Patents

A patent is a contract between society as a whole and an individual inventor. The objective of a patent is to provide the holder a temporary monopoly on his or her innovation and thus to encourage the creation and disclosure of new ideas and innovations in the marketplace. A patent provides the owner exclusive rights to hold, transfer, and license the production and sale of the product or process. Patents are part of the area of intellectual property law that covers copyright and related rights, trademarks and service marks, appellations of origin, industrial designs, layout designs of integrated circuits, and undisclosed information such as trade secrets.

Patents are provided for products or processes that are new and/or involve new steps and that can have industrial application. A patent is the result of a unique discovery, and patent holders are provided protection against infringement by others. In general, machines, products, plants, compositions of elements (chemical compounds), and improvements on existing items can qualify for patent protection.

Patents go back as far as ancient Greece and Rome. Pliny wrote that one day, an inventor came before Emperor Tiberius to show him his invention of unbreakable window glass and to beseech him for an inventor s fee. Tiberius asked whether anyone else knew the formula. The man assured him that the invention was absolutely secret, whereupon the emperor immediately cut his head off “lest gold be reduced to the value of mud.”

In 1623 England enacted the Statute of Monopolies under King James I, which declared that patents could be granted only for “projects of new invention.” In the 18th century, the English judicial systems developed the prerequisite that a written description of the invention must be submitted. These developments led [Page 1268]to modern United Kingdom and U.S. patent law. Now all member countries of the World Trade Organization (WTO) are duty bound to enforce minimum standards of patent protection. Any noncompliance is liable to attract legal action.

International and National Provisions

The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) provides the international standards for patents. TRIPs requires country signatories to allow the patenting of product or process inventions subject to the normal tests of novelty and inventiveness. Three exceptions to patentability exist: (1) inventions contrary to morality; (2) innovations dangerous to life, health, or the environment, or to treatment of humans or animals; and (3) plants and animals (other than microorganisms) used for the production of plants or animals.

TRIPs confers an exclusive patent on making, using, offering for sale, selling, and importing for these purposes. Process patent protection must give rights not only over use of the process, but also over products obtained directly by the process. Patent owners also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts. The term of protection is 20 years, counted from the filing date. Under all patent systems, after this period has expired, people are free to use the invention as they wish.

Although all WTO members are subject to the patent provisions in the TRIPs agreement, patents are actually granted under national laws, so the rights are also national in scope. An Australian patent, for example, can be defended only against infringements in Australia. But the Patent Cooperation Treaty (PCT), concluded in 1970, allows inventors to patent an innovation simultaneously in other countries. A patent application filed under PCT is called a PCT application. After an inventor makes an application under PCT, the International Searching Authority (ISA) carries out a thorough search and provides a written opinion on the patentability of the invention. Again, granting procedures are handled by the relevant national authorities. No such thing as an international patent exists.

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