This chapter explores the criteria that are applied to determine the validity of a design, whether a registered design in the UK or an unregistered design: the design must be ‘new’; the design must have ‘individual character’; the applicant or the right holder must be entitled to the protected design; and the design must not conflict with earlier relevant rights (including earlier design applications, copyright, trade mark rights, and rights relating to certain types of emblem). The factors to take into account to determine the novelty of a design, such as prior art, are also considered. The chapter concludes by looking at relative grounds for design invalidity.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
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This chapter discusses patents, which are granted for new and inventive technological developments but not for developments in the creative or non-technological arts. Areas on the borderline between technical and other forms of creativity are the subject of difficulty and controversy. Patents last for 20 years from application, but may be revoked at any time on the grounds that the invention does not meet the requirements for patentability. Manufacturing or dealing in products, or carrying out processes, as described in the patent’s claims, infringes the patent. Unlike copyright, where both economic and individual rights are important, the main reasons for the grant of patents are economic, to encourage technological development. Patents are considered essential to many industries such as the pharmaceutical industry, where there is also a strong public interest in the development and accessibility of technology. The law must strike a balance between the public and private interests.
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This chapter addresses the criteria for patentability; in other words, the rules patent examiners and courts use to decide if a patent is valid or not. These criteria are also useful in the context of an infringement action, because a defendant may make a counter-claim to revoke the claimant's patent for invalidity on the basis of one of the criteria. The patentability of an invention is defined by Articles 52–57 of the European Patent Convention. The criteria comprise five core elements: three positive and two negative. In terms of the positive requirements, for an invention to be patentable, it must possess novelty; inventive step; sufficiency and support; and industrial applicability. Regarding the negative criteria, the invention must not consist of excluded subject matter, and it must not fall afoul of any of the exceptions to patentability.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter explores the criteria that are applied to determine the validity of a design —whether a registered design in the UK and the European Union or an unregistered Community design: the design must be ‘new’; the design must have ‘individual character’; the applicant or the right holder must be entitled to the protected design; and the design must not conflict with earlier relevant rights (including earlier design applications, copyright, trade mark rights, and rights relating to certain types of emblem). The factors to take into account to determine the novelty of a design, such as prior art, are also considered. The chapter concludes by looking at relative grounds for design invalidity.
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This chapter discusses designs law, which is a collection of legal rights that can protect designers of products from having the appearance or shape of their products copied, or give them a monopoly over the commercial exploitation of a shape. Designs law is not about any literary or musical content recorded on a product—that will be protected by copyright. Similarly, the underlying technological ideas may be protected by a patent. In the UK, copyright in designs cannot be used to prevent designs for everyday, functional articles from being copied; only artistic designs can be protected by copyright. Design right protects non-artistic designs and registered designs, and protects designs which are new and of individual character by a monopoly right that lasts 25 years. Registered designs law has been harmonized by the European Union.
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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the requirements of patentability: novelty, inventive step, and sufficiency and support. Novelty means that the invention is new, i.e. is not anticipated. Under section 3 of the Patents Act 1977, an invention involves an inventive step ‘if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art’. Patent applicants must also satisfy disclosure requirements. Section 14(3) provides that the specification of an application must disclose the invention in a manner clear and complete enough to be performed by the person skilled in the art (sufficiency of disclosure). Section 14(5)(c) provides that claims must be clear, concise, and supported by the description, a requirement (supported by the description).
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Justine Pila and Paul L.C. Torremans
This chapter considers the secondary patentability requirements of the European Patent Convention (EPC). It assumes the existence of a subject matter for which a European patent may validly be granted, and focuses on the legal tests for determining its novelty, inventive step, and susceptibility of industrial application in accordance with Articles 54 to 57 EPC and the corresponding provisions of the EU Biotech Directive for biotechnological inventions.
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This chapter explores the criteria that are applied by an intellectual property office in examining a patent application. These applies to all forms for innovation and are novelty, inventive step, and industrial applicability. The chapter also explores additional requirements and barriers which apply in relation to biotechnological inventions, which has proved to be a particularly controversial issue in Europe, and the patentability of computer software and related inventions, such as business method patents. The chapter demonstrates the evolution in legal and policy thinking in these two fields, which provide a means to an understanding of developments in patent law in general.
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L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers novelty as a prerequisite for an invention to be patentable under both the Patents Act 1977 and the European Patents Convention. More specifically, it tackles three questions to help decide whether an invention is novel: what the invention is; what information is disclosed by the prior art; and whether the invention is novel (part of the state of the art). It also looks at the so-called ‘right to work’ argument, whereby novelty helps to ensure that patents are not used to prevent people from doing what they had already done before the patent was granted, and its modification as a result of changes in the way in which novelty is determined. The chapter concludes by discussing three specific types of inventions and the problems that have arisen when evaluating their novelty: inventions relating to medical uses and non-medical uses, and so-called selection inventions.
Chapter
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter considers novelty as a prerequisite for an invention to be patentable under both the Patents Act 1977 and the European Patents Convention. More specifically, it tackles three questions to help decide whether an invention is novel: what the invention is; what information is disclosed by the prior art; and whether the invention is novel (part of the state of the art). It also looks at the so-called ‘right to work’ argument, whereby novelty helps to ensure that patents are not used to prevent people from doing what they had already done before the patent was granted, and its modification as a result of changes in the way in which novelty is determined. The chapter concludes by discussing three specific types of inventions and the problems that have arisen when evaluating their novelty: inventions relating to medical uses, non-medical uses, and so-called selection inventions.
