Patent Law

Patent Law

Introduction

Patent law is a specific area of law that encompasses the legal regulation, jurisprudence, and enforcement of specific intellectual property rights known as patent rights. (German 2006) A patent is a government issued right granted to individuals or groups that protects their original inventions from being made, used, or sold by others without their permission for a set period of time. While patents can be legally obtained without the use of an attorney, an attorney who specializes in patent law can help ensure that their client's patent is enforceable by law. Because patent law pertains to intellectual property, which is like any other property in that it can be legally sold, exchanged, traded (MacLeod 2002), or abandoned, the finer points of patent law are frequently amended as technology changes. This is another reason why an attorney specializing in patent law is of significant use to those seeking a patent.

Discussion

The last 12 months have proven interesting for a number of issues in the area of patent litigation in the United Kingdom. Following previous decisions in patent cases (Amgen, which revised the law on claims construction, and Sabaf, which clarified the test for obviousness), (History of Copyright 2006) the House of Lords has continued to put its stamp on patent law. In Sython BV v SmithKline Beecham plc the court considered the proper test to determine whether a piece of prior art contained an 'enabling disclosure' sufficient to constitute a ground of attack based on anticipation. The issue of damages, (Anthon 2008) and what constitutes a proper heads of damages to be recovered, is always topical and an area where guidance from the courts is welcome. In Ultraframe (UK) Limited v Eurocell Building Plastics Limited the High Court provided a detailed analysis of most of the heads of damages which may arise in a patent infringement case, and demonstrated that English courts are prepared to recognise and deal with novel theories on damages. In addition, the Patent Office has, under the fast-track opinion service introduced by the Patents Act 2004, released its first set of opinions on the infringement and invalidity of patents. (German 2006) These opinions show a limited interest by the stakeholders in this unusual new system, but also highlight some of the problems that can arise from this parallel system.

Enabling disclosure and anticipation

The concept of an 'enabling disclosure' is not expressly stated in English statute, but is primarily a common law abstraction. Until the recent Sython Case, the 1991 House of Lords decision in Asahi's Application was the leading judgment on what amounted to a clear and complete disclosure sufficient to constitute anticipation. (Schippel 2006) Asahi's Application provided that there must be the same 'enabling disclosure' in the patent specification as that which justifies a claim to priority and which may amount to anticipation, (MacLeod 2002) and that a novelty-destroying disclosure was enabling if what was disclosed were sufficient to enable an ordinary skilled person in the art to perform the invention described in the prior ...