PATENT LAW



Patent Law



Patent Law

Introduction

A patent is a government grant giving an inventor the right to exclude others from making, selling, or using an invention for a fixed period of time. Despite the centuries-long history of patents, the evolution of new forms of media raises challenges to the framework of patents. Although patent law has always had to adapt to new technologies, the issues surrounding computer-software patents have created considerable stresses on the system.

Patents are one of a constellation of legal devices for protecting intellectual property. Other protections include copyright and trademark. Copyright protects an “original work of authorship”: a novel, for instance, or a recipe, a song, a painting, or a photograph. Trademark protects a name or mark used to identify the source of a product and differentiate it from similar products. There are some interesting exceptions to these categories, resulting from historical accidents. Ships' hulls and architectural designs, for example, can be protected by copyright, although they seem quite dissimilar from other types of copyrightable work.

A patent is a legal monopoly, granted by an appropriate state agency to an inventor, which gives the patentee the exclusive right to make, use and sell the invention for up to 20 years. The grant of the monopoly is conditional on full public disclosure in the patent documents (the 'specification') as to how the invention works. The granting of patents is intended to provide an incentive to invest in the research and development of new technologies, and encourage the disclosure of such innovations to the public. In Europe, patent protection has been largely standardized and is governed by the 1973 European Patent Convention (EPC), which came into operation on 1 June 1978. Currently, there are 20 member states of the EPC. The legal position of biological inventions (especially deoxyribonucleic acid (DNA) sequences, genes and genetically modified organisms (GMOs)) in Europe was recently clarified by the European Union's Biotechnology Directive, which was adopted after a decade of heated debate, on 6 July 1998. While there are important differences, the position in America, under the Patents Act of 1952 (35 USC), as amended, is similar to that in Europe.

Although some institutions involved in mapping the human genome, such as Merck and the Wellcome Trust, have preferred to dedicate the gene sequence data they have discovered to the public via databases, in the last decade thousands of patent applications have been made for DNA sequences and genes, as well as for genetically modified plants and animals. Even though many of these applications have survived the examination process conducted by the European and national Patent Offices, so as to result in the grant of patents, the validity of many of these grants is unclear and may come to be challenged. As with all inventions, for a biological invention to be patentable it must consist of appropriate subject matter, and be novel and inventive (or as it is sometimes said, the invention must be 'nonobvious'). (In the United States equivalent requirements of novelty, nonobviousness and utility ...