Rethinking Novelty In Patent Law
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Rethinking Novelty In Patent Law
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Author : Sean B. Seymore
language : en
Publisher:
Release Date : 2013
Rethinking Novelty In Patent Law written by Sean B. Seymore and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge in the field to fill in any missing technical details from the prior disclosure? This Article argues that existing novelty jurisprudence mishandles the possession question in two ways. First, it tends to overestimate the PHOSITA's then-existing knowledge by failing to fully appreciate the complex nature of certain technologies. Second, the current examination framework vitiates the presumption of novelty by placing proof burdens on the would-be inventor that can thwart innovation and frustrate important objectives of the patent system. To resolve these problems and to fill a gap in patent scholarship, this Article proposes a new paradigm that reframes the novelty inquiry during patent examination. Its implementation will not only improve the quality of issued patents, but make the patent literature a more robust source of technical information. This Article contributes to broader policy debates over patent reform and joins a larger effort to bridge the disconnect between patent law and the norms of science.
Rethinking Patent Law
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Author : Robin Feldman
language : en
Publisher: Harvard University Press
Release Date : 2012-06-19
Rethinking Patent Law written by Robin Feldman and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-06-19 with Law categories.
Scientific and technological innovations are forcing patent law into the spotlight and revealing its many glaring inadequacies. Take, for example, the patent case that almost shut down the BlackBerry, or the growing phenomenon of patent trolling, in which patents are acquired for the sole purpose of entrapping companies whose products relate to them. And patents on genes have everyone up in arms—and our courts confused. Robin Feldman explains why patents are causing so much trouble. The problem lies in our assumption that patents set clear boundaries for rights to an invention. In reality, they do no such thing. The very nature of inventions makes them impossible to describe unambiguously for all time. When something is so new that we do not understand yet how it works, what it is capable of doing, or how it could be applied—as is often the case in biotechnology—description is necessarily slippery. Instead of hoping for clear boundaries, and moaning when we don’t get them, Rethinking Patent Law urges lawmakers to focus on what the law can do well: craft rules that anticipate the bargaining that will occur as rights unfold. By steering clear of laws that distort the bargaining process, lawmakers can help courts answer difficult questions, such as whether genes, software, and business methods constitute patentable subject matter, whether patents in the life sciences should control inventions that have yet to be discovered, and how to resolve the battles between pharmaceutical companies and generics.
Point Of Novelty
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Author : Mark A. Lemley
language : en
Publisher:
Release Date : 2020
Point Of Novelty written by Mark A. Lemley and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020 with categories.
We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new.It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee's invention are in fact new. A patented invention is legally defined by its claims - written definitions of the invention. And those written definitions virtually never call out what it is that is new about the patentee's invention. Even if the parties do identify the novel element of an invention, the law purports not to care. Long-standing patent law doctrine has decried any focus on the “point of novelty” of an invention. The United States Court of Appeals for the Federal Circuit evaluates the claim as a whole, not just the piece of the claim that the patentee actually added to the storehouse of knowledge. As the court frequently puts it, “there is no legally recognizable . . . 'gist' or 'heart' of the invention.” It turns out, however, to be hard to sustain a rule that a law concerned with novelty will pay no attention to the point of novelty. And so point-of-novelty issues crop up in a number of different doctrines in patent law, from figuring out who counts as an inventor to whether the inventor has disclosed the “best mode” of practicing the invention to when the sale of a product exhausts the patentee's rights in the patent. Courts are inconsistent in whether and how they consider the point of novelty in these doctrines and more. But when the Federal Circuit presented with a question in point-of-novelty terms, it most often falls back on the mantra that there is no point of novelty to an invention, even if it means discarding long-standing precedent.It's time to rethink the no-point-of-novelty doctrine in patent law. I argue that ignoring what is novel about patentee's invention makes little sense as an across-the-board matter, and leads to a variety of harmful consequences. While refusing to focus on the point of novelty serves some valuable purposes, there are other ways to achieve those ends. And in the end, a patent regime that pays attention to what the patentee actually invented, not what the patent lawyer wrote down, is more likely to achieve the goal of promoting innovation.
Rethinking The Development Of Patents
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Author : Adam Mossoff
language : en
Publisher:
Release Date : 2014
Rethinking The Development Of Patents written by Adam Mossoff and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014 with categories.
The history of patents begins, not with inventions, but with royal grants of industrial monopolies in the fifteenth century. By the end of the eighteenth century, however, patents represent a right to property in a novel mechanical or scientific invention. Commentators today maintain that this radical shift from royal monopoly privilege to legal property right occurred solely in response to economic or institutional demands. While political, economic and institutional conditions certainly played a role in this story, this article maintains that the ideas of John Locke were the fountainhead behind the evolution of patents for inventions. Although there were fits and starts toward a new patent doctrine in the seventeenth century, the watershed moment occurred when the common law courts acquired jurisdiction over patents from the Privy Council in the mid-eighteenth century. The common law judges - learned men steeped in the traditional rights of Englishmen and in the philosophy of natural rights - redefined the doctrine of patents by drawing upon the ideas that formed the basis of their own political and legal philosophy. The result was the novelty and the specification requirements, which are first described by Lord Mansfield and Justice Buller in terms that reflect John Locke's labor theory of property and social contract theory. In surveying the historical record, i.e., in looking at the ways in which royal councilors, judges and inventors conceived of patents between 1550 and 1800, the influence of Locke's ideas upon this important legal doctrine is evident. This provenance of patent law thus suggests that an inventor's moral right to the property in one's invention should play a role in the ongoing debate concerning the protections afforded by the patent laws.
Rethinking Patent Law S Presumption Of Validity
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Author : Douglas Lichtman
language : en
Publisher:
Release Date : 2011
Rethinking Patent Law S Presumption Of Validity written by Douglas Lichtman and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011 with categories.
The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a Herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. In this Article, we argue for reform. Deference to previous decision-makers is appropriate in instances where those previous decisions have a high likelihood of accuracy, and the patent system should endeavor to create processes that fit this mold. But granting significant deference to the initial process of patent review is indefensible and counter-productive. Patents should be vulnerable to challenge until and unless they are significantly evaluated in an information-rich environment. At that point, they will have earned and therefore should be accorded a presumption of validity. Such an approach would better serve the patent's systems long-run incentive goals, and it would give patent applicants better incentives to file for genuine inventions but leave their more obvious and incremental accomplishments outside the patent system's purview. Here, we therefore suggest the creation of a two-tier system of patent validity, with patents that are subject to intensive scrutiny accorded a strong presumption of validity, while untested patents are left to be evaluated more fully in court.
Patents As An Incentive For Innovation
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Author : Rafal Sikorski
language : en
Publisher: Kluwer Law International B.V.
Release Date : 2021-02-16
Patents As An Incentive For Innovation written by Rafal Sikorski and has been published by Kluwer Law International B.V. this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-02-16 with Law categories.
Patents as an Incentive for Innovation Edited by Rafal Sikorski & Zaneta Zemla-Pacud Patents are a reward for human inventiveness. A well-functioning patent system must provide incentives for innovation, safeguard dynamic competition and protect the public interest – a balancing act fraught with difficulty in the ‘connected’ global world. This ground-breaking book is the first to deeply analyse how patent law today performs its function of stimulating innovation in the crucial sectors of healthcare, agriculture, artificial intelligence and communications technology. Patent specialists, practitioners and scholars from various jurisdictions thoroughly describe how patent rights can be deployed to incentivize investments in researching and developing socially critical innovations without sacrificing the public’s interest in sharing the benefits that are produced. Among the emerging issues of patent rights investigated are the following: protectability and morality of according private rights over material derived from the human body; licensing on fair, reasonable and non-discriminatory (FRAND) terms; the supplementary protection certificate (SPC) manufacturing waiver; patent eligibility of artificial intelligence-related inventions; excessive enforcement of patents by patent assertion entities; enforcement of second medical use innovations; the so-called farmer’s privilege, the farm-save seed exemption, and breeders’ rights; international trade regulations and their influence on patent systems; human enhancement technologies and the consequences of patenting them; specifics of patent protection for biologic medicines; challenges posed by artificial intelligence for the disclosure requirement in patent law; and standard essential patent licensing, particularly in the context of the 5G standard. Perspectives taken into consideration by the authors include protectability criteria, length and scope of the granted protection, mechanisms for dealing with the friction between generalized application and specialized concerns, and rights enforcement. These aspects are analysed on the domestic, international and global levels. The COVID-19 pandemic has highlighted the urgent need to strike the right balance between innovation and access in healthcare and other technologies, a need rooted in patent law. Because the problems discussed – and solutions offered – in this collection of expert essays are of tremendous practical and cultural significance, the book will be of immeasurable value to practitioners, policymakers and researchers in patent law and other fields of intellectual property law.
Rethinking Patent Law
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Author : Robin Feldman
language : en
Publisher: Harvard University Press
Release Date : 2012-06-19
Rethinking Patent Law written by Robin Feldman and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-06-19 with Law categories.
Scientific and technological innovations are forcing the inadequacies of patent law into the spotlight. Robin Feldman explains why patents are causing so much trouble. She urges lawmakers to focus on crafting rules that anticipate future bargaining, not on the impossible task of assigning precise boundaries to rights when an invention is new.
Patent Claim Construction
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Author : Robert C. Kahrl
language : en
Publisher: Wolters Kluwer
Release Date : 2001-01-01
Patent Claim Construction written by Robert C. Kahrl and has been published by Wolters Kluwer this book supported file pdf, txt, epub, kindle and other format this book has been release on 2001-01-01 with Law categories.
Patent Claim Construction is the first comprehensive treatise on claim construction in the U.S. Court of Appeals for the Federal Circuit. This practical resource helps lawyers of all experience levels gain a firm footing in the rapidly evolving rules of claim construction. This knowledge thereby allows for the systematic and efficient identification of the rules most advantageous to the client's position. Patent Claim Construction offers expert analysis of emerging methodologies, reflected in current case law for interpreting patents as a matter of the law and detailed descriptions of the cases applying the rule, as well as commentary describing the trend toward or away from favoring that particular rule. Additionally, the author includes a complete guide to the evidence, or modes of proof, accepted by the courts in applying claim construction principles and specific guidance on how the courts are likely to interpret certain phrases, terms, or forms of claims.
Wipo Technology Trends 2019 Artificial Intelligence
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Author : World Intellectual Property Organization
language : en
Publisher: WIPO
Release Date : 2019-01-21
Wipo Technology Trends 2019 Artificial Intelligence written by World Intellectual Property Organization and has been published by WIPO this book supported file pdf, txt, epub, kindle and other format this book has been release on 2019-01-21 with Law categories.
The first report in a new flagship series, WIPO Technology Trends, aims to shed light on the trends in innovation in artificial intelligence since the field first developed in the 1950s.
Transition And Coherence In Intellectual Property Law
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Author : Niklas Bruun
language : en
Publisher: Cambridge University Press
Release Date : 2021-01-07
Transition And Coherence In Intellectual Property Law written by Niklas Bruun and has been published by Cambridge University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2021-01-07 with Law categories.
This volume is for students and scholars of intellectual property law, practitioners seeking creative arguments from across the field, and policymakers searching for solutions to changing social and technological issues. The book explores the tensions between two fundamentally competing demands made of IP law.