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Summary Lecture 2 - Patent Law
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Lecture of optional course Intellectual Property Law of Master Rechtsgeleerdheid Tilburg University. Contains everything lecturer has said during lectures.
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Lecture 2 - Patent LawA patent is a monopoly, probably the only exception to the rule that monopolies are bad since it’s a
lawful monopoly, in exchange for the invention that the patentee made. That monopoly allows you
to stop others from doing it, it doesn’t mean that you as inventor are free to use your invention as
there can always be other inventions that stand in the way. In order to sell the computer which holds
a thousand patents, you need a license to sell the device, it doesn’t give you the freedom to operate.
This often happens in IT, telecom and exists in pharma but there, it doesn’t happen that often.
Monopoly right is limited in territorial scope so you need to apply for it in the other countries since
it’s no real use to only have it in the Netherlands, for instance. You need to acquire a patent
portfolio, which is expensive (talking € 100.000 for Europe). Therefore, Unitary Patent Right to make
it some less expensive and less hassle. UPR is a single patent right valid in all EU member states that
want to cooperate in this system. UK was an indispensable part of it since many rich people live there
and they announced to continue with the UPR despite that the population voted for Brexit. They will
be joining a Pan European cooperation with a Pan European Court, Bulgarian judges will be taking
decisions of conventions made in the UK?
Keep in mind all the time that a patent is a quid pro quo: inventions kept by inventors by themselves
are not useful to society, they’re at the mercy of inventors. We have patents as an incentive for
inventors and for them to share the invention with the public. Within the 20 years, the inventor has a
commercial benefit to become rich or to recoup his investments. There is public benefit as there’s a
balance, they get access to a new technology on which they can build.
Art 52 (1) EPC states that the invention must be new, otherwise the public won’t benefit from it. If
it’s not inventive, any idiot can come up with it. Here, the quid pro quo comes in as well.
An aesthetic creation is for instance a model, or something you perhaps can get a trademark or
model right for. Programmes for computers and presentations of information are becoming the most
important in today’s technological field: hardly any device that doesn’t have software in it.
Presentation and manipulation of information, very valuable and many technological progress being
made (hard to get patent on them). Piece of information like that cannot be patented, but a device
displaying information can since it’s a patent to a machine that displays information. Problem with
these exceptions is that they don’t have a technical character but doing something with the
information is fine. If you explain that the software does something in the car, e.g. prevent collisions
by looking at it with a radar, this is patentable; you’re giving a technical aspect to the software.
You’re patenting a technical invention that includes software, which is fine.
Article 53 EPC gives a list of inventions against morality or on biological processes (so, on life) and a
list of inventions in the medical field. The right to stop someone from doing something, we don’t
want someone to patent the actions of a doctor. A patent on a lifesaving hart massage technique
means that everyone who wants to use this needs a license first.
A better letter bomb has a switch, battery so it’s technical and there are people who have
commercial interest in it, but to exploit them would go against morality. Harvard OncoMouse is a
mutated mouse that almost certainly gets cancer in his life. It’s a handy research tool if you want to
research cancer but was objected because to put this into practice would mean that the animal
would suffer. After changing the patent into a more limited application (mouse + cancer mutation) it
was allowed.
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