Legal Aspects of Patent Rights - Essay Example

Law of Patents A patent law is the exclusive right that is granted by a sovereign entity especially a state of an investor or the representative of an investor for a period of time in exchange to the investor or the representative to reveal an invention. The investor or the representative of the investor is known as patentee. The process of granting the patentee the exclusive rights and the requirements vary in different nations and are subject to the national laws of a country and the international agreements. In most cases, a patent application must have a claim or a number of claims that clarify the originality, utilization, inventive or industrial application of the patent. In many countries there are restricted areas where patent laws are applicable and these include such areas as methods of businesses and also act of mentality. The patent rights prevent other entities from selling, using, making or distribution of the invention without the patentee permission (Lehman, 1995). Agreement on Trade Related Aspects of Intellectual Property Rights of the World Trade Organization is applicable to all members of the organization as far as any inventions are considered especially as far as technology is concerned. The protection term has been to be more than twenty years by the organization (Steinberg, 2005). A patent excludes others from making use of your invention for a limited period usually 20 years subject to fees maintenance. In essence it is like any other property right because it can be sold, transferred, or basically abandoned once the exclusive period has expired. The government is the provider of the exclusive rights but only if you agree to provide the invention details to the public after the stipulated period of 20 years or 17 years. The rights of the patent vary according to different nations (Silverthorne, 2004). Since the patent gives the patent holder some exclusive rights and indeed a monopoly it does not however mean that the patent holder can in any way can abuse the patent. For instance, a number of inventions are further developments of prior inventions which mean that the invention may as well be covered by another person patent. If the inventor adds a new feature to existing design and makes new improvements to the design and in the process obtain a patent in accordance to the design improvement then he/she can only build his/her improvements legally with the patent holder’s permission if only the original patent is still being used. Also the owner of the improved design can rule out the patent holder of the original design from using the improved design. Some nations have established working provisions which require that the invention should be exploited according to the areas it covers. Failure to do that may result to revocation or transfer of the patent rights but usually can be challenged by the patent holder (Steinberg, 2005). Patent is generally imposed through civil lawsuits although some nations such as France have established criminal penalties for reckless infringement. Characteristically, the patent holder will demand compensation for the past encroachment and will look for an injunction ruling out the accused infringer from future acts of infringement. In order to establish that the acts of infringement are practiced, the patent owner should establish that the defendant is practicing one of the claims of the patent. In most cases patents are resolved through patent licensing but not through litigation. There is basically a kind of contract in which the patent holder is in agreement with the licensee in order not to sue for infringement but usually in return for some form of payment. In reality it is a common scenario to find out that major companies that engage in technical production enter into some form of license agreements that guarantees them smooth production of their products. It is equally the same to the competitors in such fields that license patents to guarantee them cross-sectional access to patents of each other (Gantz, 2005). The patent ownership is varied from country to country. In the U.S. the patent inventor only need to apply for the patent but in some cases it can be assigned to corporate entities and the inventor(s) are required to engage in assigning inventions to their employers. According to the EU under the rule of law the invention may pass from inventor to the employer if the new developments were made during the normal working days. This usually ends up with the inventor being the proprietor of the patent once the patent is granted. In some cases the patent may be granted to more than one person, and then the law of the country will ensure that the agreement between the two or any other number of proprietors may challenge the extent to which the number of proprietors may exploit the patent. For instance, in some countries given proprietor may assign rights as according to the patent to another person while the law according to some countries restricts this transfer of rights without the prior permission between the proprietors (Lehman, 1995). The liquidity of the patent is normally increased once the ownership rights are assigned. Therefore this means that the patent is like a property and inventors can at any time get the patents and sell them back to third party agents. These third parties can then own the rights of the new inventions out of their own developments of the prior inventions and can subsequently restrict others from abusing the claimed inventions even the prior inventors (Steinberg, 2005). Governing laws Patents are governed by national laws hence they are territorial in nature. The patent system is administered through the patent office which generally has the responsibility of granting patents. Lately there have been some developments that strive to harmonize global patent laws. The World Trade Organization has been formulating these standards with a key convention being carried out in Paris. The Paris meeting established different rules in relation to different products but it never provided legal implications. The most important aspect of the meeting was the priority that was assigned to the rights; that is the filing of an application by any member state that was in the Paris meeting guarantees them one year to file in any member state that was in the Paris meeting and additional advantage to backtrack to the original filing date (Nimmer, 1997). The authorities that govern patent statutes vary also in different countries. In the U.S. for instance, congress is empowered by the constitution to make laws and this is the body that are responsible for creating the U.S. Patent and Trademark Office. Additionally, there are international procedures that centralize filing and examination procedures. Example of this international organization that carry out this procedure is European Patent Organization (Barton, 2005). Patent application A patent is normally applied through filing an application to a relevant patent office. The details of the application include an in-depth description of how to come up with the new invention and how to use it. The invention should also provide enough details for a person skilled or relevant with the technology in order for them to make use of the invention. In some countries, they require details that that show the requirements that are needed to provide certain information for example the worthiness of the invention, technical problems to be solved by the invention, the best procedure to perform the invention only known to the inventor and also some drawings to illustrate the invention (Gantz, 2005). The patent application may also require one/more claims although not necessarily important when filing the first application. The claim seeks to show what the applicant needs to protect since the patent owner has the right to restrict others from using, making or selling their invention. In essence, the claims bring out the scope of protection. For a patent to take a legal effect it should meet the patentability requirements of the said country. Therefore, requirements to compliance to these requirements are examined via the application you give to the patent office. Hence, if the application does not meet the necessary requirements they are communicated through the patent agent and more opportunities that guarantee compliance are usually in provision to those whoa are seeking the patent application. Once the patent has been granted the patent becomes now formal and is subjected to renewal fees payable on an annual basis although the United States is the exception (Banta, 2001). Copyright Laws The term copyright means a temporary monopoly that is granted by a government of a country to the creator of some work which is deemed original and this monopoly is granted for a period of time. The rights that are accrued to a copyright protect other entities from distribution, adaptation and publication and after the period of protection, the work is said to enter the public domain. It is important to note that copyright laws protects only the original expressions of the author but it does not extend to the ideas the author wanted or the factional information the author has copyrighted and it does not also widen any other material that the author has included into its work (Silverthorne, 2005). Copyright is internationally recognized as a standard lasting between 50-100 years from the death of the author or a fixed period for given authorship. In some instances copyright have been established through some form of formalities but most often many recognize copyright as a completed work without any formal registration. In most cases copyright is put into effect as a civil issue although in some jurisdictions they do put into effect criminal sanctions (Gantz, 2005). Copyright is responsible for enforcing some limitations allowing some reasonable exclusivity to the author of the copyright while at the same time guaranteeing some rights to the users. The growth of computer network technologies, the digital media and the World Wide Web has ended up in re-interpreting some exceptions hence introducing some new difficulties in copyright enforcement and bringing some further challenges to the copyright law. Additionally, some companies which have greater dependencies on copyright for economic reasons have been in the forefront in advocating the expansion as well as extension of their copyrights and seeking extra enforcements on legal and technological issues (Moores, 2005). In the U.S. there are five major differences and a sixth practical one between a patent and a copyright. These are; the subject matter being protected, protection requirements, duration, when protection commences, infringement and the sixth elementary difference is cost (Lehman, 1995). As a subject matter, the copyright is responsible for the author’s works which in essence are the pictorial, dramatic, sculptural, fictional, audio-visual, pantomimes, sound recordings and choreographic works. A patent on the other hand is responsible for covering an invention which generally means a new feature of a product or the process of coming up with the product (Gantz, 2005). The protection requirements demands that for a copyright to be effective there should be no form of any formalities rather it should be of original form and in tangible form. For a patent to take effect the invention must be original and not obvious and it should be issued by the Patent and Trademark Office. Additionally, protection of the copyright commences as soon as work has been created. The protection of the patent does not commence until the patent is granted (Ghosemajumder, 2002). The length of the copyright is usually the length of the author’s life plus additional fifty years. The patent on the other hand lasts seventeen years in the U.S. from the date the patent is granted but in European and some Asian nations like Japan the duration is usually 20 years. The patent is usually measured from the application date. For a copyright to undergo infringement, the work should have been copied from distributed or displayed source. Therefore, if the same work is independently created by any other person other than the author, then no infringement can occur. On the other hand, a patent prevents anyone from copying the original invention of the patent by the patent holder. In reality, a copyright is essential in protecting the rights of the author that are intrinsic in their work. Contrary to this, a patent is open to the public domain that is the patent holder is deemed to provide invention details to the public once the patent holder has been granted some exclusive rights by the state for given period of time. The sixth elementary difference that we talked about was cost. In essence the cost of a copyright is free. The copyright has no much application costs well in the ability of the copyright registration person. The patent is more complex and costly because it has a lot of paper works and strict procedures to follow. The cost is expensive because you have to go to the Patent and Trademark offices and to add on that you require services of a registered patent agent which means you may need a lawyer to draft the application adding to the total cost (Lindsey, 2003). References Banta, D.H. (2001). Worldwide interest in global access to drugs. The Journal of the American Medical Association, 285 (22), 2844-2846. Banta, D.H. (2001). Worldwide interest in global access to drugs. The Journal of the American Medical Association, 285 (22), 2844-2846. Barton, J.H., Emanuel, E.J. (2005). The patents-based pharmaceutical development process: rationale, problems and potential reforms. The Journal of the American Medical Association, 294(16), 2075-2082. Ferreira, L. (2002). Access to affordable HIV/AIDS drugs: the human rights obligations of multinational pharmaceutical corporations. Fordham Law Review, 71(3), 1133-1179. Gantz, John & Rochester, Jack B. (2005). Pirates of the Digital Millennium. Financial Times Prentice Hall. Ghosemajumder, Shuman. Advanced Peer-Based Technology Business Models. MIT Sloan School of Management, 2002. Lehman, Bruce: Intellectual Property and the National Information Infrastructure (Report of the Working Group on Intellectual Property Rights, 1995) Lindsey, Marc: Copyright Law on Campus. Washington State University Press, 2003 Moores, Simon - "March of the Spiders:" Policy Challenges for Copyright in the Digital Publishing Environment (2005) Nimmer, Melville; David Nimmer (1997). Nimmer on Copyright. Matthew Bender. Silverthorne, Sean. Music Downloads: Pirates- or Customers?. Harvard Business School Working Knowledge, 2004. Steinberg, S.H. & Trevitt, John (1996). Five Hundred Years of Printing (4th ed. ed.). London and New Castle: The British Library and Oak Knoll Press Read More