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Patent law
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Intellectual property law
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A patent infringement is the action to utilize [1] a patented invention without the permission (license) of the patent proprietor. A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an The history of Patents and patent Laws is generally considered to have started in Italy with a Venetian Statute of 1474 which was issued by the Republic of Venice Patents are legal instruments intended to encourage Innovation by providing a limited " Monopoly " to the Inventor (or their assignee Patent prosecution describes the interaction between an applicant or their representative and a Patent office with regard to a Patent, or an application for A patent application is a request pending at a Patent office for the grant of a Patent for the Invention described and claimed by that application 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 The verb license or grant license means to give permission The noun license is the document demonstrating that permission European patent law covers a wide range of Legislations including National Patent Laws the Strasbourg Convention of 1963 the Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act (特許法 Tokkyohō) of Japan which consists of United States patent law was established "to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective This is a list of legal concepts relating to patents, including special types of Patents and Patent applications Legal concepts Intellectual property ( IP) is a legal field that refers to creations of the mind such as musical literary and artistic works inventions and symbols names Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A trademark or trade mark, represented by the symbols ™ and ®, or mark is a distinctive sign or indicator used by an individual Industrial design rights are Intellectual property rights that protect the visual design of objects that are not purely utilitarian A utility model is an Intellectual property right to protect Inventions This right is available in a number of national Legislations such as Argentina A geographical indication (GI is a name or sign used on certain products which corresponds to a specific geographical location or origin (eg A trade secret is a Formula, practice, Process, Design, instrument, Pattern, or compilation of Information which Related rights is a term in Copyright law used in opposition to the term " Authors' rights " A trade name, also known as a trading name or a business name, is the name which a Business trades under for commercial purposes although its registered In Computer networking, a domain name is a name given to a collection of network devices that belong to a domain which is an administrative space managed according Sui generis (English pronunciation ( IPA) /ˌsuːiˈdʒɛnərɪs/ roughly "SOO-ee JEN-a-ris" Latin pronunciation /ˌsuːiˈgeneris/ is a Neo-Latin In European Union law, a database right is a legal right introduced in 1996. A mask work is a two or three-dimensional layout or topography of an Integrated circuit (IC or "chip" i Plant breeders' rights (PBR also known as plant variety rights (PVR are Intellectual property rights granted to the breeder of a new variety In European Union member countries a supplementary protection certificate (SPC is a Sui generis, Patent -like Intellectual property Indigenous intellectual property is an umbrella legal term used in national and international forums to identify Indigenous peoples ' special rights to claim (from within Critics of the term " Intellectual property " argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright An invention is a new form composition of matter device or Process. The verb license or grant license means to give permission The noun license is the document demonstrating that permission A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an

The scope of patented invention is defined in the claim section of each granted patent of each country. Patent claims are usually in the form of a series of specified elements and corresponding limitations or more precisely Noun phrases following the description portion of the The patent is examined (when an examination is prescribed under the concerned law) and granted by each country separately, and is enforcable only within the countries where the patent is granted (not the worldwide permission).

The related patent number may be on the products and/or services (patent marking), also some of patent office offer the full document database with search engine. This article is about patents For the band Patent Pending see Patent Pending (band. A patent office is a Governmental or Intergovernmental organization which controls the issue of Patents List of patent offices For a

Contents

Elements of patent infringement

Any party that manufactures, imports, uses, sells, or offers for sale patented technology, during the term of the patent and within the country that issued the patent, is considered to infringe the patent. An importer (not exporter) may be prosecuted for infringement as manufacturer in the country where the granted patent is. (principle of territorial jurisdiction)

The test varies from country to country, but in general it requires that the infringer's product (or method, service, etc) falls within one or more of the claims of the granted patent. The territoriality principle gives legal authority for a State to exercise jurisdiction in a case due to location of the crime Patent claims are usually in the form of a series of specified elements and corresponding limitations or more precisely Noun phrases following the description portion of the The process employed involves "reading" a claim onto the technology of interest. If all of the claim's elements are found in the technology, the claim is said to "read on" the technology; if a single element from the claim is missing from the technology, the claim does not literally read on the technology and the technology does not infringe the patent with respect to that claim.

In response to allegations of infringement, an accused infringer will generally assert one or more of the following:

Indirect infringement

Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement. " This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. In the U. S. , types of "indirect infringement" include "contributory infringement" and "induced infringement. "

Legislation

Japan

Infringement under Japan patent law is defined by Article 101 of Patent Act (Act No. 121 of 1959)[2], which shows the following acts shall be deemed to constitute infringement of a patent right or an exclusive license:

United Kingdom

Main article: Patent infringement under United Kingdom law

Infringement under United Kingdom patent law is defined by Section 60 of the UK Patents Act 1977 (as amended), which sets out the following types of infringement:

United States

Main article: Patent infringement under United States law

In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. In the United States, a Patent provides its proprietor with the right to exclude others from utilizing the Invention claimed in that patent The United States of America —commonly referred to as the An invention is a new form composition of matter device or Process. This article discusses the patent doctrine For the trademark doctrine regarding translation of foreign words see Doctrine of foreign equivalents. [3]

No infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C. § 154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. Title 35 of the United States Code is a title of United States Code regarding patent law. This right to obtain provisional damages requires a patent holder to show that (1) the infringing activities occurred after the publication of the patent application, (2) the patented claims are substantially identical to the claims in the published application, and (3) the infringer had "actual notice" of the published patent application.

Clearance search and opinion

A clearance search is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an A patent application is a request pending at a Patent office for the grant of a Patent for the Invention described and claimed by that application Patent claims are usually in the form of a series of specified elements and corresponding limitations or more precisely Noun phrases following the description portion of the These searches are often performed by one or more professional patent searchers who are under the direction of one or more patent attorneys. A patent attorney is an Attorney who has the specialized qualifications necessary for representing clients in obtaining Patents and acting in all matters and procedures

A clearance search is normally followed by a clearance opinion, i. e. legal opinion provided by one or more patent attorneys as to whether a given item or process infringes the claims of one or more issued patents or pending patent applications. Clearance opinions may be done in combination with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable.

The cost of these opinions for U. S. patents can run from 10's of thousands of dollars to 100's of thousands of dollars or more, depending upon the particular patent in question and the amount of money at stake if the patent is infringed.

Patent infringement insurance

Patent infringement insurance is an insurance policy provided by one or more insurance companies to protect either an inventor or a third party from the risks of inadvertently infringing a patent. Insurance, in Law and Economics, is a form of Risk management primarily used to hedge against the Risk of a contingent loss An inventor is a person who creates or discovers a new method form device or other useful means

For inventors, patent infringement insurance covers their legal costs in case they have to sue an infringer to enforce their patent.

For third parties, patent infringement insurance covers their legal costs in case they are sued for patent infringement by an inventor.

Patent infringement insurance is generally considered too expensive to be worth it. The premiums must be high, however, due, at least in part, to the high legal costs of patent infringement cases. A typical patent infringement case in the US costs 1 - 3 million dollars in legal fees for each side. This is despite the fact that 99% of all patent infringement cases are settled. Legal fees in pharmaceutical cases can run 30 million dollars or more, although this should be contrasted with the fact that billions of dollars may be at stake.

In June 2006, a Study for the European Commission on the feasibility of possible insurance schemes against patent litigation risks was published. The European Commission (formally the Commission of the European Communities) is the executive branch of the European Union. [4] The report concluded that the continuation of the status quo with very little, disproportionately expensive, bespoke patent litigation insurance (PLI) would not meet any objectives for a feasible insurance scheme. Instead, only a mandatory scheme was considered to be viable in order to provide the economic and technical benefits to the EU and individual patentees which would arise from a widespread PLI scheme.

Piracy

Since the 1840's, the expression "patent pirate" has been used as a pejorative term to describe those that infringe a patent and refuse to acknowledge the priority of the inventor. Events and trends Technology First use of General anesthesia in an operation by Crawford Long. Words and phrases are pejorative if they imply disapproval or contempt An inventor is a person who creates or discovers a new method form device or other useful means Samuel F. B. Morse, inventor of the telegraph, for example, complained in a letter to friend in 1848 [5]

I have been so constantly under the necessity of watching the movements of the most unprincipled set of pirates I have ever known, that all my time has been occupied in defense, in putting evidence into something like legal shape that I am the inventor of the Electro-Magnetic Telegraph!! Would you have believed it ten years ago that a question could be raised on that subject?

Those who accuse others of being patent pirates say that they take advantage of the high cost of enforcing a patent to willfully infringe valid patents with impunity, knowing that the average small inventor does not have the financial resources required to enforce their patent rights. Samuel Finley Breese Morse ( April 27, 1791 &ndash April 2, 1872) was an American painter of portraits and historic Year 1848 ( MDCCCXLVIII) was a Leap year starting on Saturday (link will display the full calendar of the Gregorian Calendar (or a Leap In the US, for example, an inventor must budget $1 million or more in order to initiate patent litigation. They say that patent pirates also take advantage of countries where patent rights are difficult to enforce and willfully infringe in those countries.

Ironically, the term "pirate" has also been used to describe patent owners that vigorously enforce their patents. [6] (See also patent troll) Thus whether one deliberately infringes a patent or whether one vigorously enforces a patent, they may be referred to as a pirate by those that feel they are overstepping their bounds. Patent troll is a pejorative term used for a person or company that enforces its Patents against one or more alleged infringers in a manner considered unduly

References

Notes

  1. ^ In most countries, a use is required to be commercial (or to have a commercial purpose) to constitute a patent infringement.
  2. ^ Patent Act in Japan
  3. ^ "[F]or a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device. " Wolverine World Wide, Inc. v. Nike, Inc. , 38 F. 3d 1192, 1199 (Fed. Cir. 1994)
  4. ^ Patent Litigation Insurance
  5. ^ www. fullbooks. com, Samuel F. B. Morse, His Letters and Journals by Samuel F. B. Morse, Part 5 out of 9, retrieved on June 10, 2006
  6. ^ see Testimony by Harold C. Wegner, Professor of Law and Director, Intellectual Property Law Program, George Washington University National Law Center before the US Senate Wednesday, March 9, 1994

See also

See List of patent legal concepts for articles on various legal aspects of patents, including special types of patents and patent applications. This is a list of legal concepts relating to patents, including special types of Patents and Patent applications Legal concepts

Notable infringement cases

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