Lecture notes for the Intellectual Property Law module linked to Intellectual Property Law Essentials.
Author achieved a first-class grade for the module.
Lecture 3 (Part 1) – Patents
• Patents involve an invented product or process not thought of previously.
• Rationale: a patent is a monopoly right granted by the Government through the patent office
to an individual who then has exclusive right to exploit the patented invention for a limited
period (usually 20 years – 25 for pharmaceutical patents).
• Why would the government favour an individual like this? Monopolies are usually disapproved
of in the law.
– To allow the inventor to recoup the costs and effort of inventing and make a modicum
of profit
– To ensure that the invention becomes published thus the technology becomes public
knowledge
– To ensure that the invention is made and so the product is available to the public
– To provide an incentive to inventors generally and so to encourage innovation
– To stimulate economic activity in the country
What happens then is that people apply for a patent and if they are granted a patent, this is a
monopoly right. Only the original inventor and the person who is licenced by them will be able to
create and sell the product in the marketplace and they have an exclusive right to exploit the patent
for 20 to 25 years. It's a beneficial process, so there's a trade off balance which is struck between the
inventor disclosing the invention so that it is a matter of public knowledge, and on the other hand,
receiving a benefit and an exclusive right to exploit that patent.
History
• Very ancient used in 14th and 15th centuries in Flanders and Venice, which were seafaring
areas determined to maximise trade with the far flung parts of the world. Only by granting
monopolies in these areas where people are able to raise finance to enable them to carry
out various kinds of expeditions.
• First English uses were to encourage trade (nothing to do with inventions) and to give trade
favours to the King’s friends. Theoretically, this was to encourage the opening up of new
trade routes, but frequently it just gave a favour to the king's friend. And you can see that
that clearly would be an abuse of the original intention of let us patent. No one could
possibly set themselves up in opposition because effectively they would be going against
the royal decree. So cut out the possibility of competition or any form of effective
opposition. A very powerful favour granted by the king and strongly disapproved by people
who are trying to compete in business
• But this was subject to abuses:
Darcy –v- Thomas Allen (1602) Co Rep 84b – a monopoly on the importation of playing
cards was declared void.
In this case, the court had to rule on whether or not patent monopoly to allow the
importation of foreign playing cards was acceptable. The court declared that this was not it
was an abuse of the whole idea of patents.
, • Statute of monopolies 1623 – passed to prevent abuses – but allowed a temporary 14-year
monopoly (2 x 7-year apprenticeship periods).
• 1852 Patents Act – application to Patent Office describing the invention became necessary.
The procedure in the 1852 Act also stated that some form of search of a register of
inventions would be needed to ensure that it was new or novel, and also to ensure that it
would make a benefit to society as a whole and encourage trade. It was considered that in
those circumstances, suitable invention should be granted a monopoly period of 20 years.
• 1883 Act enacted Paris Convention and required a full Specification and Claim marking legal
boundaries round the monopoly.
– Patents Act 1907 required “Novelty” and introduced a search procedure. Letters
patent are no longer granted by the crown, but they are now being granted by the
patent office. Patents are no longer simply trade monopolies, but monopolies of 20
years granted to the inventor of a new invention, which can show certain
characteristics that it is an invention worthy of being encouraged, that it is new or
novel.
Present Law
• Patents Act 1977 (as amended) – requires an invention be “novel” and involve an “inventive
step”.
• Methods of getting a patent:
– Domestic patent through the UK patent office.
– Application through the European Patent Office (EPO) designating the UK as one of
the countries of registration.
• Priority date – the whole process takes three years, but when you first put in your patent
application the date on which that is accepted and stamped by the patent office is what is
called the priority date. When the patent is finally granted, the monopoly which is claimed is
related back to and starts at the priority date. So, the fact that it's going to take three years or
so before you get the patent is not necessarily a problem.
• Application form (details of the inventor on it), specification of the invention (very specific
details and usually includes in engineering drawings of the invention, as well as a verbal
description of the invention), and claim (with drawings) which specifies the legal monopoly
which is being claimed and it's very important that you do not either claim too little or too
much if you claim too little and the patent is hardly worthwhile. You can't stop your
competitors from making something quite similar and using the same technology. If you make
the claim too wide, then it prevents people from competing against you in legitimate ways
and developing their own technologies, which are similar but unnecessary to the same as your
own. As a result, the court can strike down the patent as having a claim that is far too wide.
You really do need to take specialist advice from a patent agent at an early stage in order to
decide what the appropriate scope of the claims is going to be. You also need an abstract,
which is a very brief description of the patent invention intended to be understood by
specialist engineers and experts engaged in the field of research which has produced the
patent that's being applied for.
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