A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights.
124-412: This is a list of legal terms relating to patents and patent law . A patent is not a right to practice or use the invention claimed therein, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or their successor in rights in exchange to a public disclosure of the invention. The reply of an applicant to an office action must be made within
248-469: A decree by which new and inventive devices had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries. The English patent system evolved from its early medieval origins into
372-403: A search performed by an International Searching Authority (ISA), accompanied by a written opinion regarding the patentability of the invention, which is the subject of the application. It is optionally followed by a preliminary examination , performed by an International Preliminary Examining Authority (IPEA). Finally, the relevant national or regional authorities administer matters related to
496-527: A PCT application may be published earlier if the applicant requests early publication. Secondly, if 18 months after the priority date, the PCT application designates only the United States, then the application is not automatically published. From the publication of the PCT application until 28 months after the priority date, any third party may file observations regarding the novelty and inventive step of
620-453: A company helping another company to create a patented product or selling the patented product which is created by another company. There is also inducement to infringement, which is when a party induces or assists another party in violating a patent. An example of this would be a company paying another party to create a patented product in order to reduce their competitor's market share. This is important when it comes to gray market goods, which
744-443: A competent patent office, called a Receiving Office (RO). This application is called an international application or simply a PCT application since it neither results in an international patent nor in a PCT patent, neither of which exists. The PCT application needs to be filed in one language only, although a translation of the application may be required for the international search and the international publication, depending on
868-495: A country represented by another IP office. A declaration sought from a court that a product to be launched was old or obvious at a particular date, so that the product cannot be affected by a later granted patent, which would also either lack novelty or inventive step. In United States patent law , an equitable estoppel barring a patent's seller (assignor) from attacking the patent's validity if they are found to have infringed that patent later. In outdated German patent law ,
992-503: A court that one's actions do not infringe a particular patent. An action for a declaration of non-infringement may be brought before a court as a preventive measure prior to being sued by a patent proprietor, for example if an infringement suit is believed to be imminent. A practice consisting in "obtaining patents to stake [one's] claim to an area of technology in hopes of preventing other companies from suing them." See also defensive patent aggregation . A publication intended to prevent
1116-482: A court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention. The protection of one single invention by two patents, in the same jurisdiction, usually owned by the same proprietor. At the European Patent Office, the application documents serving as
1240-548: A demand". However, "[for] cases where the written opinion of the ISA contains negative findings, the savings in the applicant's/agent's time and, where applicable, agent's fees, required by multiple responses to national offices may well justify the use of the Chapter II procedure." The demand for an international preliminary examination also gives the applicant an opportunity to amend the claims, description and drawings. Otherwise,
1364-415: A national or resident of a contracting state to the PCT needs, however, "only to be complied with at the time of filing the international application. Later changes in the applicant's country of residence (or nationality) ... have no consequence on the validity of the international application itself." In most member states, the applicant or at least one of the applicants of the application is required to be
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#17327733275251488-540: A national or resident of the state of the receiving office where the application is filed. Applicants from any contracting state may file a PCT application at the International Bureau in Geneva, subject to national security provisions. Upon filing of the PCT application, all contracting states are automatically designated. Subject to reservations made by any contracting state, a PCT application fulfilling
1612-445: A negative technical feature. In U.S. patent law, a form of patent infringement liability that occurs when multiple actors are involved in carrying out the claimed infringement of a method patent and no single accused infringer has performed all of the steps of the method. A type of patent application which contains matter from a previously-filed application. Also referred to simply as "divisional application". A legal rule that allows
1736-403: A non-obvious inventive step. A patent is requested by filing a written application at the relevant patent office. The person or company filing the application is referred to as "the applicant". The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide sufficient detail for a person skilled in the art (i.e.,
1860-612: A patent claim vis-à-vis an allegedly infringing product or method. The process of interpreting or explaining the meaning of the terms in a patent claim, especially in the context of patent infringement. A search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. These searches and opinions are also called freedom-to-operate searches and opinions . See Patent infringement . A legal concept used notably when assessing whether an invention involves an inventive step , whether
1984-417: A patent covers or the "scope of protection". After filing, an application is often referred to as " patent pending ". While this term does not confer legal protection, and a patent cannot be enforced until granted, it serves to provide warning to potential infringers that if the patent is issued, they may be liable for damages. Once filed, a patent application is "prosecuted" . A patent examiner reviews
2108-408: A patent. In the United States, however, only the inventor(s) may apply for a patent, although it may be assigned to a corporate entity subsequently and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of
2232-504: A patentable invention), that does not infringe upon an issued patent. Also used as a noun. Under the Patent Cooperation Treaty (PCT), a national patent office of or acting for a State designated by the applicant under Chapter I of the PCT. See also "Chapter I" above. In a claim , words identifying subject-matter that is not claimed or, by extension, an amendment consisting in limiting a claim by introducing therein
2356-461: A prescribed time limit. If no reply is received within the time period, the application may be considered, depending on the jurisdiction, as abandoned or deemed to be withdrawn, and, therefore, no longer pending. A patent is "allowed" when the patent office examiners have determined that the patent application meets the necessary criteria of novelty, non-obviousness, feasibility, and usefulness. The applicants are notified of this certification, and that
2480-511: A prohibited act that is protected against by the patent. There is also the Doctrine of Equivalents. This doctrine protects from someone creating a product that is basically, by all rights, the same product that is protected with just a few modifications. In some countries, like the United States, there is liability for another two forms of infringement. One is contributory infringement, which is participating in another's infringement. This could be
2604-527: A resident of a given country/jurisdiction with a patent office of another country/jurisdiction. For example, a patent application filed by an applicant residing in France with the USPTO is considered an “ application abroad” from the perspective of France. “Application abroad” is a concept similar to “non-resident application”, which describes a patent application received by an IP office from an applicant residing in
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#17327733275252728-400: A right to make or use or sell an invention. Rather, a patent provides, from a legal standpoint, the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent , which is usually 20 years from the filing date subject to the payment of maintenance fees . From an economic and practical standpoint however, a patent
2852-455: A series of patent specifications provides a consistent picture that a particular technical procedure was generally known and belonged to the common general knowledge in the art at the relevant date". Using compulsory licenses, a government may force a patent proprietor to grant use to the state or others. Usually, the holder does receive some royalties , either set by law or determined through some form of arbitration . Under United States law,
2976-570: A specific property right. Under the World Trade Organization 's (WTO) TRIPS Agreement , patents should be available in WTO member states for any invention, in all fields of technology , provided they are new , involve an inventive step , and are capable of industrial application . Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that
3100-513: A third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a national basis. The making of an item in China, for example, that would infringe a US patent, would not constitute infringement under US patent law unless the item were imported into the US. Infringement includes literal infringement of a patent, meaning they are performing
3224-502: A translation of the IPRP Chapter I into English. The international search report can help the applicant decide whether it would be worthwhile seeking national protection, and if so, in how many countries, as fees and other expenses, including translation costs, must be paid to enter the national phase in each country. Yet another advantage of filing a PCT application under the PCT is that many national patent authorities will rely on
3348-429: A type of continuing application in which the applicant adds subject-matter not disclosed in the parent application, but repeats substantial portion of the parent's specification, and shares at least one inventor with the parent application. See continuing patent application . In United States law, an active patent application, prior to final action, may give rise to additional applications for additional claims carrying
3472-506: A unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30-month priority for applications as opposed to the standard 12 the Paris Convention granted. A patent application filed under the PCT is called an international application, or PCT application. The steps for PCT applications are as follows: 1. Filing the PCT patent application 2. Examination during
3596-477: A yearly basis. Some countries or regional patent offices (e.g. the European Patent Office ) also require annual renewal fees to be paid for a patent application before it is granted. In the US, patent maintenance fees are due on 3.5, 7.5 and 11.5 anniversaries of the patent issuance. Only ca. 50% of issued US patents are maintained full term. Large corporations tend to pay maintenance fees through
3720-420: Is a request by a person or company to the competent authority (usually a patent office) to grant them a patent. By extension, a patent application also refers to the content of the document which that person or company filed to initiate the application process. This document usually contains a description of the invention and at least one claim used to define the sought scope of protection. An application filed by
3844-402: Is an international patent law treaty , concluded in 1970. It provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application , or PCT application . A single filing of a PCT application is made with a Receiving Office (RO) in one language. It then results in
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3968-597: Is better and perhaps more precisely regarded as conferring upon its proprietor "a right to try to exclude by asserting the patent in court", for many granted patents turn out to be invalid once their proprietors attempt to assert them in court. A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. Like any other property right, it may be sold, licensed, mortgaged , assigned or transferred, given away, or simply abandoned. A patent, being an exclusionary right, does not necessarily give
4092-400: Is conducted by an authorized International Preliminary Examination Authority (IPEA) and its objective is "to formulate a preliminary and non-binding opinion on the questions whether the claimed invention appears to be novel, to involve an inventive step (to be non-obvious), and to be industrially applicable". This results in an International Preliminary Examination Report (IPER). Since 2004,
4216-509: Is conducted in this case. The demand indicates the Contracting State or States in which the applicant intends to use the results of the international preliminary examination ("elected States"). A noun phrase defining the extent of the protection conferred by a patent, or the extent of protection sought in a patent application. A chart often used in the context of patent litigation for analyzing and presenting information regarding
4340-449: Is even more pronounced when the number of patent applications is normalized by the country's population each year, or when the country of origin rather than country of filing is used. For the US, the population-normalized peak in patenting occurred in 1915, and the number of subsequent patents induced per patent has been mostly declining since 1926. A study of 4,512 patents obtained by Stanford University between 1970 and 2020 showed that
4464-726: Is evidence that some form of patent rights was recognized in Ancient Greece in the city of Sybaris , the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. However, recent historical research has suggested that the 1474 Statute was inspired by laws in the Kingdom of Jerusalem that granted monopolies to developers of novel silk-making techniques. Patents were systematically granted in Venice as of 1474, where they issued
4588-577: Is initially confidential, but unless it is superseded by an International Preliminary Examination Report (see optional examination, below), it is made available in the form of an International Preliminary Report on Patentability (Chapter I of the Patent Cooperation Treaty, or IPRP Chapter I), within 30 months of the filing date or a priority date, if any. If the ISR is not in English, it is translated into English for publication. A designated Office may require
4712-414: Is often referred to as a form of intellectual property right, an expression which is also used to refer to trademarks and copyrights , and which has proponents and detractors (see also Intellectual property § The term "intellectual property" ). Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in
4836-623: Is patentable. Patentable material must be synthetic, meaning that anything natural cannot be patented. For example, minerals, materials, genes, facts, organisms, and biological processes cannot be patented, but if someone were to apply an inventive, non-obvious, step to them to synthesize something new, the result could be patentable. That includes genetically engineered strains of bacteria, as was decided in Diamond v. Chakrabarty. Patentability also depends on public policy and ethical standards. Additionally, patentable materials must be novel, useful, and
4960-541: Is published by the International Bureau at the WIPO , based in Geneva , Switzerland , in one of the ten "languages of publication": Arabic , Chinese, English, French, German, Japanese, Korean , Portuguese , Russian, and Spanish. The publication normally takes place promptly after 18 months from the filing date or, if a priority is claimed, from the earliest priority date. There are two exceptions to this rule, however. First,
5084-436: Is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an opposition proceeding between grant and issuance, or post-issuance. Once granted the patent is subject in most countries to renewal fees to keep the patent in force. These fees are generally payable on
Glossary of patent law terms - Misplaced Pages Continue
5208-547: Is the Paris Convention for the Protection of Industrial Property , initially signed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The Paris Convention set a minimum patent protection of 20 years, but
5332-463: Is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. When a patent application is published, the invention disclosed in the application becomes prior art and enters the public domain (if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally becoming prior art against anyone (including
5456-401: Is to reduce the likelihood of seeing new prior art being cited in the subsequent national phases. A supplementary international search is said to allow applicants to obtain an additional search report "taking into account the growing linguistic diversity of the prior art being found". In 2009 and 2010, the demand for supplementary international searches was relatively low. The PCT application
5580-434: Is when a patent owner sells a product in country A, wherein they have the product patented, then another party buys and sells it, without the owner's permission, in country B, wherein the owner also has a patent for the product. With either national or regional exhaustion being the law the in country B, the owner may still be able to enforce their patent rights; however, if country B has a policy of international exhaustion, then
5704-464: The House of Lords on 31 October 1996. See research exemption . Under German patent law, a procedure consisting in deriving a utility model (German: Gebrauchsmuster ) from a pending patent application. Also called "derivation". The corresponding German term is Abzweigung . The practice of a patent holding company buying a patent, offering a license to its members and then selling or donating
5828-707: The Japan Patent Office (JPO) (20.7%) and the Korean Intellectual Property Office (KIPO) (14.8%). The ISA must establish the ISR and its accompanying written within "three months from the receipt of the search copy by the International Searching Authority, or nine months from the priority date , whichever time limit expires later." The ISR is published together with the PCT application (or as soon as possible afterwards). The written opinion
5952-589: The Nagoya Protocol to the Convention on Biological Diversity and its system of Access and Benefit-Sharing . Representatives of Indigenous peoples view the GRATK Treaty as a "first step towards guaranteeing just and transparent access to these resources." Before filing for an application, which must be paid for whether a patent is granted or not, a person will want to ensure that their material
6076-641: The Patent Cooperation Treaty (PCT). A claim comprising all the features of another claim. Proceedings under current U.S. patent law (i.e., since the March 16, 2013 effective date of the Leahy–Smith America Invents Act ) to decide who is entitled to the grant of a patent for an invention. This replaced the former interference proceeding . The act of developing an alternative apparatus or method (which may in itself also be
6200-475: The U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts". The first patent under the Act was granted on July 31, 1790, to Samuel Hopkins of Vermont for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision was passed. The 1836 law instituted a significantly more rigorous application process, including
6324-465: The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty) mandating patent disclosure requirements for patents based on genetic resources and associated traditional knowledge from being granted. The Treaty contemplates revocation for patents incorrectly filed. The treaty, and in particular its planned extension, is seen as complementing
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#17327733275256448-637: The World Trade Organization (WTO) being particularly active in this area. The TRIPS Agreement has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPS agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice. Internationally, there are international treaty procedures, such as
6572-402: The claimed subject matter. The search results in an international search report (ISR), together with a written opinion regarding patentability . The ISA(s) that the applicant can choose depends on the receiving Office with which the applicant filed the international application. In 2013, the most selected ISAs were the European Patent Office (EPO) (with 37.7% of all ISRs issued), followed by
6696-413: The disclosure of the invention is sufficiently clear and complete for a skilled person in the art to be able to carry out the invention, and whether the subject-matter of a prior art disclosure is enabling. The common general knowledge "is the common knowledge in the field to which the invention relates." The information "must be generally known and generally regarded as a good basis for further action by
6820-456: The term of protection available should be a minimum of twenty years. Some countries have other patent-like forms of intellectual property , such as utility models , which have a shorter monopoly period. The word patent originates from the Latin patere , which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent , which
6944-575: The 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne , patent applications were required to supply a complete specification of the principles of operation of the invention for public access. Legal battles around the 1796 patent taken out by James Watt for his steam engine , established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented. The English legal system became
7068-505: The Federal Patent Court ( Bundespatentgericht ). See also German patent law#Litigation . U.K. law concept according to which, if "the extent of the monopoly claimed [in a patent] exceeds the technical contribution to the art made by the invention as described in the specification", the patent may be revoked on the ground of insufficiency of disclosure . The concept stems from the decision Biogen v. Medeva , issued by
7192-537: The IPER bears the title " international preliminary report on patentability (Chapter II of the Patent Cooperation Treaty) " (commonly abbreviated " IPRP Chapter II "). The filing of a demand for international preliminary examination, which must be done within a time limit, is subject to the payment of a "handling fee" for the benefit of the International Bureau and a "preliminary examination fee" for
7316-558: The PCT. The main advantages of the PCT procedure, also referred to as the international procedure, are that (a) it allows the filing of a single patent application, replacing the need for filing a multiplicity of separate applications, with a procedure taking place in a predictable way; (b) the international search and, optionally, the international preliminary examination "give applicants a better basis for deciding whether and in which countries to further pursue their applications", thus allowing "for better management of patent portfolios and
7440-541: The Patent Cooperation Treaty was held in Washington from 25 May to 19 June 1970. The Patent Cooperation Treaty was signed on the last day of the conference on 19 June 1970. The Treaty entered into force on 24 January 1978, initially with 18 contracting states. The first international applications were filed on 1 June 1978. The Treaty was subsequently amended in 1979, and modified in 1984 and 2001. As of December 2022, PCT membership consisted of 157 contracting states. It
7564-835: The UK, substantive patent law is contained in the Patents Act 1977 as amended. In the United States, the Constitution empowers Congress to make laws to "promote the Progress of Science and useful Arts ...". The laws Congress passed are codified in Title 35 of the United States Code and created the United States Patent and Trademark Office . There is a trend towards global harmonization of patent laws, with
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#17327733275257688-545: The US, plant breeders' rights are sometimes called plant patents , and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents . The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular types of patents for inventions include biological patents , business method patents , chemical patents and software patents . Although there
7812-470: The applicant can only modify the claims once within two months from the time of the ISR has been transmitted. There are many advantages, such as cost and effort savings ("as well as possibly shortened pendency/faster grants" ), in receiving a favourable IPRP Chapter II, i.e. a favourable report following an international preliminary examination. For instance, national offices "with a smaller examining staff and those without examiners tend to rely more heavily on
7936-445: The applicant) who might seek patent protection for the invention in those countries. Commonly, a nation or a group of nations forms a patent office with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts. The authority for patent statutes in different countries varies. In
8060-430: The avoidance of unnecessary expenses"; and (c) it allows the deferral of national processing. A PCT application (also called "international patent application") has two phases. The first phase is the international phase in which patent protection is pending under a single patent application filed with the patent office of a contracting state of the PCT. The second phase is the national and regional phase which follows
8184-461: The basis for the publication of the granted patent. Patent The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the scope of protection that is being sought. A patent may include many claims, each of which defines
8308-467: The benefit of the IPEA. The cost of filing a demand varies depending on the IPEA used by the applicant. The IPEA(s) that the applicant can choose however depends on the receiving Office with which the applicant filed the PCT application (the same applies to ISAs). If the written opinion established by the International Searching Authority (ISA) is positive, "there is little value to be obtained from filing
8432-530: The benefits of using each other's patented inventions. Freedom Licenses like the Apache 2.0 License are a hybrid of copyright/trademark/patent license/contract due to the bundling nature of the three intellectual properties in one central license. This can make it difficult to enforce because patent licenses cannot be granted this way under copyright and would have to be considered a contract. In most countries, both natural persons and corporate entities may apply for
8556-426: The bulk of those engaged in that art before it becomes part of their common stock of knowledge relating to the art, and so part of the common general knowledge." Regarding the inventive step assessment, "[if] information is part of the common general knowledge then it forms part of the stock of knowledge which will inform and guide the skilled person's approach to the problem from the outset. It may, for example, affect
8680-400: The course of the 20th and 21st centuries, however, disparity is still prevalent. In the UK, for example, only 8% of inventors were female as of 2015. This can partly be attributed to historical barriers for women to obtain patents, as well as to the fact that women are underrepresented in traditionally "patent-intensive" sectors, particularly STEM sectors. Marcowitz-Bitton et al. argue that
8804-489: The designated offices, which are free to require a translation of the informal comments. The PCT does not make any specific provision concerning the types of invention which may be the subject of an international application. Rules 39 and 67 permit International Searching and Preliminary Examining Authorities not to carry out search and examination on certain types of subject matter, such as scientific and mathematical theories, methods of doing business and computer programs to
8928-654: The establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted. In the US, married women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 did refer to "she", married women were unable to own property in their own name and were also prohibited from rights to their own income, including income from anything they invented. This historical gender gap has lessened over
9052-413: The examination of application (if provided by national law) and issuance of patent. A PCT application does not itself result in the grant of a patent, since there is no such thing as an "international patent", and the grant of patent is a prerogative of each national or regional authority. In other words, a PCT application, which establishes a filing date in all contracting states, must be followed up with
9176-437: The express request of the applicant, even before publication of the international application. If the entry into national or regional phase is not performed within the prescribed time limit, the PCT application generally ceases to have the effect of a national or regional application. The millionth PCT application was filed at the end of 2004, whereas the two millionth application was filed in 2011. The first ever decline in
9300-681: The extent that the Authority is not equipped to carry out a search or international preliminary examination concerning such programs. However, this does not affect the issue of whether the invention is patentable under the laws of the contracting states, as "[n]othing in [the PCT] and the Regulations is intended to be construed as prescribing anything that would limit the freedom of each contracting state to prescribe such substantive conditions of patentability as it desires." Finally, at 30 months from
9424-519: The filing date of the PCT application or from the earliest priority date of the application if a priority is claimed, the international phase ends and the PCT application enters in national and regional phase. However, any national law may fix time limits which expire later than 30 months. For instance, it is possible to enter the European regional phase at 31 months from the earliest priority date. National and regional phases can also be started earlier on
9548-409: The filing of a demand for international preliminary examination is to file informal comments in response to the written opinion established by the ISA. These informal comments are not published. The informal comments should be submitted to the International Bureau (IB), and not to the ISA or the IPEA. They are kept in the file of the PCT application and, in the case where no demand is filed, forwarded to
9672-647: The first modern patent system that recognised intellectual property in order to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish. By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies . After public outcry, King James I of England (VI of Scotland ) was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This
9796-630: The foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia . In the Thirteen Colonies , inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt. The modern French patent system
9920-404: The full term, while small companies are more likely to abandon their patents earlier, even though the due fees are ca. 5 times lower for small businesses (microentities). The costs of preparing and filing a patent application, prosecuting it until grant and maintaining the patent vary from one jurisdiction to another, and may also be dependent upon the type and complexity of the invention, and on
10044-510: The gender gap in patents is also a result of internal bias within the patent system. The number of patent applications filed each year has been growing for most countries although not smoothly, and jumps in activity are often observed due to changes in local laws. The high number of patent families for Spain in the 1800s is related to the superior preservation and cataloguing of the data by Spanish Patent and Trademark Office compared to other countries (see 1836 U.S. Patent Office fire ). The US
10168-488: The grant of a patent to a competitor by placing information in the public domain. An implicit cross license where the licensor can terminate a patent license if the licensee turns around and sues the licensor for infringing a patent. A letter sent to a company "seeking royalties and threatening legal action for patent infringement." Also called a "threat letter". A request to subject an international application to an international preliminary examination under Chapter II of
10292-502: The international phase 3. Examination during the national phase. Alongside these international agreements for patents there was the Patent Law Treaty (PLT). This treaty standardized the filing date requirements, standardized the application and forms, allows for electronic communication and filing, and avoids unintentional loss of rights, and simplifies patent office procedures. Sometimes, nations grant others, other than
10416-412: The international phase in which rights are continued by filing necessary documents with the patent offices of separate contracting states of the PCT. A PCT application, as such, is not an actual request that a patent be granted, and it is not converted into one unless and until it enters the "national phase". The first step of the procedure consists in filing an international (patent) application with
10540-461: The international search report (although the PCT does not obligate them to do so) instead of performing a prior art search themselves, and the applicant may thus be able to save search fees. In addition to the compulsory international search, at least one optional supplementary international search may also be carried out by participating International Searching Authorities, upon request by the applicant and payment of corresponding fees. The purpose
10664-415: The invention be exploited in the jurisdiction it covers. Consequences of not working an invention vary from one country to another, ranging from revocation of the patent rights to the awarding of a compulsory license awarded by the courts to a party wishing to exploit a patented invention. The patentee has the opportunity to challenge the revocation or license, but is usually required to provide evidence that
10788-504: The invention. The observations may be submitted anonymously, and no fee is due for filing such observations. An international application may also be withdrawn to prevent its publication. To do so, the International Bureau (IB) "must receive the notice of withdrawal of the application before the corresponding technical preparations for publication are completed". An international preliminary examination may optionally be requested ("demanded"). The international preliminary examination
10912-496: The inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company. Applications by artificial intelligence systems, such as DABUS , have been rejected in the US, the UK, and at the European Patent Office on the grounds they are not natural persons. The inventors, their successors or their assignees become
11036-559: The language of filing and the competent or chosen International Searching Authority. At least one applicant (either a physical or legal person ) must be a national or resident of a contracting state to the PCT; otherwise, no PCT filing date is accorded. If a PCT filing date is erroneously accorded, the Receiving Office may, within four months from the filing date, declare that the application should be considered withdrawn. The requirement that at least one applicant must be
11160-437: The licensee the right to make, use, sell, or import the claimed invention, usually in return for a royalty or other compensation. It is common for companies engaged in complex technical fields to enter into multiple license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under cross-licensing agreements in order to share
11284-593: The most significant aspect of the convention is the provision of the right to claim priority : filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides
11408-439: The number of filed PCT applications in over 30 years occurred in 2009, with a 4.5 percent drop compared to 2008. In 2013, about 205,000 international applications were filed, making 2013 the first year during which more than 200,000 PCT applications were filed in one year. The 3 millionth PCT application was published on 2 February 2017. It was predicted that by the end of 2020, the total number of PCT applications filed since
11532-420: The patent after a certain period of time. In the Patent Cooperation Treaty (PCT), "Chapter I" refers to the prosecution procedure when no demand under Article 31 PCT is made. The states selected under Chapter I by the applicant are called "designated States". In the PCT, "Chapter II" refers to the prosecution procedure when a demand under Article 31 PCT is made. An international preliminary examination
11656-399: The patent application to determine if it meets the patentability requirements of that country. If the application does not comply, objections are communicated to the applicant or their patent agent or attorney through an Office action , to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection
11780-429: The patent office and have been filed by the same applicant. A defense in an infringement action, consisting in the defendant arguing that the asserted patent is invalid or partially invalid, for example because its claimed subject-matter lacks novelty or is obvious in view of the prior art. A system for exchanging priority documents electronically. Also referred to as "WIPO DAS". A declaration sought or obtained from
11904-405: The patent office is ready to grant the patent once certain fees are paid and paperwork filed by the inventors or assignees. The term is used in the U.S. and some other countries. Few allowed patents are not subsequently granted. A fee to be paid to maintain a patent or a patent application in force. Also called "maintenance fee" or "renewal fee". An application for a patent, or patent application,
12028-400: The patent owner seeks monetary compensation ( damages ) for past infringement, and seeks an injunction that prohibits the defendant from engaging in future acts of infringement, or seeks either damages or injunction. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (In many jurisdictions
12152-488: The patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent. If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse. Some countries have "working provisions" that require
12276-427: The patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country. Patents can generally only be enforced through civil lawsuits (for example, for a US patent, by an action for patent infringement in a United States federal district court), although some countries (such as France and Austria ) have criminal penalties for wanton infringement. Typically,
12400-494: The patent owner, permissions to create a patented product based on different situations that align with public policy or public interest. These may include compulsory licenses, scientific research, and in transit in country. After two decades of drafting, the WIPO 's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore moved to a Diplomatic Conference in May 2024 and adopted
12524-562: The patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not patentable subject matter at all; the claimed subject matter was actually not new, or was obvious to the person skilled in the art , at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons. Patent infringement occurs when
12648-679: The permission of the other proprietor(s). The ability to assign ownership rights increases the liquidity of a patent as property. Inventors can obtain patents and then sell them to third parties. The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves. The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are granted by national or regional patent offices, i.e. national or regional administrative authorities. A given patent
12772-404: The priority date of the original application. With the move to published applications, this has become a common way of producing submarine patents . Under European patent practice, a legal approach, now abandoned by the European Patent Office (EPO), for assessing whether an invention was patentable. The approach consisted in establishing whether the "contribution to the art" made by the invention
12896-690: The procedures under the European Patent Convention (EPC) [constituting the European Patent Organisation (EPOrg)], that centralize some portion of the filing and examination procedure. Similar arrangements exist among the member states of ARIPO and OAPI , the analogous treaties among African countries, and the nine CIS member states that have formed the Eurasian Patent Organization . A key international convention relating to patents
13020-443: The proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without
13144-400: The reasonable requirements of the public have been met by the working of invention. In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called opposition proceedings . It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that
13268-437: The relevant area of technology) to make and use the invention. In some countries there are requirements for providing specific information such as the usefulness of the invention, the best mode of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided. The application also includes one or more claims that define what
13392-468: The relevant country. Although an infringer is generally free to rely on any available ground of invalidity (such as a prior publication , for example), some countries have sanctions to prevent the same validity questions being relitigated. An example is the UK Certificate of contested validity . Patent licensing agreements are contracts in which the patent owner (the licensor) agrees to grant
13516-408: The requirements of the treaty and accorded a PCT filing date has the effect of a regular national application in each designated state as of the PCT filing date, which date is considered to be the actual filing date in each designated State. A search or "international search" is then made by an authorized international searching authority (ISA) to find the most relevant prior art documents regarding
13640-483: The results in the IPRP Chapter II". When an international preliminary examination is demanded, the contracting states for which the examination is demanded are called elected Offices (under Chapter II ), otherwise they are called designated Offices (under Chapter I ). The election of a contracting state correspondingly means electing it when demanding (requesting) the examination. An alternative to
13764-443: The scope of the patent may not be limited to what is literally stated in the claims, for example due to the doctrine of equivalents .) An accused infringer has the right to challenge the validity of the patent allegedly being infringed in a counterclaim . A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for patentability in
13888-490: The second reading, or publication, of a patent application. A form of inventor's recognition formerly available in the Soviet Union and a number of Socialist countries. Also called "inventor's certificate". Legal system in which patent infringement and patent validity are decided upon by different courts. The German legal system is bifurcated as patent infringement is dealt with by district courts and patent validity by
14012-569: The step of entering into national or regional phases to proceed towards grant of one or more patents. The PCT procedure essentially leads to a standard national or regional patent application, which may be granted or rejected according to applicable law, in each jurisdiction in which a patent is desired. The contracting states, the states which are parties to the PCT, constitute the International Patent Cooperation Union . The Washington Diplomatic Conference on
14136-439: The steps it will be obvious for him to take, including the nature and extent of any literature search." Under European practice, "the common general knowledge of the person skilled in the art is, as a general rule, established on the basis of encyclopaedias , textbooks and the like". Exceptionally however, common general knowledge may also be established on the basis of the content of patent specifications "and in particular when
14260-473: The system became operational in 1978 would reach 4 million. Applications in 2018 were filed by users from 127 countries. The United States of America continued to be the largest source of applications, followed by China, Japan, Germany, and the Republic of Korea. Applications from China have grown at the fastest rate, rising to 21.1% of all applications in 2018. The top individual filer of applications in 2018
14384-553: The type of patent. The European Patent Office estimated in 2005 that the average cost of obtaining a European patent (via a Euro-direct application, i.e. not based on a PCT application) and maintaining the patent for a 10-year term was around €32,000. Since the London Agreement entered into force on May 1, 2008, this estimation is however no longer up-to-date, since fewer translations are required. Patent Cooperation Treaty The Patent Cooperation Treaty ( PCT )
14508-431: The university's patenting activity plateaued in the 2010s. Incidentally, only 20% of Stanford patents in that dataset produced a positive net income for the university, while the rest was a net loss. Similar declines have been noted not only for the number of patents, but also for other measures of innovation output. Several hypotheses have been proposed as explanations for the observed decline: A patent does not give
14632-619: Was Huawei Technologies Co. Ltd. , which filed 5,405 applications, followed by Mitsubishi Electric with 2,812 applications, Intel with 2,499 applications, Qualcomm with 2,404 applications, and ZTE with 2,080 applications. Countries located in Asia were the source of 50.5% of all PCT applications in 2018. Applicants in Europe (24.5%) and North America (23.1%) were the other major sources of filings. The combined share for Africa, Latin America and
14756-446: Was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents , which were land grants by early state governments in the US, and printing patents , a precursor of modern copyright . In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent
14880-472: Was created during the Revolution in 1791. Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844 – patent cost was lowered and importation patents were abolished. The first Patent Act of
15004-530: Was expected that by the end of 2020 the total number of PCT applications filed since the system became operational in 1978 would reach 4 million. Any contracting state to the Paris Convention for the Protection of Industrial Property can become a member of the PCT. A majority of the world's countries are parties to the PCT, including all of the major industrialized countries (with a few exceptions, notably Argentina , Uruguay , Venezuela and Pakistan ). As of 26 December 2022, there were 157 contracting states to
15128-612: Was incorporated into the Statute of Monopolies (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere. Important developments in patent law emerged during
15252-531: Was only in a field excluded from patentability by Article 52(2) and (3) EPC and, if so, the application could be refused. The EPO now applies the sometimes named "any hardware" or "any technical means" approach, notably formulated in EPO Board of Appeal decisions T 258/03 (Auction Method/Hitachi) and T 424/03 (Microsoft). A form of indirect infringement . Two or more patent applications are said to be co-pending, or copending, if they are both pending before
15376-596: Was the World's leader in terms of patent families filed between 1900 and 1966, when Japan took over. Since 2007 PR China leads. However, in most technologically advanced countries (see, for example, France, Italy, Japan, Spain, Sweden, the UK in the figure on the right, as well as in Poland ), the total (i.e. regardless of the priority/inventors' country) number of patent families filed there have been declining in absolute numbers since c. 1970s –1980s. The decline
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