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Cover European Intellectual Property Law

8. Patent Protection and Exploitation  

Justine Pila and Paul L.C. Torremans

Once a European patent has been granted the nature and scope of the protection it confers must be determined. In considering such protection this chapter focuses on four issues of central importance to that end. The first is the effects of a patent, namely, the territories in and term for which it is valid. The second is the object of protection, namely, the subject matter that the public is excluded from using during the term of its protection. The third is the nature of protection, namely, the uses of the subject matter from which the public is excluded. And the fourth is the limitations to protection, namely, the uses of an invention that the law permits notwithstanding its protection by patent grant.

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8. Patents—an overview  

This chapter, which comments on the patent system, argues that while there is sufficient evidence to criticize the patent system, the mere fact that thousands of patents are granted annually suggests that all is not lost. Much of the law functions well and the time taken to grant a patent is a result of painstaking efforts to ensure that the invention fits in with the legal criteria. In so far as the patent system may be criticized, it is clearly having trouble getting to grips with ‘cutting edge’ issues, such as biotechnology, nanotechnology, and synthetic biology. The bottom line is that despite its imperfections, the patent system is a high-quality system involving detailed claims and their full examination.

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14. Key elements of the patent system  

This chapter considers the nature and manner of operation of the patent system. Patents date back to around the 14th century. For the United Kingdom they began as a means to encourage the importation of foreign skills and technology, fell into disrepute as they were used by monarchs to confer monopolies in respect of the sale of well-known objects such as playing cards and eventually from the late seventeenth century settled into their present role of granting temporary monopolies to those who make inventions. The chapter examines the criteria that will be applied in determining whether an invention is eligible for patent protection and the procedures that will required to be followed in order to obtain this. Unlike copyright which applies effectively on a global basis, the patent system has operated on a national basis. A UK patent will be valid and enforceable in the UK but nowhere else. There are international agreements, however, designed to simplify the task of obtaining protection in a range of countries and the operation of these will be considered as well as the treatment of intellectual property within the General Agreement on Trade in Services and the World Trade Organisation. Within the European Union, the possible introduction of a unitary patent has been the subject of discussion for many years and appears likely to come to fruition in the near future although the involvement of the UK post Brexit is uncertain.

Chapter

Cover Contemporary Intellectual Property

10. Patent regimes and the application process  

This chapter assesses the rationales and justifications commonly seen for and against patents, which inform all aspects of patent law. Against this backdrop, the chapter explains the architecture and procedures of contemporary patent systems as they operate in the UK, within the European patent system, and through international agreements, instruments, and procedures. The chapter considers the patent registration process in the UK. Unlike copyright—and like registered trade marks and registered designs—patent protection is a registered right, granted by an intellectual property office following an application and examination process. The chapter also reviews changes over time and areas of particular debate and possible future evolution.

Chapter

Cover Contemporary Intellectual Property

10. Patent regimes and the application process  

This chapter assesses the rationales and justifications commonly seen for and against patents, which inform all aspects of patent law. Against this backdrop, the chapter explains the architecture and procedures of contemporary patent systems as they operate in the UK, within the European patent system, and through international agreements, instruments, and procedures. The chapter considers the patent registration process in the UK. Unlike copyright—and like registered trade marks and registered designs—patent protection is a registered right, granted by an intellectual property office following an application and examination process. The chapter also reviews changes over time and areas of particular debate and possible future evolution.

Chapter

Cover European Intellectual Property Law

6. Patentable Subject Matter  

Justine Pila and Paul L.C. Torremans

This chapter considers the subject matter for which European patents may validly be granted under the European Patent Convention (EPC), and the substantive European (EPC and EU) legal principles governing their identification and conception. To this end it discusses the two-fold role of the requirement for an invention in European patent law: first, as a means of filtering protectable from non-protectable subject matter; and second, as a means of denoting the object of patent protection, i.e. that which must be new, inventive, susceptible of industrial application, and clearly and sufficiently defined and described in the patent specification, and that with reference to which the scope of the patent monopoly is defined under Article 69 EPC. It also discusses the range of public policy-based exclusions from European patentability, and their relation to the requirement for an invention itself.

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5. The Procedure for Obtaining a European Patent  

Justine Pila and Paul L.C. Torremans

This chapter considers the procedure for obtaining a European patent directly from the European Patent Office (EPO) and indirectly from a competent patent office of a European Patent Convention (EPC) Contracting State or by international patent application under the Patent Cooperation Treaty 1970. It also considers the result of each procedure, and the focus within the European patent community on reducing the burden on patent applicants and improving patent quality with a view to minimizing the risk of a patent's revocation post-grant.

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6. Infringement and revocation  

This chapter discusses the law on patent infringement and revocation. The grounds on which a patent may be revoked are established by s. 72 of the UK Patents Act 1977. On the issue of infringement, s. 60 of the 1977 Act is the key provision and unusually makes separate, although not dissimilar, provisions for patents that are for products and those that are for processes. Interpretation of claims is a key aspect of any infringement case.

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16. Ownership of patents  

This chapter assesses the ownership of patents. Teams of researchers often work together towards a common goal. This means that there are sometimes disputes about who actually invented the product or process covered by a patent. Resolving these disputes is of significance because under patent law the owner possesses the right to grant licences to make use of the patented invention in exchange for a fee or royalties, and the right to sue for infringement. Before deciding who is entitled to the ownership of an invention it is first necessary to examine what is meant in law by the word ‘inventor’. Having examined the criteria used by the courts to identify an inventor, one must now consider the special statutory rules concerning employee–inventors. Once it has been decided who owns an invention, there is a scheme of compensation for employee–inventors.

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4. Patentability  

This chapter discusses the conditions for the patentability of an invention. According to s. 1(1) of the UK Patents Act 1977, a patent may be granted only for an invention in respect of which the following conditions are satisfied: (a) the invention is new; (b) it involves an inventive step; (c) it is capable of industrial application; and (d) the grant of a patent for it is not excluded by subsections (2) and (3). Section 1(2) states that discoveries, scientific theories, and mathematical methods cannot be regarded as inventions and are thus not patentable; likewise barred from this status are works properly found within copyright, schemes for performing a mental act, playing a game, or doing business and computer programs, and also the presentation of information. Section 1(3) limits the role of patents by denying their protection to offensive, immoral, or antisocial inventions.

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7. Supplementary protection certificates and the unitary patent  

This chapter considers certain aspects of the involvement of the European Union (EU) with patent law. These aspects involve add-ons to a traditional patent system that is based on national patents. The first—supplementary protection certificates—is already in place. The other, the unitary patent, is close to becoming a reality.

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Cover European Intellectual Property Law

4. Introduction to European Patent Law  

Justine Pila and Paul L.C. Torremans

This chapter introduces the European law of patents and related rights with a discussion of the nature of patents as limited-term monopoly rights granted in respect of new, inventive, and industrially applicable inventions and the routes to obtaining patent protection in Europe. It then considers the existing European patent system established by the European Patent Convention 1973/2000, including its basis in state-based conceptions of IP territoriality, and the challenges presented to that system by globalization and developing technology. And finally, it discusses the long-standing pursuit of a unitary patent and unified patent court for Europe, including the reasons for each, and the features of the proposed Unitary Patent Package of 2012/2013.

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11. Patents I: Justifications, Registration, Patentable Subject Matter, and Industrial Application  

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 begins with an overview of the history of UK patent law. It then discusses: justifications in support of patent rights; sources of patent law; obtaining a patent; patentable subject matter; exclusions from patentability relevant to biotechnological inventions (e.g. plant and animal varieties and non-microbiological processes for their production; software and business methods; and inventions that are contrary to ordre public or morality); industrial application requirements for patentability; and methods of medical and veterinary treatment.

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15. Software patents  

This chapter focuses upon the somewhat complex manner in which the patent system has operated in respect of so-called software-related inventions. For a variety of reasons, the United Kingdom’s Patents Act and the European Patent Convention both exclude programs for computers from eligibility for protection. The prohibition extends only to protection for the program “as such” and as interpreted by the patent and judicial authorities applications for inventions that produce a technical effect are considered acceptable even where these are based on programs. This chapter will consider how this situation has arisen and will consider the application of software related patents in key sectors such as that of mobile phones in which products and network technologies make very extensive use of patented technologies. The concept of standard essential patents has attained considerable prominence and requires the owner of such a patent to make its use available to others upon fair and reasonable licence terms. As well as possessing a degree of ambiguity as to what terms might be fair and reasonable, the situation is highlighting the problems of trying to apply national patents in the context of a global industry.

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3. Origin, background, and international aspects of the patent system  

The patent is the longest-standing, best-known, and, arguably, most economically valuable form of protection of rights provided by the law of intellectual property. A patent is, in essence, the grant of a monopoly to an inventor who has used his or her skill to invent something new. Patents may cover entirely new products, enhancements to pre-existing products, or a new or improved process for performing an activity. This chapter begins with a discussion of the history and purpose of patents. It then turns to the international dimension of patents, covering the Paris Convention for the Protection of Industrial Property 1883, the Washington Patent Cooperation Treaty 1970, the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, the European Patent Convention, and the Patent Law Treaty. It also outlines the steps to be taken in obtaining a domestic patent.

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7. Secondary Patentability Requirements  

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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12. Patents II: Novelty, Inventive Step, Sufficiency, and Support  

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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Cover Contemporary Intellectual Property

11. Patentability  

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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5. Use and grant in the UK and Europe  

This chapter addresses the question of who is entitled to the patent and who will own it. Patent law operates a ‘first to file’ system and the presumption is that the person filing the application is entitled to the patent. Section 7 of the UK Patents Act 1977 nevertheless brings the inventor into the picture as the person who is logically entitled to the patent. There is also room for contractual transactions in this area.

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23. Exploitation  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter looks at the many different ways in which patents may be exploited and some limits to exploitation. It first explains how patentees themselves can exploit the patent and considers two of the more common forms of voluntary uses: assignment and licence. It then describes situations in which compulsory licences are available and the compensation payable where the patent is used via a compulsory licence or by an employer or the Crown. Mortgages, testamentary dispositions, and registration of interests and transactions are also discussed, along with the effects of competition law on patent law. It also looks at employee compensation for their inventions. The chapter concludes by assessing compulsory licences under section 48 of the Patents Act 1977, the licensing and cross-licensing of biotechnological inventions, and compulsory licences for public health.