargo ship with a 3rd party MP3 player that used the infringed IC that you don't know about? I think you can still make or import the ship.
What are the tests of the exclusion rights? -- Toytoy 10:00, Apr 1, 2005 (UTC)
Disputed
Term of patent in the US - dubious statement
This recent addition is probably wrong, as far as I know:
- "In the United States, for applications filed prior to June 8, 1995, the patent term is seventeen years from the issue date. For applications filed on or after June 8, 1995, the term is the longer of twenty years from the earliest claimed filing date, or seventeen years from the issue date."
To my understanding, for [US patent] applications pending on June 8, 1995, the term is the longer of twenty years from the earliest claimed filing date, or seventeen years from the issue date (transitional provisions), and for applications filed after June 8, 1995, the term is twenty years from the earliest claimed filing date, period. Is this correct? Can anybody confirm? Thanks. --Edcolins 19:27, May 14, 2005 (UTC)
- 35 U.S.C. sec 154 (a)(2): Term. -- Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the patent issues and ending 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application or applications under section 120, 121, or 365(c) of this title, from the date on which the earliest such application was filed. [Note: International priority dates shall not be used to determining this term.]
- 35 U.S.C. sec 154 (b): Basically, if the USPTO fails to examine your patent application in time, your patent term may get an extension.
- 35 U.S.C. sec 154 (c)(1): Determination. -- The term of a patent that is in force on or that results from an application filed before the date that is 6 months after the date of the enactment of the Uruguay Round Agreements Act [Note: June 8, 1995] shall be the greater of the 20-year term as provided in subsection (a), or 17 years from grant, subject to any terminal disclaimers.
- On the other hand, if your patent application is obvious in light of one of your earlier application, you may be required by the USPTO to disclaim a part of your term. For example, Your patent A terminates on December 24, 2020. You filed another patent application two years later. Under normal condition, you expect patent B to last until December 24, 2022. However, it is obvious in light of patent A. So the USPTO will ask you to disclaim the part of the term after December 24, 2020.
- To a reexamed patent, the term lasts from the date of reissue to the end date of the earlier patent.
- Example: Your patent No. 6,xxx,xxx (filing: Jan 1, 2000; issue: Jan 1, 2002; end: Jan 1, 2020) is being challenged by the defendant in the USPTO. The USPTO issued a more restricted patent RE2x,xxx (filing: Jan 1, 2003; issue: Jan 1, 2004). Your patent is enforceable from Jan 1, 2004 and lasts until Jan 1, 2020.
- A medical patent may obtain an extension if you do some extra child-related research. -- Toytoy 14:11, May 19, 2005 (UTC)
- Thanks a lot. This deserved an article: Term of patent in the United States. Feel free to have a look and correct it as you see fit. Cheers. --Edcolins 20:54, May 20, 2005 (UTC)