![US Patent cover](https://upload.wikimedia.org/wikipedia/commons/7/71/US_Patent_cover.jpg)
A patent is a type of
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
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
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
and the patent holder must sue someone
infringing the patent in order to enforce their rights. In some
industries patents are an essential form of
competitive advantage
In business, a competitive advantage is an attribute that allows an organization to outperform its competitors.
A competitive advantage may include access to natural resources, such as high-grade ores or a low-cost power source, highly skilled ...
; in others they are irrelevant.
[WIPO Intellectual Property Handbook: Policy, Law and Use. Chapter 2: Fields of Intellectual Property Protection](_blank)
WIPO 2008
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
claims
Claim may refer to:
* Claim (legal)
* Claim of Right Act 1689
* Claims-based identity
* Claim (philosophy)
* Land claim
* A ''main contention'', see conclusion of law
* Patent claim
* The assertion of a proposition; see Douglas N. Walton
* A righ ...
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
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
's (WTO)
TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
, patents should be available in WTO member states for any invention, in all fields of
technology
Technology is the application of knowledge to reach practical goals in a specifiable and reproducible way. The word ''technology'' may also mean the product of such an endeavor. The use of technology is widely prevalent in medicine, science, ...
, provided they are new, involve an inventive step, and are capable of industrial application. Nevertheless, there are variations on what is
patentable subject matter
Patentable, statutory or patent-eligible subject matter is subject matter which is susceptible of patent protection. The laws or patent practices of many countries provide that certain subject-matter is excluded from patentability, even if the inv ...
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.
[
]
Definition
The word ''patent'' originates from the Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
''patere'', which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term ''letters patent
Letters patent ( la, litterae patentes) ( always in the plural) are a type of legal instrument in the form of a published written order issued by a monarch, president or other head of state, generally granting an office, right, monopoly, titl ...
'', 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 land patent
A land patent is a form of letters patent assigning official ownership of a particular tract of land that has gone through various legally-prescribed processes like surveying and documentation, followed by the letter's signing, sealing, and publi ...
s, which were land grants by early state governments in the US, and printing patent The printing patent or printing privilege was a precursor of modern copyright. It was an exclusive right to print a work or a class of works.
The earliest recorded printing privilege dates from 1469, giving John of Speyer a five-year monopoly on al ...
s, a precursor of modern copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
.
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
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
right, an expression which is also used to refer to trademark
A trademark (also written trade mark or trade-mark) is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services from a particular source and distinguishes them from others ...
s and copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
s, 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 right
An industrial design right is an intellectual property right that protects the visual design of objects that are purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or co ...
s are called ''design patent
In the United States, a design patent is a form of legal protection granted to the ornamental design of an article of manufacture. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers ...
s'' in the US, plant breeders' rights
Plant breeders' rights (PBR), also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give the breeder exclusive control over the propagating material (including seed, cuttings, divisions, tissue ...
are sometimes called ''plant patents'', and utility model
A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the United States, United Kingdom or Canada. Although a utility model is similar to a patent ...
s and ''Gebrauchsmuster In German and Austrian patent laws, the ''Gebrauchsmuster'' (GebrM), also known as German utility model or Austrian utility model, is a patent-like, intellectual property right protecting inventions.
The Gebrauchsmuster is slightly different from t ...
'' 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 species of patents for inventions include biological patent
A biological patent is a patent on an invention in the field of biology that by law allows the patent holder to exclude others from making, using, selling, or importing the protected invention for a limited period of time. The scope and reach of ...
s, business method patent
Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking and tax compliance etc. Business method patents are a relatively new species of paten ...
s, chemical patent
A chemical patent, pharmaceutical patent or drug patent is a patent for an invention in the chemical or pharmaceuticals industry. Strictly speaking, in most jurisdictions, there are essentially no differences between the legal requirements to ob ...
s and software patent
A software patent is a patent on a piece of software, such as a computer program, libraries, user interface, or algorithm.
Background
A patent is a set of exclusionary rights granted by a state to a patent holder for a limited period of time, u ...
s.
History
Although there is some evidence that some form of patent rights was recognized in Ancient Greece
Ancient Greece ( el, Ἑλλάς, Hellás) was a northeastern Mediterranean civilization, existing from the Greek Dark Ages of the 12th–9th centuries BC to the end of classical antiquity ( AD 600), that comprised a loose collection of cult ...
in the Greek city of Sybaris
Sybaris ( grc, Σύβαρις; it, Sibari) was an important city of Magna Graecia. It was situated in modern Calabria, in southern Italy, between two rivers, the Crathis (Crati) and the Sybaris (Coscile).
The city was founded in 720 BC ...
,Charles Anthon
Charles Anthon (November 19, 1797 – July 29, 1867) was an American classical scholar. Anthon was a professor at Columbia College and became headmaster of it's grammar and preparatory school. He produced classical works for schools, which conta ...
, ''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, page 1273. the first statutory patent system is generally regarded to be the Venetian Patent Statute
The Venetian Patent Statute of March 19, 1474, established in the Republic of Venice the first statutory patent system in Europe, and may be deemed to be the earliest codified patent system in the world. The Statute is written in old Venetian. It ...
of 1474. However, recent historical research has suggested that the Venetian Patent Statute of 1474 was inspired by laws in the Kingdom of Jerusalem
The Kingdom of Jerusalem ( la, Regnum Hierosolymitanum; fro, Roiaume de Jherusalem), officially known as the Latin Kingdom of Jerusalem or the Frankish Kingdom of Palestine,Example (title of works): was a Crusader state that was establishe ...
that granted monopolies
A monopoly (from Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situation where a speci ...
to developers of novel silk-making techniques. Patents were systematically granted in Venice
Venice ( ; it, Venezia ; vec, Venesia or ) is a city in northeastern Italy and the capital of the Veneto Regions of Italy, region. It is built on a group of 118 small islands that are separated by canals and linked by over 400 ...
as of 1474, where they issued a decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...
by which new and inventive devices had to be communicated to the Republic
A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...
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.]
The English patent system evolved from its early medieval
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the Post-classical, post-classical period of World history (field), global history. It began with t ...
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
The Industrial Revolution was the transition to new manufacturing processes in Great Britain, continental Europe, and the United States, that occurred during the period from around 1760 to about 1820–1840. This transition included going f ...
could emerge and flourish. By the 16th century, the English Crown
A crown is a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity. A crown is often, by extension, a symbol of the monarch's government or items endorsed by it. The word itself is used, partic ...
would habitually abuse the granting of letters patent for monopolies
A monopoly (from Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situation where a speci ...
. After public outcry, King James I of England
James VI and I (James Charles Stuart; 19 June 1566 – 27 March 1625) was King of Scotland as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the Scottish and English crowns on 24 March 1603 until ...
(VI of Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
) 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
The Statute of Monopolies 162321 Jac 1 c 3 was an Act of the Parliament of England notable as the first statutory expression of English patent law. Patents evolved from letters patent, issued by the monarch to grant monopolies over particular ...
(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
James Watt (; 30 January 1736 (19 January 1736 OS) – 25 August 1819) was a Scottish inventor, mechanical engineer, and chemist who improved on Thomas Newcomen's 1712 Newcomen steam engine with his Watt steam engine in 1776, which was fun ...
for his steam engine
A steam engine is a heat engine that performs mechanical work using steam as its working fluid. The steam engine uses the force produced by steam pressure to push a piston back and forth inside a cylinder. This pushing force can be trans ...
, 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
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
heritage, including the United States, New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
and Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
. In the Thirteen Colonies
The Thirteen Colonies, also known as the Thirteen British Colonies, the Thirteen American Colonies, or later as the United Colonies, were a group of Kingdom of Great Britain, British Colony, colonies on the Atlantic coast of North America. Fo ...
, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow
Samuel Ellsworth Winslow (April 11, 1862 – July 11, 1940) was an American politician and Republican Congressman from Massachusetts.
Biography
Winslow was born in Worcester, Massachusetts. He spent a year at the Williston Seminary in Eastha ...
was granted the first patent in North America by the Massachusetts General Court
The Massachusetts General Court (formally styled the General Court of Massachusetts) is the state legislature of the Commonwealth of Massachusetts. The name "General Court" is a hold-over from the earliest days of the Massachusetts Bay Colony, ...
for a new process for making salt.
The modern French patent system was created during the Revolution
In political science, a revolution (Latin: ''revolutio'', "a turn around") is a fundamental and relatively sudden change in political power and political organization which occurs when the population revolts against the government, typically due ...
in 1791. 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
The United States Congress is the legislature of the federal government of the United States. It is Bicameralism, bicameral, composed of a lower body, the United States House of Representatives, House of Representatives, and an upper body, ...
was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts". The first patent under the Act was granted on July 31, 1790 to Samuel Hopkins for a method of producing potash
Potash () includes various mined and manufactured salts that contain potassium in water-soluble form. (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision to the patent law 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
The American Civil War (April 12, 1861 – May 26, 1865; also known by other names) was a civil war in the United States. It was fought between the Union ("the North") and the Confederacy ("the South"), the latter formed by states th ...
about 80,000 patents had been granted.
Gender gap in patents
In the US, women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 The Patent Act of 1790 () was the first patent statute passed by the federal government of the United States. It was enacted on April 10, 1790, about one year after the constitution was ratified and a new government was organized. The law was concis ...
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
Stem or STEM may refer to:
Plant structures
* Plant stem, a plant's aboveground axis, made of vascular tissue, off which leaves and flowers hang
* Stipe (botany), a stalk to support some other structure
* Stipe (mycology), the stem of a mushro ...
sectors. Marcowitz-Bitton et al argue that the gender gap in patents is also a result of internal bias within the patent system.
Law
Effects
A patent does not give a right to make or use or sell an invention. Rather, a patent provides, from a legal standpoint, the right
Rights are law, legal, social, or ethics, ethical principles of Liberty, freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convent ...
to ''exclude others'' from making, using, selling, offering for sale, or importing the patented invention for the term of the patent The term of a patent is the maximum time during which it can be maintained in force. It is usually expressed in a number of years either starting from the filing date of the patent application or from the date of grant of the patent. In most patent ...
, which is usually 20 years from the filing date[Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (]TRIPS
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
). subject to the payment of maintenance fees. From an economic and practical standpoint however, a patent is better and perhaps more precisely regarded as conferring upon its proprietor "a right to ''try'' to exclude by asserting the patent in court", for many granted patents turn out to be invalid once their proprietors attempt to assert them in court. A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.
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
A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of adjudication or arbitration. In essence, under a compulsory license, an i ...
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.
Challenges
In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called opposition proceeding
An opposition proceeding is an administrative process available under the patent and trademark law of many jurisdictions which allows third parties to formally challenge the validity of a pending patent application ("pre-grant opposition"), of a gr ...
s. It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that the patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not patentable subject matter
Patentable, statutory or patent-eligible subject matter is subject matter which is susceptible of patent protection. The laws or patent practices of many countries provide that certain subject-matter is excluded from patentability, even if the inv ...
at all; the claimed subject matter was actually not new, or was obvious to the person skilled in the art
A person having ordinary skill in the art (abbreviated PHOSITA), a person of (ordinary) skill in the art (POSITA or PSITA), a person skilled in the art, a skilled addressee or simply a skilled person is a legal fiction found in many patent laws t ...
, at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons.
Infringement
Patent infringement occurs when a third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a national basis. The making of an item in China, for example, that would infringe a US patent, would not constitute infringement under US patent law unless the item were imported into the US.
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.
Enforcement
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 district court), although some countries (such as France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
and Austria
Austria, , bar, Östareich officially the Republic of Austria, is a country in the southern part of Central Europe, lying in the Eastern Alps. It is a federation of nine states, one of which is the capital, Vienna, the most populous ...
) have criminal penalties for wanton Wanton may refer to:
* Incontinence in philosophy
* Wanton (surname)
* Wanton, Florida, later renamed Micanopy
See also
*Wonton
A wonton () is a type of Chinese dumpling commonly found across regional styles of Chinese cuisine. It is als ...
infringement. Typically, the patent owner seeks monetary compensation (damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
) for past infringement, and seeks an injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
that prohibits the defendant from engaging in future acts of infringement, or seeks either damages or injunction. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (In many jurisdictions the scope of the patent may not be limited to what is literally stated in the claims, for example due to the ''doctrine of equivalents
The doctrine of equivalents is a legal rule in many (but not all) of the world's patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope ...
''.)
An accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim
In a court of law, a party's claim is a counterclaim if one party asserts claims in response to the claims of another. In other words, if a plaintiff initiates a lawsuit and a defendant responds to the lawsuit with claims of their own against th ...
. 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
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. By extension, patentability also refers to the substantive conditions that must be met fo ...
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 licensing agreements are contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tran ...
s 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 A cross-licensing agreement is a contract between two or more parties where each party grants rights to their intellectual property to the other parties.
Patent law
In patent law, a cross-licensing agreement is an agreement according to which two ...
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.
Ownership
In most countries, both natural persons and corporate entities may apply for a patent. In the United States, however, only the inventor(s) may apply for a patent, although it may be assigned to a corporate entity subsequently and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company. Applications by artificial intelligence systems, such as DABUS DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) is an artificial intelligence (AI) system created by Stephen Thaler. It reportedly conceived two inventions. The filing of patent applications designating DABUS as inventor has led ...
, have been rejected in the US, the UK, and at the European Patent Office on the grounds they are not natural persons.
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 liquidity
Liquidity is a concept in economics involving the convertibility of assets and obligations. It can include:
* Market liquidity, the ease with which an asset can be sold
* Accounting liquidity, the ability to meet cash obligations when due
* Liqui ...
of a patent as property. Inventors can obtain patents and then sell them to third parties. 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.
Governing laws
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. Patents are granted by national or regional patent offices, i.e. national or regional administrative authorities. A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. When a patent application is published, the invention disclosed in the application becomes prior art
Prior art (also known as state of the art or background art) is a concept in patent law used to determine the patentability of an invention, in particular whether an invention meets the novelty and the inventive step or non-obviousness criteria f ...
and enters the public domain
The public domain (PD) consists of all the creative work
A creative work is a manifestation of creative effort including fine artwork (sculpture, paintings, drawing, sketching, performance art), dance, writing (literature), filmmaking, ...
(if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally becoming prior art against anyone (including the applicant) who might seek patent protection for the invention in those countries.
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. In the United States, the Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
empowers Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
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
Title 35 of the United States Code is a title of United States Code regarding patent law. The sections of Title 35 govern all aspects of patent law in the United States. There are currently 37 chapters, which include 376 sections (149 of which ...
and created the United States Patent and Trademark Office
The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alexa ...
.
There is a trend towards global harmonization of patent laws, with the World Trade Organization
The World Trade Organization (WTO) is an intergovernmental organization that regulates and facilitates international trade. With effective cooperation
in the United Nations System, governments use the organization to establish, revise, and e ...
(WTO) being particularly active in this area. The TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
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
The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to w ...
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The African Regional Intellectual Property Organization (ARIPO), formerly African Regional Industrial Property Organization, is an intergovernmental organization for cooperation among African states in patent and other intellectual property matter ...
and Organisation Africaine de la Propriété Intellectuelle">OAPI, the analogous treaties among African countries, and the nine Commonwealth of Independent States">CIS