Patent Your Invention example essay topic

INTELLECTUAL PROPERTY LAW Anything that can be owned can be viewed as property. It can be a tangible thing, such as a car, a home, or a piece of land; or it may be an intangible, artificial right created by social interaction or legislation, such as a right to receive money under a contract or the right to control the use in commerce of the trademark Gelatissimo. In all cases, whether tangible or intangible, property may be valuable and it may be transferred to others, whole or in part. For example, a home may be sold or leased for a period of time; and a trademark may be sold with a business or licensed to a franchisee. Intellectual property is an intangible type of property commonly thought of as the product of intellectual activity. Inventions, original works of art, know-how, magazine articles, books, computer programs, photographs, poems, movies, songs, theatrical performances, speeches, experimental results, sound recordings, and music scores are all examples of intellectual property.

As such, they all are assets that may be valuable and worthy of protection. Intellectual property law is the body of laws that provide the conditions under which intellectual property may be protected and establish the rights of the owners. Thus, it is important to be able to identify what is intellectual property, on one hand, and how to protect it, on the other. Generally speaking, different areas of the law exist to protect different kinds of intellectual property, with some overlap in some cases. The laws related to patents, copyrights, trademarks, and trade-secret / secrecy -agreements are the vehicles available in our legal system for the protection of Intellectual property. Broadly speaking, these four distinct areas of the law apply to the following kinds of intellectual property: 1. patent law, for inventions and discoveries. 2. trademark and service-mark law, for names, logos, symbols and other items used to identify the source of products and services. 3. copyright law, for original artistic and literary works. 4. trade secret law, for proprietary ideas, inventions, and discoveries suitable for secrecy.

Each area of the law is separate and in large part specific to one kind of intellectual property only. For example, patent law protects inventions, such as your calculator, but not works of art, such as an original painting. Trade-secret law protects useful confidential information, such as the Coca Cola formulation, but not the trademarks used by the company to market its products, such as Coca Cola, Coke or Fanta. As illustrated above, for legal rights to attach to intellectual property, it must also be of a kind susceptible of ownership by an individual or entity, so that it can be treated as property. For example: -dealing with discoveries, it is obvious that one could not own exclusively a naturally occurring substance (such as iron). By its nature, it must be capable of belonging to anyone, and to the public at large.

You cannot prevent others from using a new element simply because you discovered it (although you could keep it secret and use it to your advantage and the law would protect your right to do so). -dealing with trademarks, you cannot retain the exclusive right to use English words. You could not call a beverage 'soft drink' and prevent the public from using those words. Many and different kinds of things result from intellectual activity and are properly considered intellectual property attributable to specific human activity (by way of creation or discovery). For example: -abstract concepts, such as the idea of protecting buildings from lightening by intercepting it above the building and grounding it. -ideas reduced to practice (inventions), such as the lightening rod, which is a physical embodiment of the abstract concept enunciated above. -discoveries, the realization of useful information, such as the fact that penicillin kills bacteria, or that gravity can be used to produce work. -literary works, such as novels, poems, plays, biographies and textbooks. -artistic works, such as sculptures, paintings, photographs, films and videos. -musical compositions, such as sound tracks for movies, songs, symphonies and operas. -scientific works, such as experiments, procedures, data, reports and articles. -electronic-medium works, such as computer programs of any kind, written in any language, for any machine. -distinctive marks used in business to indicate the origin of goods and services, such as names, logos, slogans, sounds, scents, and even colors. Note that intellectual property is that intangible component of property that can be owned or possessed separate from and often in addition to a tangible component. Its value is not associated with anything concrete that can be directly used and enjoyed, but rather with what it enables one to do.

For example, a copyright in an original work, such as a painting, is the intellectual property that gives the owner the exclusive right to make copies of the painting. That is the intangible property right that constitutes intellectual property. On the other hand, ownership of the painting itself (the frame and canvas with the picture) is a tangible-property right that gives the owner the right to possess, sell, or otherwise dispose of the painting, but not the right to make copies. Some intellectual property can be protected under U.S. law, some other cannot. What can be protected is strictly a matter of legislation and common law, based on policy considerations and tradition.

With some notable exceptions (such as drugs derived from natural substances and medical procedures, which are not protected in various countries), most foreign countries afford protection to essentially the same basic items of intellectual property covered by U.S. law. Patent Law Patent law is the body of federal statutes, regulations and case precedents governing ownership and the proprietary rights associated with ownership in certain inventions and discoveries. All patent statutes are founded on Art. 1, Sect. 8, Clause 8 of the U.S. Constitution, which gives Congress the 'power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

' Pursuant to this power, only Congress can legislate with respect to patent matters, which are only covered by federal law. Any state law dealing with patents would be unenforceable because pre-empted by this constitutional provision which empowers Congress alone to enact laws related to patents. The first patent statute was enacted in 1790; the last in 1952, but the statutes are amended and expanded every year. A modern patent is a property right in an invention. It gives the owner of the patent the exclusive right to practice and exploit the invention for a certain period of time within a certain territorial jurisdiction. Therefore, patents are specific to each country and must be secured independently in all countries where protection is desired.

From a historic perspective, the U.S. patent system, as we know it today, is more than 200 years old. But the idea of patents, as special privileges granted by a government to individuals or groups of individuals, clearly existed in medieval times and some people even trace it to ancient Greece. Medieval monarchs used to give to special groups the exclusive right to practice certain trades or arts, such as glass blowing, and leather and silk making. These monopoly rights, often called patents, were given as favors to groups that had become influential and powerful through the successful practice of their art or trade. Thus, these groups of artisans, or guilds, enjoyed enormous commercial advantages by being able to corner the market in their industries. They had patent monopolies.

Notable among these were the monopolies granted by the British Crown to importers of spices, and other products brought to England from around the world. Similar advantages were sometimes given to foreigners in the form of importation patents. These granted foreign importers the exclusive right to sell or practice in the territory in exchange for bringing a new industry to the country and training the local population. The result was again a monopoly on the activity, with a great burden on free competition and an excessive control of trade and industry by royal privilege. Apart from the advantage given an importer of a new technology, patents did not have much to do with inventions, but rather more with commerce. Because of the negative impact that these patent monopolies were having on the price of many commodities, including staples, in 1623 England passed the Statute of Monopolies in order to limit the sovereign's power to grant patents.

In the meantime, as the world was entering the industrial revolution and becoming more and more affected by new discoveries and inventions, the idea of rewarding inventiveness and of promoting new scientific developments for the general welfare of all was taking root and the patent system became the vehicle for its realization. Thus, by the time people moved to America and organized societies on this continent, virtually all colonies had some patent laws in place and the U.S. Constitution itself was drafted to include, without debate, the so-called patent and copyright clause quoted above. Pursuant to this power, Congress passed the first Patent Act in 1790, which is still the foundation of today's U.S. patent system. A patent is an official government document that carries with it the intangible property rights associated with an invention. It gives its owner the exclusive right to make, sell or use the patented invention (that is, the right to practice the invention) for a number of years (for new patents, beginning on the date of issuance of the patent and ending 20 years from the date of filing of the patent application). Note that this amounts only to a right to exclude others from exploiting the invention.

The inventor already has the right to make, use or sell his invention, even without a patent, so long as his product does not infringe someone else's patent that happens to cover the product and is still in effect (that is, a patent that has not expired). He needs a patent only if he wants also to prevent others from practicing his invention. Think carefully about what this means: even though you may be able to patent your invention, if it happens to be an improvement over technology that already exists, a patent covering that technology may very well cover your invention as well and you may not be able to exploit it. So, before you market an invention, whether you decide to attempt to patent it or not, you need to be concerned about potential infringement of other patents. A patent may be viewed as a social contract with the Federal Government. (As mentioned, only federal law provides for patents, not state law.) In exchange for the grant of a patent, the inventor must disclose the invention completely and must describe it in such a way that anyone skilled in the field would be able to exploit the invention without further research or development work (the so-called enabling disclosure).

This is because the invention will become public domain after the patent expires and anyone should be able to take advantage of it and exploit it without further research and development. So, after the term of the patent expires (now 20 years from the filing date of the underlying patent application), the invention belongs to the public. The result is that competition then drives down the price of the product covered by the invention and the general public benefits from the social contract. On the other hand, the inventor, through the grant of the patent monopoly, is able to exploit the invention alone through the term of the patent. Thus, the policy underlying patent law is one of balancing the interest of the inventor, whose protection from competition for a limited time tends to promote new developments, and the interest of the public, which benefits by the dedication of the invention to the public domain after the patent expires. While a patent is in effect, no one can make, use or sell the invention in the U.S. without the inventor's permission.

So, a competitor -cannot make the invention here and sell abroad -cannot make it abroad and sell it here -but can make and sell it abroad, unless you also have patents there -but cannot make abroad and sell a product here if the process of making it is patented here patent is a legal document that represents property, similar to a deed of land that represents the conveyance of ownership rights in real estate property. Thus, it is an asset that can be transferred wholly or partially. It can be transferred outright by sale (called assignment), or by conveying only certain interests in it (called license), such as a license to make and sell the invention covered by the patent in a certain geographic area only in exchange for royalty payments. As property, a patent is an asset and it can (and should) be treated like any other asset.

That is, it can be sold, licensed, willed, gifted, mortgaged, depreciated, and taxed on sale. There are three types of U.S. patents: -Utility patents, to cover functional inventions for a limited term (20 years from date of patent application). They cover inventions that are new, useful and non obvious (detailed later). For example, a utility patent would protect the combination of structural components constituting a can opener. -Design patents, to cover ornamental inventions for 14 years from date of issuance of the patent. They cover inventions that are new, ornamental and non obvious.

For example, a design patent would protect the design of the traditional Coke bottle. -Plant patents, to cover asexually reproduced plants (that is, plants that are not reproduced through seeds) for 20 years. They cover plants that are new, distinctive and non obvious. Design patents are valuable only to protect the artistic or creative design incorporated into an article of manufacture, rather than the technical, engineering design. For example, a piece of furniture has a certain design that gives it its look. Two sofas may not look alike as a result of their different designs, but yet may share certain functional features that distinguish them from other sofas in a commercially valuable way.

For instance, they may share a novel mechanism to convert them into a bed. In such a case, a design patent could be used to protect the different look (the design) of each sofa; while the mechanism would have to be protected by obtaining a utility patent. So, if you wanted to incorporate the mechanism in a competing but different-looking sofa product, you would have to get a license from the owner of the utility patent covering the mechanism. If you wanted to make a copy of either sofa, you would also need a license from the owner of the corresponding design patent. Thus, it is clear that utility patents are much more valuable than design patents. In certain cases, though, where looks rather than functional features are just as important in the market place (furniture being one example), they provide another useful tool to protect products.

We will discuss mostly utility patents, keeping in mind that similar rules regarding the process of obtaining and enforcing a patent apply to design and plant patents as well.