Blocking Patents; Offensive and Defensive Patenting
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Exploring the Relationship Between State-Of-The-Art, Technological and Commercial Feasibility, and the Restatement’S Reasonable Alternative Design Requirement
“FASTEN YOUR SEAT BELT, ORVILLE!”: EXPLORING THE RELATIONSHIP BETWEEN STATE-OF-THE-ART, TECHNOLOGICAL AND COMMERCIAL FEASIBILITY, AND THE RESTATEMENT’S REASONABLE ALTERNATIVE DESIGN REQUIREMENT RICHARD C. AUSNESS* INTRODUCTION Of course Wilbur never told Orville to fasten his seat belt. Not only did the first Wright Flyer have no seat belts, it did not even have seats!1 Orville steered the Wright Flyer I from a prone position, not sitting up.2 Nor was the Wright brothers’ flying machine equipped with such useful safety features as brakes, landing gear, a radio, ailerons, or even much of a tail.3 In fact, if the truth be told, the Wright brothers’ airplane was a flying deathtrap. The good news for both modern pilots and their passengers is that aircraft technology, including safety technology, has progressed enormously since 1903. Aircraft manufacturers have now incorporated many forms of technology, such as radar, global positioning navigation systems, transponders, radios, anti-lock braking systems, and fire-resistant insulation in order to make their products safer. Unfortunately, progress has not been as impressive in other areas. Consider punch presses. Notwithstanding the fact that these machines cause hundreds of injuries in the workplace each year, many punch presses continue to employ Rube Goldberg-like devices such as “pullbacks” to protect punch press operators from serious injury.4 Why has safety technology improved so dramatically over the last hundred years for airplanes while punch press safety technology apparently has not? One explanation for this curious result is that product manufacturers effectively control the pace of technological development, including the development of safety-related technology by deciding how much to invest in research and development.5 At the same time, the experience of aircraft and punch press * Dorothy Salmon Professor of Law, University of Kentucky College of Law. -
The United States and Europe at a Crossroads
St. John's Law Review Volume 55 Number 3 Volume 55, Spring 1981, Number 3 Article 2 Design Liabilty and State of the Art: The United States and Europe at a Crossroads Hans-Viggo von Hulsen Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. DESIGN LIABILITY AND STATE OF THE ART: THE UNITED STATES AND EUROPE AT A CROSSROADS* HANS-VIGGO v. HOLSENt INTRODUCTION Viewed generally, the decade of the 1970's was one in which the American law of products liability showed signs of great uncer- tainty. Though the doctrine of so-called "strict tort liability" in- creasingly was adopted, the courts left significant questions to be resolved later on a case-by-case basis. For example, how "strict" was this liability to be? Would a manufacturer's exercise of reason- able care or even a high degree of prudence avoid "strict liability?" What role is to be played by a manufacturer's compliance with the applicable "state of the art?" Which defenses would be available? How would the new doctrine be applied at the trial level? These and a host of other questions were not conclusively answered dur- ing the last decade. There are signs that in the decade of the 1980's some uncertainty will continue. -
Patenting Software in the Context of Embedded Systems
1 Patenting Software in the Context of Embedded Systems Speaker: Dr. Jochen Reich Dr. Jochen Reich represents clients as German and European Patent Attorney focusing on information technology. He graduated at Technical University of Munich and holds a Master´s Degree and Ph.d. both in computer science. He chairs the patent working group of Society for Computer Science representing the largest computer science community in the German speaking area. He operates his law firm in Munich in close proximity to the German and European Patent Office. 2 3 Overview/ General Motivation Embedded Systems Hardware § Software Patents Embedded Systems: Patenting Hardware and/ or Software? => Strategies? 4 Applications Domains: Semiconductor Artificial Hardware Processors Intelligence E-Mobility LEDs Autonomous Driving Software Image Development Recognition Computer Science/ CII Infotainment Car-to-x Communication Embedded Systems Tele- Human communications Smart Home Machine Interfaces 3GPP … CII: Computer implemented Inventions 5/7 How to claim Embedded Systems? Guidelines for Examination in the European Patent Office: Memory for storing information: ANY (!) memory Claim types: • (Computer implemented) method • Apparatus/ System arrangement • Computer Program Product 6 Dr. Jochen Reich, 2015 Way to protection: Patentanwalt Feedback: Solving a technical Problem Research needs Inventor Feedback: Research needs Drafting an invention report Inventor Feedback: Level of invention Innovation Competition Divisional Filing report with IP department Inventor Analysis -
The US and Russian Patent Systems
THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW THE U.S. AND RUSSIAN PATENT SYSTEMS: RECENT AMENDMENTS AND GLOBAL IMPLICATIONS FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ELENA BEIER AND ANNE WRIGHT FIERO ABSTRACT Recent legislative and geo-political activity might suggest little common ground between the United States and Russia. The respective intellectual property laws of these two countries, however, share many common goals. In fact, as reflected in the Report of the Innovation Working Group of the Russia-US Bilateral Presidential Commission (initiated by the Ministry of Economic development of the Russian Federation and U.S. Department of State), the two countries are trending towards cooperative intellectual property legislation. This article compares U.S. and Russian patent laws, with a particular emphasis on recent amendments in the areas of inventorship, prior art, and technology transfers. It further explores how these legislative amendments can shape and encourage global competition and innovation. Copyright © 2015 The John Marshall Law School Cite as Elena Beier and Anne Wright Fiero, The U.S. and Russian Patent Systems: Recent Amendments and Global Implications for the Protection of Intellectual Property Rights, 14 J. MARSHALL REV. INTELL. PROP. L. 504 (2015). THE U.S. AND RUSSIAN PATENT SYSTEMS: RECENT AMENDMENTS AND GLOBAL IMPLICATIONS FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS ELENA BEIER AND ANNE WRIGHT FIERO I. INTRODUCTION............................................................................................................ -
Inventions and Patents
MODULE 03 Inventions and Patents MODULE 03. Inventions and Patents OUTLINE LEARNING POINT 1: Basics of invention and patent 1. One way of adding value to a product 2. Reasons for patenting an invention LEARNING POINT 2: Patent application 1. Evaluating the patentability of an invention 2. Deciding whether to patent an invention 3. Preparing a patent application (1) Detailed description of the invention (2) Claims (3) Who prepares (4) After filing a patent application LEARNING POINT 3: Patent infringement 1. Definition of patent infringement 2. If you come across your competitor’s patent LEARNING POINT 4: Patent management system 1. Basic elements of a patent management system 2. Patent portfolio INTRODUCTION The term "intellectual property (IP)" is defined as the property resulting from creations of the human mind, the intellect. In this regard, it is fair that the person making efforts for an intellectual creation has some benefit as a result of this endeavor. Probably, the most important among intellectual properties is “patent.” A patent is an exclusive right granted by a government for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. The details on the way of acquiring patents will be provided for protecting precious intellectual properties. LEARNING OBJECTIVES 1. You understand how to decide whether your new technology or invention should be protected by one or more patents and, if so, how to do so. 2. You know how the grant of a patent over an invention or technology helps you to prevent or have an upper hand in legal disputes that may arise later on. -
Defensive Publishing: a Strategy for Maintaining Intellectual Property As Public Goods
Briefing Paper 53 International Service for National Agricultural Research September 2002 DEFENSIVE PUBLISHING: A STRATEGY FOR MAINTAINING INTELLECTUAL PROPERTY AS PUBLIC GOODS Stephen Adams and Victoria Henson-Apollonio Public research institutions must consider means to ensure that the products of their work will remain accessible to their beneficiaries. One such means is “defensive publication.” In a defensive publication, the scientists disclose details about their innovation to the public, thereby preserving their freedom to use the innovation by preventing others from patenting it. The link between defensive publication and patenting is the requirement for novelty in a patent application. Since a defensive publication makes a description of the innovation available publicly, the innovation can no longer be called new and thus patent-worthy. For agricultural researchers in the public sector, defensive publication serves two purposes: it is a means to both communicate results to others and to forestall an eventual patent award on the innovation described, hence preserving the research product as a public good. If the defensive publication is made widely available, the invention could be considered a public good internationally. Defensive publishing is just one of a range of tools that enable scientists and research enterprises to exploit their intellectual property effectively. Indeed, it should not be used alone, but rather as part of an institutional strategy for management of intellectual property assets. All research organizations, large or small, regardless of location, should have such a strategy in place. This Briefing Paper first introduces the practice of defensive publication. It then reviews the concept of novelty, which is at the center of the use of defensive publishing to preclude patenting. -
Study Mandated by the Tegernsee Heads: 18-Month Publication
Tegernsee Experts Group September 2012 STUDY MANDATED BY THE TEGERNSEE HEADS 18-MONTH PUBLICATION Table of Contents I. Introduction II. State of 18-Month Publication Among Tegernsee Group Members A. European Patent Office (EPO) 1. Legal Requirements 2. Policy Considerations 3. 18-Month Publication in Practice 4. Policy Argument B. United Kingdom (UKIPO) 1. Legal Requirements 2. Policy Considerations 3. 18-Month Publication in Practice C. France (INPI) 1. Legal Requirements 2. Policy Considerations 3. 18-Month Publication in Practice D. Japan (JPO) 1. Legal Requirements 2. Policy Considerations E. U.S. (USPTO) 1. Legal Requirements 2. Policy Considerations 3. 18-Month Publication in Practice III. Discussion of Results A. Contribution from EPO B. Contribution from JPO 1 C. Contribution from USPTO IV. Conclusion Appendix A: U.S. Patent Statue Appendix B: U.S. Statistics Appendix C: U.S. Statistics Appendix D: Extracts of Japanese Patent Law Appendix E: Japan's Example of “Submarine Patent” 2 I. Introduction The practice of publishing patent applications at 18 months from the earliest effective filing date (including any claimed priority) is a common fixture in many of the world’s patent systems, and represents a balance of interests between inventors and third parties, including the public. On the one hand, 18 months is thought to represent a reasonable period of time after filing of the application for the inventor to make an assessment whether to continue prosecution of the application or to withdraw or abandon it. On the other hand, 18 months is believed to be a reasonable period of time for third parties to wait to obtain information about a new technology. -
Defensive Publishing
Defensive Publishing Defensive publishing is an intellectual property strategy that can prevent any party, including competitors or non-practicing entities, from obtaining a patent rendered either not novel or obvious from patent applications with a priority date later than its publication date. A publicly disclosed description of an invention becomes available as prior art as of its publication date. In the U.S., when an inventor publishes his or her invention, the one-year grace period ensures that the inventor’s patent rights are not immediately extinguished. Grace period provisions differ by country, and, where WHAT CLIENTS available, are often six months or one year. After this time, the invention will enter the public domain. ARE SAYING Defensive publication should be considered when the cost of patenting outweighs the benefits of a monopoly, i.e. the exclusive rights provided by a patent. In contrast to attempting to maintain an invention as a trade secret, defensive publications will bar the ability for competitors to obtain a patent. “Providing our information IP.com’s Prior Art Database (PAD) is the world’s first and largest online prior art disclosure service, and has to IP.com will give patent been in existence since 2000. The database is a multilingual source of unique and rare technical disclosures examiners the ammunition they and other non-patent literature, and is publicly available for keyword or concept-based searching at priorart. need to object to questionable ip.com. It is also searchable within our patent search and analytics platform, InnovationQ. Publishing into the patent applications.” database is simple and our publication vouchers are affordably priced, with volume discounts available. -
11 Defensive Protection of Farmers' Varieties
Copyright Material – Provided by Taylor & Francis 11 Defensive protection of farmers’ varieties Isabel López Noriega Introduction In 2006, I was invited to participate in a seminar arranged by the Institute of Agricultural Research in Peru (INIA, Instituto Nacional de Innovación Agraria) on the creation of a national official register for landraces and traditional varie- ties of potato and maize. This register was to be an officially recognized list that would be supported by the government, where different users could enter and access information about Peruvian traditional varieties of potato and maize. The main purpose of the seminar was to discuss possible objectives of the register with a number of people involved in genetic resources conservation and use within the country, including research institutes, farmers’ associations and organizations working with indigenous communities. During the seminar, several participants argued that one of the most important objectives of the register should be to officially recognize traditional farmers as the originators of the huge biodiversity of potatoes and maize that are conserved and cultivated in Peru. Being educated in Europe and having a legal background, I quickly and nat- urally assumed that they were somehow talking about granting farmers intel- lectual property rights over their varieties. I raised my hand and asked if they were actually meaning to confer this idea and, if so, how they were planning to do it. The reaction from the audience was strong and immediate. Participants who were representing the farmers as well as the national research institute stated that neither the farmers nor the public institutions in Peru wanted to be given any monopoly rights over their traditional varieties and landraces but that they simply wanted to be recognized as the developers and conservers. -
Publication of Patent Applications Summary of Responses
Informal Discussion Document: Publication of Patent Applications Summary of Responses Intellectual Property Office is an operating name of the Patent Office 1 Introduction 1. The Intellectual Property Office (IPO) launched an informal discussion document about a potential new IPO service in publishing patent applications in August1 last year. The document sought to discover what applicants wanted from the patent system and proposed ideas on how the IPO might change its practice to offer publication of patent applications differently in the future. Alongside the discussion document, an online questionnaire was made available to a number of unrepresented applicants who had indicated a willingness to provide customer insight. 2. One of the main ideas proposed in the document was to offer publication of a patent application without requiring other patent processing. This would in appropriate cases save scarce patent examiner resource and still meet demand from some users, most notably lone inventors, for publishing a patent application without it proceeding to grant. This publication could be used for defensive purposes to prevent others gaining patent protection for their ideas but would not provide the applicant with any monopoly rights. The time saved by patent examiners could then be deployed more effectively in processing patent applications intended to proceed to grant. 3. The response to the informal discussion and questionnaire was extremely encouraging, with detailed comments from a wide cross-section of IPO users including patent -
The Null Patent, 53 William and Mary Law Review
Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2012 The ulN l Patent Sean B. Seymore Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Sean B. Seymore, The Null Patent, 53 William and Mary Law Review. 2041 (2012) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/403 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. THE NULL PATENT SEAN B. SEYMORE* ABSTRACT Failureis the basis of much of scientific progress because it plays a key role in building knowledge. In fact, negative results compose the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information-whetherit be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transformingscientific norms toward disclosure is no easy task. As for patent law, the potentially important role that negative results can play in determiningpatentability has heretofore been overlooked. This Article addresses these issues by proposing a new medium of disclosure called the null patent. Whereas null patents would lack claims and therefore not confer a right to exclude, they would strongly resemble other patent documents in substantive technical content and bibliographicinformation-thus making them amenable to technology-based classification, indexing, and open-access searching. -
"Defect" in Design Strict Products Liability Theory John L
University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1983 Eliminating the "Defect" in Design Strict Products Liability Theory John L. Diamond UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Torts Commons Recommended Citation John L. Diamond, Eliminating the "Defect" in Design Strict Products Liability Theory, 34 Hastings L.J. 529 (1983). Available at: http://repository.uchastings.edu/faculty_scholarship/100 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Diamond John Author: John L. Diamond Source: Hastings Law Journal Citation: 34 Hastings L.J. 529 (1983). Title: Eliminating the “Defect” in Design Strict Products Liability Theory Originally published in HASTINGS LAW JOURNAL. This article is reprinted with permission from HASTINGS LAW JOURNAL and University of California, Hastings College of the Law. Eliminating the "Defect" in Design Strict Products Liability Theory by JOHN L. DIAMOND* Since the concept of strict products liability was introduced by Jus- tice Traynor in Greenman v. Yuba Power Products, Inc.,' courts have struggled to define what standards should govern imposition of such liability. In cases alleging improper design, the struggle has centered on the definition of "defective" design.2 The varied responses stem in part from continued judicial attempts to incorporate warranty and neg- ligence theories into purported strict liability standards.