Info 442 chapt 5


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Info 442 chapt 5

  2. 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 04/12/14 2
  3. 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. 04/12/14 3
  4. 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. 04/12/14 4
  5. 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. 04/12/14 5
  6. 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. 04/12/14 6
  7. 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. 04/12/14 7
  8. 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. 8
  9. 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. 04/12/14 9
  10. 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. 10
  11. 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. 04/12/14 11
  12. 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. 04/12/14 12
  13. 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. . 04/12/14 13
  14. 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. 04/12/14 14
  15. 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. 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. 04/12/14 16
  17. 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. 04/12/14 17
  18. 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. 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. 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. • 04/12/14 20
  21. 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. 04/12/14 21
  22. 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. 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. 04/12/14 23
  24. 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). 04/12/14 24
  25. 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. 04/12/14 25
  26. 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. 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. 04/12/14 27
  28. 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. 04/12/14 28
  29. 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. 04/12/14 29
  30. 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