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Chapter

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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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.

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This chapter discusses patents, which protect inventions — often new medicinal compounds or new aspects of technology — that are novel, inventive, and capable of industrial application. There are four arguments in support of patent protection. The first is a moral justification based on the assertion that there is a natural property right in ideas. The second argument is that justice and fairness demand that there should be a reward for services useful to society. The third argument is that patents are necessary to secure economic development. Finally, the fourth justification is the ‘exchange for secrets’ theory. The Patents Act 1977 dealt with the substantive law of UK patents for the first time. The Act's provisions are influenced primarily by the terms of the Patent Co-operation Treaty 1970 and the European Patent Convention 1973. The chapter then considers the five key stages in the UK procedure to obtain a domestic patent.

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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

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.

Chapter

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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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.

Chapter

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.

Chapter

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.

Chapter

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

This chapter is concerned with two areas of law that are related to, but not traditionally part of, patent law: the system of plant variety that gives protection to the breeders of new plant varieties, and supplementary protection certificates that extend the length of patent protection in the UK and are meant to compensate owners for time lost while awaiting regulatory approval to market their patented products. The procedure to be followed when applying for plant variety rights is also discussed, along with issues of ownership, duration, and patent infringement. The chapter concludes by considering exceptions and compulsory licences relating to the plant variety system.

Chapter

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.

Chapter

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.

Chapter

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.

Chapter

This chapter considers two forms of design right available in the United Kingdom: registered and unregistered design rights. The former is the older concept and was initially applicable to designs intended to be imprinted on linen; the system was extended to other forms of product by the Copyright and Design Act of 1839. This offered protection for ‘the ornamentation and for the shape and configuration of any article of manufacture’. The notion of unregistered design right was introduced to the United Kingdom in the Copyright, Designs and Patents Act 1988. Design rights in tablet computers are also discussed.

Chapter

This chapter discusses five issues: the availability of patent protection for computer hardware and for computer software (computer programs); copyright in computer software; databases and the sui generis right; the Internet; and semiconductor chip protection.

Chapter

This chapter examines whether software should be protected by patent law or by the law of copyright, or through a sui generis form of protection. It first provides a historical background on software and copyright protection, before discussing the scope of software copyright protection and copyright infringement. The chapter then looks at several forms of copyright infringement such as offline, online, and employee piracy, and also explains the look and feel infringement by citing three cases: Navitaire v easyJet, Nova Productions v Mazooma Games, and SAS Institute v World Programming Ltd. In addition, it considers permissible acts under the UK’s Copyright, Designs and Patents Act 1988 without infringing the rights of the copyright holder, including software licences, end-user licence agreements (EULAs),. Finally, the chapter analyses cases relating to patent protection for computer software, including software patents under the European Patent Convention and the decision in Aerotel v Telco and Macrossan.

Chapter

This introductory chapter provides an overview of copyright protection. It discusses how United Kingdom copyright law has developed from the mid-16th century onward. The purpose of giving this account is to highlight two recurring themes: firstly, the law's struggle to keep up with changing technology; and, secondly, the effect of external influences on domestic law. The chapter then looks at the theoretical justifications for copyright and the extent to which they accord with the current law, and the principal characteristics of copyright, including the crucial difference between protecting an idea and protecting the expression of that idea. There are a number of aspects of copyright that do not apply to other intellectual property rights like patents and trade marks. Understanding these differences will help one in distinguishing between the different types of intellectual property right.

Chapter

The final chapter in the book examines matters relating to the intellectual property created and/or owned by a business and their responsibilities for the data they access and/or produce. Given the value of the outputs from the intellectual creativity of persons (software programs, books, music recordings etc.), this chapter outlines the rights available to protect them and the consequences for infringement. It first identifies the law surrounding creative ideas and work (copyright) before a product’s appearance (design rights) is considered. The chapter continues by assessing the protection of a brand name and image (trademarks) and finishes the substantive issues through examination of inventive ideas and works (patents). Confusion of the public through the unlawful use of an existing business’ name or product can result in the tortious liability of ‘passing-off’. Intellectual property is produced by employees and the consequences of employment status for the rights to exploit the property must be effectively managed. The chapter concludes with an assessment of developments in data protection—the GDPR, Data Protection Act, and the tactics available to businesses to avoid transgression of the law.

Chapter

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

This chapter deals with the conditions under which copyright law might protect designs as well as the limitations on the term of design protection. It first considers the subsistence of copyright in designs via two routes: either directly, by protecting the form and decoration of articles as artistic works (particularly sculptures, engravings, or works of artistic craftsmanship), or indirectly, by protecting the author of a preliminary document on which a design is based. It then discusses section 52 of the UK Copyright, Designs and Patents Act 1988, which limited the term of protection of copyright for mass-produced designs to twenty-five years, and its demise.

Chapter

Justine Pila and Paul L.C. Torremans

This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.