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GROUP N 6 ENE, LOREDANA TATIANA (583182) URREA ANDRES, CAROLINA (535553) VILELLA PIOL, CAROLINA (664392)
TABLE OF CONTENTS
1) What is a Patent?
2) Differences between a patent, a trademark and a copyright 3) What does a Patent do? 4) What kind of Protection does a Patent offer? 5) What Rights does a Patent Owner have 6) Why are Patents necessary? 7) What Role do Patents Play in Everyday Life? 8) How is a Patent Granted? 9) What kinds of Inventions can be protected? 10) Who grants Patents? 11) How can a patent be obtained worldwide? 12) What is the PCT? 13) How can I find the patent laws of various countries? 14) Steps to follow in order to obtain a patent for an invention 15) Patents infringement -study cases 16) Appendix 17) Bibliography
1) What is a Patent?
A patent is an exclusive right granted by the State, for a limited time, usually 20 years from the date of the invention application. This right allows the patent holder to prevent others from making use of the patented technology. In general is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
An invention must meet the following conditions in order to be protected by a patent: must have practical use must introduce an element of novelty must show an inventive step.
A patent provides to the patent holder protection for the invention he/she has created and patented. The right conferred by the patent grant is the right to exclude others from making, using, offering for sale, or selling the invention. What is granted is the right to exclude others from making, using, offering or doing whatever with the invention. Patents also incent people to create products, offering them recognition for their creativity and material reward for their inventions.
that he/she is the author of that material. These facts encourage people to create their own stuff, enhancing innovation and creativity as well. There are many situations that reflect the necessity of a patent.
invention needs to provide an unknown characteristic of the technical field, which the invention belongs to. To end up with, all these requirements, must take into consideration the law as the object has to be accepted as patentable by the current laws. As an example, in many countries, some products that could be the substitute of a medical treatment or a medicine are totally forbidden.
Nowadays there is an increasing necessity of international patents. Trying to make things easier for patentees who want their patents in more than one country, it has appeared the PCT and some other treaties aimed to break the barriers. If an applicant wants a patent with a larger coverage for his invention he must fill applications in each country he wants to have protection and the patent shall be granted and enforced according with the law of each country if conceded. There are some areas where, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that area. The WIPO that was mentioned before is a specialized agency of the United Nations that administers all the treaties related to patent protection and intellectual property. For example, it administers the PCT, the Vienna Agreement, and the Rome Convention. EPO is the European Office of Patents, created by the European Patent Agreement, also named as Munich Agreement about patents. This agreement was signed the 5th October of 1973. The main objective of the Agreement was to establish a system of common law for the concession of invention patents. The EPO grants patents throughout a unique process because with the presentation of only one application, the invention can be protected in all the member countries that are in the agreement. The office has headquarters in: La Haya, Berlin, Munich and Viena as well. Apart from the EPO, there are some other treaties that help us to protect our patents almost worldwide, for instance the PCT. Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. The procedure and the requirements for granting a patent differ from country/region to country/regional. Same goes for the fees amount.
The Patent Cooperation Treaty is a multilateral treaty that is in force since 1978 and is administered by the World Intellectual Property Organization (WIPO). The countries that take part in the treaty constitute an union to cooperate in the filing, searching and examination of patent applications. The PCT facilitates the processing of applications for the protection of inventions where such protection is desired in several countries, establishing a system by which the presentation of a single application produces the same effect as if the application had been filed in each of the desired countries and designated by the applicant. It is worth mention that the PCT is not a procedure for the grant of a patent and it does not replace the national awards, but it is a system of unification of the processing prior to award, which replaces the processing country by country and reduces the costs. In the PCT, an office of the international treaty examines the formal aspects of the documentation and sends it to the International Bureau of the Organization (WIPO) and to the Search Authority (ISA) for the corresponding report on the above application. Depending on the results of the report, the applicant may continue the procedure in the national office of each State designated in the application (designated office). The countries that belong to the PCT are listed in appendix 1. Filing an international application under the PCT has many advantages for the applicants: one application is filed which has effect in all the member countries of the PCT; you only need to take into account one set of formalities; you do not need to provide a translation of the documents of your application into all
the languages of the countries that are in the treaty after filing a PCT application you receive an International Search Report (ISR) and an
examination report called a Written Opinion of the International Searching Authority (ISO) which should give you an indication of the strength of your patent application before you decide if you want to pursue patent protection or not
the PCT system gives you extra time to reconsider the value of the
invention and its potential before paying high costs; and as there is no requirement for you to request an IPE or to enter the national phase for
any country, you may stop the process of the international application at any time you want to avoid incurring further expense.
The steps to take into account to fill the PCT application are the following ones: The INTERNATIONAL PHASE, which takes place in the receiving office, the International Office (OMPI) and the Administration that, is the responsible for the International Search and the Preliminary International exam.
The PCT application is filed: The Receiving Office (RO) checks the application in
order to see if there are mistakes. Then, a filing number is assigned to the application. The approximate time of this process is from six to eight weeks.
the International Search Authority (ISA) to look if there is any relevant document describing similar descriptions to the one that is in process of application. The findings of that search are compiled in a search report called an International Search Report (ISR). An examination report called Written Opinion of the International Searching Authority (ISO) is also made. All these reports are sent to the agent in the International Bureau (IB). Applicant claims can be amended (under article 19) based on the findings of ISR and ISO. Amendments must be made within 2 months of receiving the ISR and ISO or within 16 months of the earliest priority date As a PCT requirement, the ISR and ISO must be issued within three months of the applications lodgment date.
The application is published by the IB: 18 months from the earliest priority
date, the IB publishes the application and the ISR. There is no provision for delay in publishing the application it can be published without the concluded ISR if necessary. At this moment, if the applicant wishes to avoid or put off publication, a notice of withdrawal of the international application, or of the priority claim, must reach the IB before the completion of the technical preparations for international publication this must be done no later than 15 working days before it is due to be published. At 30 months from the earliest priority date the IB uses the ISO to establish the IPRP1 which is communicated to all designated offices.
request an Optional Preliminary Examination (IPE) of the application that is called a demand.
The IPE is based on the ISO and any amendments that help the applicant refine the application before deciding whether or not proceeding to the national phase. This phase provides the applicant with:
recognition of the priority date in all member countries of the PCT; access to an International Search Report (ISR), and an examination report called an
International Preliminary Report on Patentability (IPRP) which allows the applicant to assess the patentability of the invention; patent; the opportunity to modify the application taking into account any reports or searches the fee of the International application includes the presentation, International Search, a WIPO publication number and PCT application number. These numbers are useful when selling the invention for the reason that they prove that the applicant has applied for a
The NATIONAL PHASE. Usually by the end of 30 months from the priority date, the applicant will have to ask for the international application to proceed separately as a standard patent application in the countries that have been selected by him for patent protection. The applicant needs to take certain actions in order for the application to enter the national phase and these actions must be completed before the relevant deadline. Most countries allow 30 months from the priority date in which to enter the national phase, although some, like Australia, allow 31 months. A small number of countries still require the applicant to request entry to the national phase before 20 months from the priority date unless he has filed a demand (request) for an IPE that was lodged within 19 months of the priority date. It is vital to check the timing requirements of each individual country to enter to the national phase. To proceed in the national phase the applicant must indicate to each office that he is entering the national phase in that country. He would be required to pay the necessary national fees to those offices and supply any translations that may be required. The national offices will examine the application under their domestic law and grant or refuse a patent, according to their own national patent law. It is not necessary to enter the national phase in all countries. You should
The national phase (EPO); may be faster because any barriers to patentability have been identified in the allows the solicitor to pursue his patent application in separate countries that are
selected, either directly or through a regional patent office such as the European Patent Office
international phase.
In March of this year the Finnish group Nokia has filed a lawsuit claiming damages for the use of Apple in seven of its patents in most of its devices. Besides this, Nokia also filed a complaint with the International Trade Commission accusing Apple of infringing several patents in mobile phones, portable music players, tablets and computers. These claims are in addition to those previously presented by Nokia, which accused the company considering that the Apple iPhone violated several of its patents. Specifically, the firm referred to ten patents related to the technology, like wireless data, encryption and voice
encryption and security, to make the devices compatible with one or more standards and notes that iPhones have violated these rights from launch in 2007. Nokia and Apple have been involved in a legal battle over two years for a patent, a fight that ends with payment by Apple of a sum that is not known yet to the European manufacturer of mobile phones, plus an agreement to license patents of Nokia. According to the mentioned statement, over the past two decades, Nokia has invested approximately 43 million euros in research and development and built a portfolio of wireless industry intellectual property rights "stronger and broader" with more than 10,000 families of patents. The licensing agreement is terminating all patent lawsuits between the companies. Since Apple said he was happy to have ended two years of struggle and enter Nokia's licensing program. Apple's lawyers probably have seen that there were many chances of losing lawsuits against Nokia and have been forced to sign an amicable agreement with the Finnish company to avoid having to pay an amount that may be higher than they have done reaching this agreement with Nokia.
Eastman Kodak filed suit against Apple and Research In Motion (RIM), claiming that smartphones of both companies infringe a digital imaging technology of their own. According to Kodak, iPhones, Apple, and camera equipment BlackBerry, RIM, infringe a patent for preview of image. Kodak also presented an application to Apple for patent violation of articles related to digital cameras and certain processes of computers. The director of Kodak's intellectual property says that the company has tried for years to enter into negotiations with these two companies, but failed to reach any satisfactory agreement. Kodak seeks fair compensation for the use of its technology.
The company already has agreements with manufacturers like Nokia, Motorola, Sony or Panasonic related to its technology, and probably these days, they have signed a new partnership agreement with LG Electronics and Samsung Electronics. Kodak asked the federal agency to prohibit Apple and RIM to sell phones since the agency can stop the import of products and parts made with the technology in dispute, but this does not threaten the sale of these smart phones, because the patent processes usually take months or years and often are solved with licensing agreements and royalty payments.
Microsoft continues the war against Android, a mobile system powered by Google; the strategy seems to be one based on trying to stop patent applications of device manufacturers that use this system. A few months ago Microsoft made a complaint to the company Motorola for the user interface, tab management, interaction with documents and Web browsing. Now, Microsoft has reintroduced another lawsuit for alleged patent infringement against the e-book reader Nook the Barnes & Noble and manufacturers Foxconn International and Inventec. The responsible for intellectual property licensing of Microsoft says that "the Android platform Microsoft patent infringement and companies that manufacture and sell Android devices must respect our intellectual property rights." Another of the companies that have invested in Android, HTC, reached an agreement with Microsoft before this particular patent suit. Thus, the dramatic rise benefits of Android HTC Microsoft charged for its use.
Thinkoptics is a new company that apparently has designed a "pointer system for computer and television," called Wavit, which is capable of interacting with more things than only television using its motion sensor. It is also possible to adjust the room lighting where you are, the oven temperature, and change the volume of music. The device, supposedly uses radio frequency and infrared. The firm says that Wii, the console of the Japanese giant, violates patents on the manufacture of Wavit, the particular point of the complaint is that it was filed a few days ago, when the device Nintendo had almost 5 years on the market. Thinkoptics ensures that all the elements that are part of the console violate their patents from the controls to the infrared sensor, or even the games. But the peculiarity of this demand is the site chosen for presentation. The manufacturer of Wavit papers sent the complaint to the District Court of Eastern Texas. This does not guarantee that you will win in his crusade against Nintendo, but such legal entity has earned a reputation for speaking generally in favor of those with the allegations. Several retail chains and distribution of hardware and video games have also been involved in informing, including Wal-Mart, RadioShack, GameStop and JC Penney, and others.
Skype has been sued for patent violation, just a day after explaining how their infrastructure works. Gradient Technologies, is a firm known as patent troll, that is, their patent their inventions with the main intention to initiate actions in order to make patent claims and that is referred as: "method to detect, report and respond to network events in the nodes level ", whose registration was granted in February this year. The company won the creation of decentralized software to monitor and provide security to a network, whose control is distributed using nodes through mobile agents. Precisely, this coincides with the explanation provided by Skype on the technology of
supernodes, which are composed of millions of individual connections between computers and telephones. The curious fact is that the conflict started when this information became public through the Skype blog, showing also that patent trolls are always on the prowl, looking for the perfect time to start these lawsuits that usually are millionaires.
16) Appendix
Article 19 amendment: An optional amendment that is applied to the claims of the amendment international application. The applicant should make these amendments directly to
WIPO after the receipt of the international search report, and Written opinion of the International Searching Authority. Demand: An application for International Preliminary Examination. This form is separate from the PCT Request (or application) form. Examiner may issue one or more written opinions before the International Preliminary Report on Patentability is issued. International Search: A patentability search, not an infringement search, and accordingly should not be relied upon to identify patents which may be infringed by the claimed invention. IPEO: International Preliminary Examination Opinion. The International Preliminary ISO: Written opinion of the International Searching Authority. It is issued automatically with the International Search Report and covers all issues under international preliminary examination. PCT: Patent Cooperation Treaty. WIPO: World Intellectual Property Organization.
17) Bibliography
LIBROS
PATENTES, MARCAS Y DISEO INDUSTRIAL Editorial: Civitas, S.A. Autor: Mara Teresa Soler Cantalapiedra
PATENT FAILURE How judges, bureaucrats, and lawyers put innovators at risk Editorial: Princeton University Press Authors: James Bessen y Michel J. Meurer
INTERNATIONAL PATENT LITIGATION Developing an effective strategy Editorial: Globe Business publishing Author: David Wilson
PAGINAS WEB