02. Detailed Overview of PATENTS BELAJAR DARI : Tutor: Moh. Isrok, SH.,CN.,MH Sentra HKI Univ. Muhammadiyah Malang

A patent is an award of a limited monopoly from a government for an invention. In the past, governments awarded patents for almost any good or service, whether or not an invention was involved. For example, a king might bestow a patent on salt to a trusted ally. In modern times governments have reduced the scope of patents to protect inventions only.

What is a Patent?

A patent generally grants the patent owner the exclusive right to control who makes, uses, sells, offers for sale and/or imports any product or technology protected by the patent’s claims. Patent claims are sets of sentences, typically appearing at the end of the patent, that describe the invention being protected. In order to obtain a patent, the patent’s claims must typically describe an invention that is new, useful and non-obvious in view of the “prior art.” Prior art is a technical term that generally refers to all the public knowledge and inventions that existed before the patent application’s filing.

Some countries also provide patents or patent-like legal instruments for other types of inventions. For example, in some countries designs may be protected as “design patents” (e.g. the US). In other countries designs are protected under industrial design registration systems (e.g. Belgium). In either case the protection is for a new, original and ornamental design for an article of manufacture, not the functionality.

Some countries offer protection for inventions by means of “utility model registrations” which are also known as “petty patents” or “utility innovations.” The requirements for the registration of utility models are typically less stringent than the requirements for obtaining a patent of invention. Conversely, the breadth of protection afforded a utility model is not usually as strong as that provided by a patent of invention.

In practice, protection for utility models is typically sought for innovations of an incremental nature that might not satisfy the criteria for patents of invention, e.g. inability to demonstrate inventive step. The term of protection for utility models is significantly shorter than for patents. Some patent offices do not examine utility model applications substantively prior to registration. Consequently, the precise nature of the right granted will be in question until a dispute arises between the owner and another party. In some countries, utility model protection can only be obtained for certain fields of technology and only for products but not for processes.

WHAT CAN BE THE SUBJECT OF A PATENT?

The subject matter of a patent refers to what can be patented The subject matter of a patent refers to what can be patented. In some countries, virtually any invention can be patented. Other countries have somewhat more restrictive definitions of patentable subject matter. In both cases, a wide variety of things can be patented as long as they are new, useful and non-obvious

a. Mechanical Devices and Articles of Manufacture Patent laws protect mechanical devices and articles of manufacture. These are the traditional inventions of patent law. Consequently, the publicly-available prior art in these fields goes back about as far as such art could possibly go. For example, a modern patent applicant seeking to protect an invention related to specialized hockey skates should not be surprised to find that an issued patent from the 1860s has been cited by an examiner to show that the modern patent application reads on the prior art. Note that when we say that an application “reads on” prior art, this is a way of saying that there is prior art that is relevant to the claims in the application.

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b. Processes/Methods Patents can cover processes and methods. Many processes and methods are also related to a physical device. A patentee is not limited to seeking protection using just one type of claim. Consequently, a patent application should typically include both apparatus and method claims. So, for example, an inventor can patent his new apparatus for filtering and purifying plant extracts as well as his filtration method.

c. Chemical Compositions or Compounds Inventors may seek patent protection for chemical compositions such as those arising in the fields of pharmaceuticals, biotechnology, materials science, and petrochemicals. For example, a patent could have been issued long ago on aspirin, a chemical compound that relieves headaches.

Patents covering pharmaceuticals, for example, tend to be the most profitable individual patents. Given that the patent application must be filed prior to public disclosure and given that rigorous testing must be conducted for new drugs, it is not uncommon for pharmaceutical companies to file many patent applications on a variety of drugs while they are still in the early testing stages. Consequently, many of these applications are abandoned prior to issuance as patents because the manufacturer subsequently learns that the drug is either not effective or unsafe.

Many of the world’s patent laws have prohibitions against patent protection for inventions associated with treatment of the human body. This may require special attention when drafting claims for known pharmaceuticals having new uses as well as for methods of treating various conditions with novel compounds.

Bayer began advertising directly to American consumers just before the expiration of the aspirin patent. This ad, from the New York Times, February 19, 1917, emphasizes Bayer as the "One Real Aspirin" in anticipation of legal competition in the American market

Newspaper ad for Bayer Aspirin from April 1918 Newspaper ad for Bayer Aspirin from April 1918. The aspirin patent had expired, Bayer still had control over the Aspirin trademark, seen at the bottom of the ad, and a "patriotic" slogan to buy war bonds. Also shows the factory in New York State

f. Computer Programs There has been much debate about whether computer programs should be patentable and different countries have different rules on this subject. In some countries a new and useful computer software program is treated as a patentable system, method and/or apparatus for achieving a certain end. A computer program may also be patentable because it implements, through software instructions, a useful function in a new way (e.g. by making the computer program process data more efficiently and faster

g. Improvements For example, Inventor A holds a patent for an apparatus used to fill medicine bottles. Later, Inventor B receives a patent for a filling apparatus which represents an improvement on Inventor A’s machine. B’s invention may, for example, fill the bottles quicker and with less spillage in a novel way. Even though Inventor B holds a patent on the improved machine he may not be able to practice his patent B without consent from Inventor A since it uses A’s invention. Typically, consent is sought through a licensing negotiation.

WHY ARE PATENTS IMPORTANT?

Revenue Source Marketing Benefit Bargaining Chip Industry Control/Influence Defensive Uses

SELF TEST What is prior art? At present, what is generally the term or length of a patent in most countries? Patent claims are sets of sentences, typically appearing at the end of the patent, that describe the invention in detail. True or False? What is the difference between “examination systems” and “registration systems” for a patent application? Which type of patent is generally used to protect processes or chemical compositions? a) utility patents, b) design patents or c) plant patents? A patent application may include both apparatus and method (process) claims. True or False? List four reasons why patents are significant. What is a “blocking patent” and why is it important?