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Lecture 1: Introduction to IPLecture 2: Patent data
Lecture 3: Searching in patent databases
Lecture 4: Guest lecture by Mr Suki Sandhu
Lecture 5: Guest lecture by Mr Domenico Golzio
Lecture 6: Firm strategies and management of IP
Lecture 7: Patents and standards (“guest” lecture by prof.Bekkers)
Lecture 8: Pros and cons of patents
Lecture 1: Introduction to IPRs
- A bit of history
- What are Intellectual Property Rights (IPRs)?
- Overview of the various types of IPRs
o Patents
o Copyrights
o Industrial design rights
o Trademarks
- Summary of differences
1. A bit of history:
The first IPRs:
It is hard to establish when the first patent system emerged. When an ‘invention’ and/or a particular technical
artefact comes into play, we may speak of patents.
2. What are Intellectual Property Rights (IPRs)?
Someone can protect innovations by: (i) A head start to competitors, (ii) Secrecy (sometimes with additional legal
protection), (iii) Legal protection: patents or other forms of Intellectual Property Rights (IPR).
Why do IPRs exist?
Utilitarian view (economists) Natural law view
• Governments wish to promote • Reward for work done (getting the apple
(technological) innovation; from the tree);
• The starting point is that of free • Reward from an intellectual idea or
competition; benefiting from other product that is the offspring from the
party’s efforts is in principle allowed; intellect;
• Problem for firms that wish or have to
innovate: to what degree can other
firms (who do not invest in innovation)
benefit from their efforts? Since
inventions might be expensive to
generate but cheap to copy, there might
be a market failure;
,3. Overview of the various types of IPRs
Types of IPR
IPR are specific legal protections that include:
- Patents
- Copyright
- Design rights
- Trade marks
- Many others: rights in databases, rights on semiconductor topographies, breeders’ rights,
related/neighbouring rights, etc.
These categories of rights differ for:
1. Scope of protection;
2. Length of protection;
3. Conditions under which right is obtained;
4. Procedure to obtain the right;
5. Other
Many firms see these rights as complementary, as far as their products or services have the potential to be
protected by more than one type of right.
Jurisdiction:
Almost all IPRs have a national character
• Territoriality principle: protection is only in a given jurisdiction
• Sometimes common application and/or examination, but almost always national rights (exception will
be Europe’s new Community Patent)
These national systems have smaller or larger differences! Many features are indeed harmonized by international
treaties
3.1 Patents
What is a Patent?
A patent is a document, issued, upon application, by a government office, which describes an invention and
creates a legal situation in which the patented invention can normally only be exploited (manufactured, used,
sold, imported) with the authorization of the owner of the patent.
• “Invention” means a solution to a specific problem in the field of technology. An invention may relate
to a product or a process
• The protection conferred by the patent is limited in time (generally 20 years)
• In return for the disclosure of the invention, so that others may gain the benefit of the invention
• A patent does not give the right to the inventor or the owner of a patented invention to make, use or
sell anything. It gives the right to exclude others
A balance between creation and diffusion
Patents stimulate:
1. Creation by granting monopolies
Cornerstone argument: knowledge has a non-rival character and (hardly) excusable character,
i.e. once an invention is known, everyone can copy it without bearing costs (Arrow, 1962). This
causes market failure and insufficient incentives to invest in R&D. Innovators cannot recover
their innovation costs
2. Diffusion by
the obligation to disclose the new knowledge (patent publication)
allowing to trade knowledge (via licenses, selling patents)
,Conditions of patentability
1. Patentable subject matter
2. Industrial applicability
3. Novelty
4. Intensive step (non-obviousness)
5. Disclosure of the invention
Fist, Patentable subject matter depending on the national patent legislation, fields of technology which
may be excluded from the scope of patentable subject matter:
• discoveries of materials or substances already existing in nature
• scientific theories or mathematical methods (also often program code)
• plants and animals other than micro organisms
• schemes, rules or methods, such as those for doing business, performing purely mental acts or
playing games (eg business plans)
• methods of treatment for humans or animals, or diagnostic methods practiced on humans or
animals (but not products for use in such methods)
Second, industrial applicability: An invention, in order to be patentable, must be of a kind which can be
applied for practical purposes, not purely theoretical.
• If the invention is intended to be a product or part of a product, it should be possible to make
that product. And if the invention is intended to be a process or part of a process, it should be
possible to carry that process out or “use” it (in general terms) in practice.
• Extremes: claimed invention can be made → Usefulness
Third, novelty, an invention is new if it is not anticipated by the prior art. “Prior art” is in general all the
knowledge that existed prior to the relevant filing or priority date of a patent application, whether it
existed by way of written or oral disclosure.
Therefore it must not be:
- Published
- By spoken words
- By the use of the invention in public: “disclosure by use”
However, novelty is not something which can be proved or established; only its absence can be proved.
Fourth, inventive step (non-obviousness):
• It must be “inventive”: the result of a creative idea
• It must be a step, that is, it must be noticeable (“advance” or “progress” over the prior art)
• This advance or progress be significant and essential to the invention
• Account has to be taken of the prior art ‘as a whole’ (combinations of prior art may be obvious
as well)
• Non-obviousness might be in (i) problem, (ii) solution or (iii) advantageous effects
Fifth, disclosure of the invention:
• The application must disclose the invention in a manner sufficiently clear for the invention to be
carried out by a person skilled in the art.
• The description should set out at least one mode for carrying out the invention claimed. This
should be done in terms of examples.
• The claims define clearly the scope of the legal right of exclusion provided by the patent.
, • Unity of invention: one application should relate to one invention only, or to a group of
inventions so linked as to form a single general inventive concept.
Patent Timeline:
Patent Infringement:
Initiative for enforcing a patent rests exclusively with the patent owner. The First step: the patent owner usually
sends the infringer a polite letter pointing out that the existence of the patent carries the implication that the
patentee will sue if the infringement continues.
If the infringer is persistent, the patent owner may:
A) Negotiate a settlement (e.g. a license)
B) Start legal action by suing for infringement (court case)
1. Ask judge to award damages (Wilful infringement? How to calculate?) AND/OR seeking an
injunction to restrain the infringement
2. The invariable legal response of an alleged infringer is to (1) petition for invalidation of the
patent and to (2) show that she does not actually infringe the patent. If alleged is also a patent
owner she might also countersue
However, court actions are expensive and usually companies avoid this.
There are some exceptions in most laws to infringement of exclusive rights to make a patented product:
• Research – the patented product is made for the sole purpose of scientific research and experiment;
• Prior usage – a third party had started making the product before the date when the patent application
for an invention incorporated in the product was filed;
• Compulsory licensing – the patented product is made under a non-voluntary license or under an
authorization granted by the Government on public interest grounds;
3.2 Copyrights
What is a Copyright?
A copyright is a legal protection for forms of creativity, it protects the expression of ideas (not the idea itself).
There is a condition for that – original creation. The ideas itself do not have to be new but the way of expressing
it, the form, must be an original creation of the author.
The protection is independent of the quality or the value attaching to the work (good or horribly bad…). No test of
imaginativeness of inventiveness.
The copyright allows the owner to exclude others from using his/her works in the following ways:
- copying or reproducing the work;
- performing the work in public;
- making a sound recording of the work;
- making a motion picture of the work;
- broadcasting the work;
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