What is Patent Law - Essay Example

?Patent law is a specific area of law that encompasses the legal regulation, jurisprudence, and enforcement of specific intellectual property rights known as patent rights (What, n.d.). A patent is a government issued right granted to individuals or groups that protects their original inventions from being made, used, or sold by others without their permission for a set period of time (Ibid). The law of patents is a legal framework that establishes a patent system, which supports and encourages technological innovation and promotes economic development (Patent, n.d.). The law that protects and govern the patent in the UK is the Patent Act of 1977. It requires any new inventions to be a new invention; it can’t have existed before the invention was created. It must also have an inventive step. Here the law will test for obviousness, i.e. the inventive step must have been inventive and obvious to someone with knowledge and experience in the subject at hand. Finally, it must also be capable of being made or used in industry (An introduction n.d.). There are exceptions to these requirements so that it doesn’t overlap with copyright law in the UK. For example, literary, dramatic, musical or artistic works and the presentation of information, or some computer programs are excluded and cannot become a patent. There are also other exceptions including, a scientific or mathematical discovery, theory or method; a way of performing a mental act, playing a game or doing business; an animal or plant variety; a method of medical treatment or diagnosis; and against public policy or morality (Ibid). Patents are important to protect new inventions. These inventions can be protected worldwide or in just one country. Patents are made for people to make money on their invention. And the protection of these inventions is limited to 20 years. After this anybody can produce goods using the same or similar invention, this is to allow for competition and not create a monopoly ( An introduction, n.d.). The grant of a patent creates a series of exclusive rights in an invention, which vest in the proprietor of the patent. Patent is infringed when one of these exclusive rights is exercised by a person without the consent of the proprietor of the patent (Term, n.d.). An invention for the purposes of the Patents Act is an invention, which is defined by the claims set out in the patent (Ibid). Patents are available for most industrially applicable processes and devices. They may cover: Mechanical devices, such as a mousetrap. It also covers methods for doing things, such as the method used for dyeing or bleaching fabrics. It also include chemical compounds, like for example, a new drug and mixtures of compounds, like that of an improved hand cream. Patents can also cover such diverse matters like vaccines for whooping cough, wire-strippers, and chemical processes (Coyle, 2008). The commercial benefit of a granted patent is that it gives the owner the right to prevent others from exploiting, without his consent, the invention for which a patent has been granted (What is n.d.). A granted patent is a property right which can be bought, sold, licensed to others or used as security. The owner of a granted patent might use it to protect a product or service, which he sells. Alternatively, or as well, he may grant a license to one or more parties, usually in exchange for royalties (Ibid). Patents in the UK, as elsewhere in the European Economic Area (EEA), have the duration of 20 years from their filing date, subject to payment of renewal fees and not being invalidated. As mentioned above, the duration for the protection of patents in the UK is 20 years and also renewable every 5 years. After this period of 20 year other people are free to produce or copy the invention. The reason why the term is set to 20 years is because the creator should have enough time to reap the rewards of creating his invention, his intellectual property. 20 years is more than enough time to get a market lead on any invention and has been at this length for hundreds of years in the UK (An Introduction, n.d.). Indeed, there is truth to the statement that the Patent system consists of a delicate balance between granting a property right to an inventor as a just desert, and encouraging the free flow of technical development and healthy competition for societal improvement. The owner of a patent enjoys protection from manufacture, copying, import and selling your invention without your permission. In most cases the patent alone is enough to deter others, but the owner is also entitled to legal action should anybody infringe the intellectual property rights. He can seek damages for any infringement on his patent (Ibid). Accordingly, patent infringement takes place when a person exercises any one of the exclusive rights, which falls within the claims without the permission of the proprietor (Term n.d).  As patents may be granted in respect to a product, process or a product produced from a process, whether patent infringement has taken place relies entirely on a proper construction of the claims in the patent in question (Ibid.). A patent is a form of intellectual property that provides the owner with an exclusive right to use and market an invention or process. The owner of a patent has the right to prevent others from using the invention or process without permission. For example, Pharmaceutical companies acquire patents in order to protect their drugs from competition. In the United Kingdom, patents are regulated by the Patents Act 1977 (Cameron 2010). Even the first patent issued by Henry VI in 1449 lasted for 20 years and it was called a letters patent. The creator invented sealing an envelope with a wax seal with the recipient's details (An Introduction, n.d.). In the EEA, there is now a provision for granting supplementary protection certificates (SPCs) in relation to patents for medicinal and plant protection products (Coyle 2008). In respect for those products, which have received a marketing authorization, SPCs have the effect of extending the related patents for up to five years after expiry of its patent or 15 years counted from the first marketing authorization in the EU, whichever period is lesser (Ibid). The purpose of the SPC is to compensate for the reduction in the duration of patent right of a certain products due to the delays inherent in the regulatory approval process. These certificates must be sought within six months from the grant of the patent, or the grant of a marketing authorization, whichever is earlier (Ibid). Like for example, there can often be a lengthy time lapse between the granting of a patent and the granting of regulatory approval in pharmaceutical product to manufacture a drug. For this reason, companies may apply for the grant of a Supplementary Protection Certificate. This effectively extends the life of the patent, but the SPC applies to the drug itself, rather than the process for which the patent has been granted (Cameron 2010). Once the patent on a pharmaceutical product has expired, the market becomes more competitive. Generic equivalent drugs are virtual copies of the original, patented drug and these will be usually be marketed by competing pharmaceutical companies at a lower price (Ibid). Patent systems are designed to encourage the disclosure of information to the public by rewarding inventors for their endeavors. One might say that a patent is a contract between society as a whole and the individual inventor. Under the terms of this social contract, the inventor is given the exclusive right to prevent others from making, using and selling the patented invention for a fixed period of time in return for the inventor disclosing the details of the invention to the public (Hefter and Litowitz 1995). A patent rewards the investment of time, money and effort associated with research; it stimulates further research as competitors invent alternatives to patented inventions; and it encourages innovation and investment in patented inventions by permitting companies to recover their research and development costs during the period of exclusive rights (Ibid). The limited term of a patent also furthers the public interest by encouraging quick commercialization of inventions, therefore making them available to the public sooner rather than later. Patents also allow for more latitude in the exchange of information between research groups, help avoid duplicative research, and most importantly, increase the general pool of public knowledge (Ibid). A look at the pharmaceutical industry in Italy before and after patent protection for pharmaceuticals became available in that country provides a good illustration. Prior to granting protection, there was significantly less capital invested in Italian pharmaceutical research and development when compared to the amount of money invested in the research and development of other technologies. Following Italy's enactment of patent laws protecting pharmaceuticals, the relative investment in the pharmaceutical industry in Italy rose significantly (Ibid). This is how the UK patent system encourages free flow of technical development and healthy competition while protecting the new and novel invention. As stated above, the grant of patent rights for a period of 20 years is considered enough for the inventor or novel maker to reap the fruits of his or her success and a period for him or her to develop new and novel invention and improved his or her intellectual property. The original products enjoy premium prices and exclusivity profits under patent protection, and face fierce price competition after patent expiry ( Magazzini et al. 2004). In the UK, when a patent is filed, the invention and its design come under the protection of the patent. This means that anyone attempting to patent an invention based on the original design, can be stopped from marketing his or her product. Even if the new patent is an improvement on the original invention, the original invention still belongs to the patent holder (Laverty 2010). A patent holder can involve others in exploiting, developing or marketing her invention. Usually this involves a license agreement. The marketing of a product is a private business matter between the inventor and the marketing agent (Ibid). A proprietor of a granted UK patent or European patent in force in the UK is entitled to extend the rights of a patent to other States not party to the EPC, PCT, Paris Convention or WIPO. This is referred to as an extension of rights ( Extension n.d). Patent duration which is "the period in which the patent holder has monopoly rights to their invention, the granting of usage, distribution, and marketing rights to others, and the right to commercial benefit from such for a specific period" (Patent Duration n. d.) is important to the patent holder as well as to those who wish to market the same product. After the patent duration of 20 years, the invention becomes public domain and anyone has the right to use it, distribute it and to make profit from it. As such there is a window of opportunity period to commercially benefit from the patent, which is 20 years in duration. The inventor must exploit the invention in this period while having exclusive rights to it (Ibid). Hence, it would be correct to say that the grant of patent system creates a balance between granting a property right to an inventor as a just desert, and encouraging the free flow of technical development and healthy competition for societal improvement Another worthy to state I connection with the statement that "Patent system consists of a delicate balance between granting a property right to an inventor as a just desert, and encouraging the free flow of technical development and healthy competition for societal improvement" is the employee's right to compensation for contributions to patented inventions. The Patents Act 1977 implements a statutory regime whereby an employee of a company may become entitled to a measure of financial reward or compensation where the employer has obtained a large benefit from a patented invention made by an employee. The measure of compensation relies upon the contribution made by the employee to the patent (Employees n.d.). An entitlement for compensation arises regardless of the country in which an employer obtains a patent. Where the invention is of ‘outstanding benefit’ to an employer, the employee becomes entitled to a fair share of the benefit (Ibid). In this way, employees are encouraged to support the invention of the employer and allow technical development. WORK CITED 1.What is Patent Law. Available at Wisegeek Website.[Accessed on May 23, 2011]. Website: http://www.wisegeek.com/what-is-patent-law.htm 2. Patent Law. Available at World Intellectual Property Organization Website. [Accessed on May 23, 2011]. Website: http://www.wipo.int/patent-law/en/ 3. An introduction to Patent Law in the UK. (n.d.). Available at Factoidz Website. [Accessed on May 23, 2011] website: http://factoidz.com/an-introduction-to-patent-law-in-the-uk/ 4.Term: Patent Infringement. (n.d.)Availablet at website: http://www.gillhams.com/dictionary/651.cfm. [Accessed on May 21, 2011]. 5. Jane Coyle. Types of Patent and Their Duration. June 6, 2008. Lawdit Reading Room Website. [Accessed on May 23, 2011]. Website: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/8072-JC-types-of-patents-and-thier-duration.htm 6. What is a Patent? (n.d.). Available at Hindle/owther Website. [Accessed on n 23, 2011]. Website: http://www.hindlelowther.com/patent1.htm 7. Holly Cameron. November 19, 2010.UK Patent laws on Pharmaceuticals. Available at E.How [Accessed on May 23, 2011]. Website. http://www.ehow.com/list_7367729_uk-patent-laws-pharmaceuticals.html#ixzz1N9k6OL1r 8. Laurence R. Hefter and Robert D. Litowitz, Protecting Intellectual Property. June 12, 1995. Available at http://usinfo.org/trade/bg9515e.htm. [Accessed on May 23, 2011]. 9. Laura  Magazzini, Fabio Pammolli and Massimo Riccaboni. Dynamic Competition in Pharmaceuticals: Patent expiry, generic penetration, and industry structure . The European Journal of Health Economics, Volume 5, Number 2, May 2004 , pp. 175-182(8)Publisher: Springer. Available at Ingenta Connect Website. [Accessed on May 23, 2011]. Website: http://www.ingentaconnect.com/content/klu/10198/2004/00000005/00000002/art00012 10. Shea Laverty. Patent Rights in the UK. July 5, 2010. Available at E-how Website. [Accessed on May 23, 2011]. Website: http://www.ehow.com/list_6699520_patent-rights-uk.html 11. Extension of UK Patent Rights. Available at HLBBshaw Ltd Website. June 2010 [Accessed on May 23, 2011]. Website: http://www.hlbbshaw.com/uploads/files/20100617030935_3744.pdf 12. Employee's Rights to Compensation for Contribution to Patented Inventions. Available at Gillhams Solicitors and Lawyers Website. [ Accessed on May 23, 2011]. Website: http://www.gillhams.com/articles/399.cfm 13. Patent Duration: what is the patent duration? (n.d.). Available at Smit and Van Wyk Website. [Accessed on May 23, 2011]. Website: http://www.svw.co.za/2010-05A-Patent-Duration.html Read More