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Summary readings Innovation & IPR
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Summary of all the compulsory readings of the masters course Innovation and Intellectual Property Rights () at TU/e
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0EM160 - Innovation and intellectualproperty rights
Lecture 1 (13/11/2023)
Jaffe & Lerner: Chapter 3- The Long Debate
History of patents, three “o1-forgo4en dramas” to show the complexity of the issues around
the nature and quality of patents. Three lessons: 1. The issues are now new, 2. There is always
a trade-off between rewarding the innovator and burdening others, 3. Changes in the system
o1en lead to shi1ing backward and forwards in opposite direcIons.
- Scene 1: The first patents were granted by rulers, for example in England. Queen
Elizabeth granted many patents (for example for salt, leading to a 20-fold price
increase), giving much power to the patent holders. Parliament rebellion led to
reforms. Later, patents became “only legal when they benefit the public as a whole”.
- Scene 2: Late in the 18th century, now the system to obtain patents was too complex
(high fees and many processes). However, reform was slow due to deep-rooted
interests, lack of inventor unity, and concerns about unintended consequences. In
1852, a patent office was established, making patents more accessible, eventually to
a modern patent office in 1883 (formalizing the process to make patents more
reliable).
- Scene 3: IniIally, the Netherlands had a strong supported patent system. But
complaints started to emerge, mainly due to lack of examinaIon & secrecy of patents.
Manufacturers wanted to abolish the system because it hindered innovaIon, which
happened in 1869 (European anI-patent senIment). ReintroducIon happened in
1910 due to pressure from trading partners.
General pa4erns:
- Patent policy changes present wave pa4erns
- Lowering ability of the execuIve to extend the patent life without any special
permission (discreIon)
- Increasing share of patent systems with formal examinaIon systems
- Trend towards longer patent protecIon (except in the anI-patent movement of 1860)
WIPO Intellectual property right handbook
Note: ensure that the law “does not unnecessarily extend protecIon beyond what is
necessary to create the required incenIve for acIvity” (for industrial design, but applicable
everywhere): definiIon, rights, duraIon of rights, enItlement to rights, acquisiIon of rights.
Patents
Patent = “the patented invenIon may not be exploited in the country by persons other than
the owner of the patent unless the owner agrees to such exploitaIon”, so exclude/prevent
others from using it. Five condiIons:
, 1. Patentable subject ma4er: protecIon is available for invenIons in all fields of
technology (TRIPS agreement). Some exclusions: natural materials, scienIfic theories
or mathemaIcal models, plants, business methods, treatment/diagnosIc methods.
2. Industrial applicability (uIlity): applied for pracIcal purposes. Differences in
requirements: ability to manufacture vs. usefulness.
3. Novelty: only absence of novelty can be proved. “Prior art” = all knowledge that
existed prior to priority date (wri4en, spoken words in public, use in public). Note:
prior art must be in one item (not combined).
4. InvenIve step (non-obviousness): would have been obvious to someone having
ordinary skill in the art. Difficult standard. Can only arise if there is novelty. Three
aspects to assess: problem to be solved, soluIon to the problem, advantageous
effects.
5. Disclosure of the invenIon: disclose in a manner “sufficiently clear for the invenIon to
be carried out by a person skilled in the art”. Partly to allow for opposiIon procedures.
The procedure of dra1ing/filing a patent: 1. IdenIficaIon of the invenIon, 2. Dra1ing
applicaIon (one invenIon only, clear disclosure, claims determining scope of protecIon).
ExaminaIon/granIng procedure: 1. ExaminaIon of form (fundamental requirements, such as
filing or priority date, contents of request, inventor, claims, drawings, abstract, etc.), 2. Search
(if not combined with substance, a search report is sent to the applicant showing resembling
documents and/or the claims that should be compared), 3. ExaminaIon of substance (not
excluded due to legislaIon, or lack of one of the criteria), 4. Grant/publicaIon (no opposiIon,
then grant and publicaIon by the patent office).
Infringement: the exclusive right is someImes limited (subject to invalidaIon, working or
licensing the patent, etc.). Rights must be enforced by the patent owner. Types of
infringement: deliberately; deliberately but a4empt to avoid (invent alternaIve); accidental.
Note: should be a1er the publicaIon and in the same country.
Prohibited acts: making, using, selling, or imporIng the patented product/process. QuesIons
to find out if the infringement is in the same scope: all elements are present; have the same
form; perfrom the same funcIon; have the same relaIonship to other elements?
Remedies: civil sancIons (damages) & criminal sancIons
ExploitaIon: the patent can be ‘used’ by making the product. Patent owners either do this
themselves, or sell/license the product idea to manufacturing companies.
Copyright and related rights
Deals with forms of creaIvity, concerned (primarily) with mass communicaIon. Protects
expression of ideas, not the ideas themselves. Goal is to sImulate intellectual creaIon. Could
provide benefits for developing countries.
Subject ma4er: “every producIon in the literary, scienIfic, and arIsIc domain, whatever the
mode or form of expression”. Must be original! Examples: literary, musical, or arIsIc works,
maps, photographic works, moIon pictures, computer programs.
, Rights: exclusive rights (may use the work as he wishes and exclude others). Economic and
moral rights. Right of reproducIon: distribuIon of copied works is someImes also included.
Other rights include performing, recording, broadcasIng, and translaIon and adaptaIon
rights. Moral rights (claim of authorship of the work) remain even a1er transferring economic
rights.
Ownership: usually with the owner, someImes the employer (although moral rights belong
to the author)
LimitaIons: temporal (unIl a1er death of the author), geographic (law differs per country),
permi4ed use (private use).
Infringement: piracy, carried on for commercial gain. Recent developments in reproducIon
techniques have increased the risk (also: lower costs for reproducIon than creaIon). Quality
is o1en lower, effecIng consumers.
Trademarks
“Any sign that can serve to disInguish goods from other goods”. For example: words, le4ers
and numerals, devices, colored marks, three-dimensional, audible, smell, or other signs.
Criterium of disIncIveness (from the perspecIve of consumers for the goods to which it is to
be applied). Lack of disIncIveness can happen by: generic terms, descripIve signs, etc.
Exclusions from registraIon: decepIveness (as to quality), reference to geographical origin
(but does not come from there).
Use requirements: obligaIon to use! Use must be proven (not non-use). SomeImes,
improper use can lead to ‘genericness’. Overall, there is no Ime limit, but someImes renewals
are required (source of income for office).
Industrial design and integrated circuits
Industrial design = creaIve acIvity of achieving an appearance for mass-produced items that
appeal visually and efficiently performs an intended funcIon.
ProtecIon is about the specific design, not the funcIon of the product. Must be usable in the
industry, or produced on large scale.
Requirements: 1. ArIcles are not protected if the design is dedicated only to the funcIon, 2.
Novelty/originality.
Rights: “prevent the unauthorized exploitaIon of the design in industrial arIcles”. In general,
rights are with the employer. Use of computer: right with the “person by whom the
arrangements necessary for the creaIon are undertaken”. Maximum goes from 10 to 25 years.
Integrated circuits: protecIon of layout-designs (topographies) of integrated circuits.
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