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A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."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) In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights.
The procedure for granting patents, 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 Patent claim that define the scope of protection that is being sought. A patent may include many claims, each of which defines a specific property right.
Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO member states for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application.Article 27.1. of the TRIPs Agreement. Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years. Some countries have other patent-like forms of intellectual property, such as utility models, which have a shorter monopoly period.
In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent is often referred to as a form of intellectual property right, an expression which is also used to refer to and , and which has proponents and detractors (see also Intellectual property § The term "intellectual property").
Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called in the US, plant breeders' rights are sometimes called plant patents, and and Gebrauchsmuster are sometimes called petty patents or innovation patents. The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents.
Particular types of patents for inventions include biological patents, business method patents, and .
The English patent system evolved from its early Middle Ages origins into the first modern patent system that recognised intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish.; By the 16th century, the English The Crown would habitually abuse the granting of letters patent for Monopoly. After public outcry, King James I of England (VI of Scotland) was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere.
Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne, patent applications were required to supply a complete specification of the principles of operation of the invention for public access. Legal battles around the 1796 patent taken out by James Watt for his steam engine, established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented.
The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.James W. Cortada, "Rise of the knowledge worker, Volume 8 of Resources for the knowledge-based economy", Knowledge Reader Series, Butterworth-Heinemann, 1998, p. 141, .
The modern French patent system was created during the Revolution in 1791.Gabriel Galvez-Behar,"La République des inventeurs. Propriété et organisation de l'invention en France, 1791–1922", Rennes, Presses universitaires de Rennes, 2008, . Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844patent cost was lowered and importation patents were abolished.
The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts".Online at Library of Congress: "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875": First Congress, Session II, chapter VII, 1790: "An Act to Promote the Progress of Useful Arts" . The first patent under the Act was granted on July 31, 1790, to Samuel Hopkins of Vermont for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision was passed. The 1836 law instituted a significantly more rigorous application process, including the establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted.Joseph M. Gabriel, Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry. University of Chicago Press (2014)
Definition
The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included , which were land grants by early state governments in the US, and , a precursor of modern copyright.
History
Although there is evidence that some form of patent rights was recognized in Ancient Greece in the city of Sybaris,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, p. 1273.Phylarchus of Naucratis, "The Deipnosophists, or, Banquet of the Learned of Athenæus", Translated from Ancient Greek by H.Bohn 12:20, p. 835 the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. However, recent historical research has suggested that the 1474 Statute was inspired by laws in the Kingdom of Jerusalem that granted Monopoly to developers of novel silk-making techniques.Robert Patrick Merges. Patent Law and Policy: Cases and Materials. 7th ed., Chapter 1. Patents were systematically granted in Venice as of 1474, where they issued a decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.M. Frumkin, "The Origin of Patents", Journal of the Patent Office Society, March 1945, Vol. XXVII, No. 3, pp. 143 et seq.
Gender gap in patents
In the US, married women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 did refer to "she", married women were unable to own property in their own name and were also prohibited from rights to their own income, including income from anything they invented. This historical gender gap has lessened over the course of the 20th and 21st centuries, however, disparity is still prevalent. In the UK, for example, only 8% of inventors were female as of 2015. This can partly be attributed to historical barriers for women to obtain patents, as well as to the fact that women are underrepresented in traditionally "patent-intensive" sectors, particularly STEM sectors. Marcowitz-Bitton et al. argue that the gender gap in patents is also a result of internal bias within the patent system.
Innovation decline
The number of patent applications filed each year has been growing for most countries although not smoothly, and jumps in activity are often observed due to changes in local laws. The high number of patent families for Spain in the 1800s is related to the superior preservation and cataloguing of the data by Spanish Patent and Trademark Office compared to other countries (see 1836 U.S. Patent Office fire). The US was the World's leader in terms of patent families filed between 1900 and 1966, when Japan took over. Since 2007 PR China leads.
Similar declines have been noted not only for the number of patents, but also for other measures of innovation output.Gold ER. The fall of the innovation empire and its possible rise through open science. Research Policy. Jun 2021;50(5):13. 104226.
Several hypotheses have been proposed as explanations for the observed decline:
A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent. If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.
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.
Infringement includes literal infringement of a patent, meaning they are performing a prohibited act that is protected against by the patent. There is also the Doctrine of Equivalents. This doctrine protects from someone creating a product that is basically, by all rights, the same product that is protected with just a few modifications. In some countries, like the United States, there is liability for another two forms of infringement. One is contributory infringement, which is participating in another's infringement. This could be a company helping another company to create a patented product or selling the patented product which is created by another company. There is also inducement to infringement, which is when a party induces or assists another party in violating a patent. An example of this would be a company paying another party to create a patented product in order to reduce their competitor's market share. This is important when it comes to gray market goods, which is when a patent owner sells a product in country A, wherein they have the product patented, then another party buys and sells it, without the owner's permission, in country B, wherein the owner also has a patent for the product. With either national or regional exhaustion being the law the in country B, the owner may still be able to enforce their patent rights; however, if country B has a policy of international exhaustion, then the patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country.
An accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim. A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of 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.
Patent license are in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, or import the claimed invention, usually in return for a royalty or other compensation. It is common for companies engaged in complex technical fields to enter into multiple 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. Freedom Licenses like the Apache 2.0 License are a hybrid of copyright/trademark/patent license/contract due to the bundling nature of the three intellectual properties in one central license. This can make it difficult to enforce because patent licenses cannot be granted this way under copyright and would have to be considered a contract.
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 market liquidity of a patent as property. Inventors can obtain patents and then sell them to third parties. Article 28.2 TRIPs : " Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.". 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.
Commonly, a nation or a group of nations 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.
The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.United Kingdom law requiring no explicit authority due to the Supremacy of Parliament. 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.
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.
Internationally, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC) constituting, 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. 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 Paris Convention set a minimum patent protection of 20 years, but the most significant aspect of the convention is the provision of the right to claim priority right: 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. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30-month priority for applications as opposed to the standard 12 the Paris Convention granted. A patent application filed under the PCT is called an international application, or PCT application. The steps for PCT applications are as follows:
1. Filing the PCT patent application
2. Examination during the international phase
3. Examination during the national phase.
Alongside these international agreements for patents there was the Patent Law Treaty (PLT). This treaty standardized the filing date requirements, standardized the application and forms, allows for electronic communication and filing, and avoids unintentional loss of rights, and simplifies patent office procedures.
Sometimes, nations grant others, other than the patent owner, permissions to create a patented product based on different situations that align with public policy or public interest. These may include compulsory licenses, scientific research, and in transit in country.
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 Patent claim that 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.USPTO web site, Patent Marking and "Patent Pending" (Excerpted from General Information Concerning Patents print brochure) , Consulted on August 5, 2009.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.
Once filed, a patent application is "prosecuted". A patent examiner reviews the patent application to determine if it meets the patentability requirements of that country. If the application does not comply, objections are communicated to the applicant or their patent attorney through an Office action, to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an opposition proceeding between grant and issuance, or post-issuance.
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. 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. In the US, patent maintenance fees are due on 3.5, 7.5 and 11.5 anniversaries of the patent issuance. Only ca. 50% of issued US patents are maintained full term. Large corporations tend to pay maintenance fees through the full term, while small companies are more likely to abandon their patents earlier, even though the due fees are ca. 5 times lower for small businesses (microentities).Twenty years of US nanopatenting: Maintenance renewal scoring as an indicator of patent value. 2023. World Pat Inf. 73/. A.L. Porter, M. Markley, R. Snead, N.C. Newman. doi: 10.1016/j.wpi.2023.102178.
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.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. 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.
After a patent is issued, in most countries patent maintenance payments are required. In some countries (e.g. Russia) fees are due every year, and the amount due does not change much. In other countries (e.g. US) payments are due ca. every 4th year after the grant date, and the amount due increases every time. A 2023 study by Rochester Institute of Technology found the full term maintenance rate of issued US patents has been fairly constant (40-50%) since 1992. Full term patents have more issued claims and receive on average more citations than earlier expired patents.The persistence of worthless patents? 2023. World Pat Inf. 72/. A. Schwall, J. Wagner. doi: 10.1016/j.wpi.2023.102179.
The European Patent Office charges annual fees for pending applications. Also, between 2012 and 2016 Ecuador increased its patent maintenance fees ten-fold, briefly becoming the most expensive country to maintain patents.
In the United States, in 2000 the cost of obtaining a patent (patent prosecution) was estimated to be from $10,000 to $30,000 per patent. When patent litigation is involved (which in year 1999 happened in about 1,600 cases compared to 153,000 patents issued in the same year), costs increase significantly: although 95% of patent litigation cases are settled out of court, those that reach the courts have legal costs on 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. The containing chapter ('The Costs of Disputes') also tries to quantify associated business costs.
In addition, the TRIPS Agreement explicitly prohibits any such discrimination. TRIPS Agreement Article 27.1 states that 'patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced'.
A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by non-disclosure agreement and labour law, each of which prevents information leaks such as breaches of confidentiality and industrial espionage. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public, whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork; has an immediate effect; and does not require any disclosure of information to the public. The key disadvantage of a trade secret is its vulnerability to reverse engineering.
Patents provide incentives for economically efficient research and development (R&D). A study conducted annually by the Institute for Prospective Technological Studies (IPTS) shows that the 2,000 largest global companies invested more than 430 billion euros in 2008 The 2009 EU Industrial R&D Investment Scoreboard produced by the Institute for Prospective Technological Studies in their R&D departments. If the investments can be considered as inputs of R&D, real products and 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 Technological profiles for global companies by analysing their patent portfolios of their technological profiles. Supporters of patents argue that without patent protection, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs. Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments.
The logical consequence of more efficient R&D is a more efficient national economy: An increase in patenting has proven to be linked with an increase of national income. A 2009 study on patent effects in various countries around the world finds, for instance, that a 10% increase in patenting in 1910 led on average to a 9 to 11% higher level of per capita GDP in 1960. The positive effects of patenting on national income were found to be particularly strong in the United States., Switzerland and Sweden. However, patenting is not the only factor influencing GDP growth: among others, schooling also plays a big role.
"The patent internalizes the externality by giving the inventor a property right over its invention."
In accordance with the original definition of the term "patent", patents are intended to facilitate and encourage disclosure of into the public domain for the common good. Thus patenting can be viewed as contributing to open hardware after an embargo period (usually of 20 years). If inventors did not have the legal protection of patents, in many cases, they might prefer or tend to keep their inventions secret (e.g. keep ).Pooley, J. and Westman, D.P., 1997. Trade secrets. Law Journal Seminars-Press. 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 invention is not lost to humanity.
One effect of modern patent usage is that a small-time inventor, who can afford both the patenting process and the defense of the patent,Jim Kerstetter. 2012. How much is that patent lawsuit going to cost you?. CNET. 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 not to 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.Stim, Rishand, "Profit from Your Idea: How to Make Smart Licensing Decisions", (2006)
Another effect of modern patent usage is the social benefit(s) of technology disclosure. Although patentees usually end up not reaping benefit from their patent monopoly, the society still benefits from patent disclosures. Also patents both enable and incentivize competitors to design around (or to "Design around" according to R S Praveen Raj) the patented invention. This may promote healthy competition among manufacturers, resulting in gradual improvements of the technology base.
Boldrin and Levine conclude "Our preferred policy solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster innovation when there is clear evidence that laissez-faire undersupplies it."McKendrick, J., 2012. Time to eliminate patents altogether? Fed paper urges more open innovation. ZDNet. Available at: Abolishing patents may be politically challenging in some countries, however, as the primary economic theories supporting patent law hold that inventors and innovators need patents to recoup the costs associated with research, inventing, and commercializing; this reasoning is weakened if the new technologies decrease these costs. A 2016 paper argued for substantial weakening of patents because current technologies (e.g. 3D printing, cloud computing, synthetic biology, etc.) have reduced the cost of innovation.
Debates over the usefulness of patents for their primary objective are part of a larger discourse on intellectual property protection, which also reflects differing perspectives on copyright.
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