Patents

 

Patent Evolution History: from Inventor to Attorney

Based upon the Latin word for “to lay open” (for public inspection), or patere, it was known as “letters patent” before patents were formalized in a modern fashion. A new, useful, non-obvious process, machine, manufactured article, or matter composition have been eligible for patent.

In the mid-1400s, patents were given in Venice, Italy, for mainly glass objects, and were effective in providing protection for typically 10 years. A requirement of presentation of a new invention to the local government was required, and in return public protection would be granted. The English system evolved subsequently, but the challenge (in the 1500s) was concern of abuse of patents, in regards to effectively issuing monopolies (per the English crown). James I of England revoked these “monopolies” with replacement of this system by a fixed number of years for issuance. Fast-forwarding to the late 1700s, further clarification was issued, in that patents could be granted for improvement of existing machine, with James Watt utilizing this for the steam engine.

The first North American (as the U.S. was not officially formed yet) patent was granted in 1641 to Samuel Winslow (Massachusetts, for new salt-making process); but ironically, some 150 years later, another chemical was patented in the U.S. with Samuel Hopkins granted a patent for producing potash (1790).

Patents: Present Law & Litigation

Practically, today’s “patent” is phrased as a “right to try to exclude by asserting the patent in court” the ability to prevent others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent (usually 20 years from filing date). It can be sold or traded, or mortgaged, licensed, or abandoned.

Today’s law requires that a patent owner seeks “monetary compensation for past infringement, seeking injunction prohibiting defendant from engaging in future acts of infringement – requiring all specifics of at least ONE claim to be violated. A countersuit by the defendant may be filed as well, with litigation ensuing. Patent laws vary, in the legal system of countries. Lawsuits may be tried as per jurisdiction and laws in different areas, as these may be variable. However, some countries have procedures that allow already-determined matters from being re-litigated (for potential “malpractice”) if validity has already been established elsewhere (again, up to the specific country).

Cross-licensing agreements, where a license may be issued for a patent by one party to another and reciprocally, allow potential competitors to interact to accomplish certain functions – particularly useful in potentially interrelated fields such as biotechnology.

In the U.S. presently, only individual inventors may apply for a patent, which can be assigned to a company; depending upon the country in which filed, certain rights are conferred upon the inventor(s).

In 1977, the U.S. Congress Title 35 of the U.S. Code, creating the “U.S. Patent and Trademark Office (USPTO).” Much later, the World Trade Organization (WTO) sought towards global harmonization of such laws, so that worldwide similarities could result. Centralization examples in Europe, such as the Paris Convention (1883) allowed member states to recognize patents; similarly, the Patent Cooperation Treaty (PCT) administered by WIPO for 140+ countries.

The process of patent application by inventor follows a format, at which point the application is designated as “patent pending.” An approximately E32K cost for 10-year maintenance of a patent has been suggested by the European Patent Office (in 2005 Euros); as of the year 2000 in the U.S., the corresponding cost was between $10K-$30K per patent. Lawsuits, however, resulted in increased cost – 95% of patent cases were settled out of court, but in-court cases did cost in cases millions of dollars. Hence a group of “patent trolls” has been cited, who may threaten litigation for potential malpractice, to benefit themselves.

Patent Futures: Alternatives & Controversies

The idea of patents, as we have discussed, has evolved over the better part of the last 1000 years. However, an interesting conflict noted circa 1500 is re-visited in today’s world with drug companies, for example, holding patented technology (and charging subsequent premiums as part of a capitalistic system). For a rare condition or not-so-rare condition with the only cure/treatment option, this could constitute (and has been interpreted) as a monopoly. While African and other countries despair (as noted by The Clinton Global Initiative and physicians such as Dr. Paul Farmer who visit overseas), many companies have discounted such unique drugs (e.g. for HIV), but the laws still remain (and subsequently require case-by-case discounting decisions rather than necessarily affordability).

Other alternatives to patents include a “defensive publication” – to establish prior art and identification publicly – which may or may not be anonymous (but can prevent subsequent patenting). Trade secrets, another option to a patent, allows confidentiality to be maintained until publicly disclosed (and have no time limits ) – however, such trade secrets may be vulnerable to reverse engineering (although Coca Cola remains with trade secret presently, with litigation a threat should there be disclosure improperly).

Overall, he world of patents remains a protective one – while one side of the coin affords a “monopoly” type structure, there is incentive to invent and create/solve problems which individuals may never undertake otherwise. Hence, facilities such as the USPTO govern what may be a useful function for not only legal matters, but for solving many of life’s problems (or at least improving life).

(portions of this article are from sources including uspto.gov, jurisdiction.com, trollingeffects.org, and Wikpedia.org)