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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.[1] 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.[2]
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 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.[3] Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years.[4] 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 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 is often referred to as a form of intellectual property right,[5][6] an expression which is also used to refer to trademarks and copyrights,[6] 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 the US,[7] plant breeders' rights are sometimes called plant patents,[8] 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.
Although there is evidence that some form of patent rights was recognized in Ancient Greece in the city of Sybaris,[9][10] 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.[11] Patents were systematically granted in Venice as of 1474, where they issued 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.[12] As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.[13]
The English patent system evolved from its early medieval origins into 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.[14] By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies.[15] 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 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 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.[16] 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.[17]
The English legal system became 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.[18]
The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts".[21] 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).[22] 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 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.[23]
In the US, married women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 did refer to "she",[25] 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.[26] This historical gender gap has lessened over the course of the 20th and 21st centuries, however, disparity is still prevalent.[27] In the UK, for example, only 8% of inventors were female as of 2015.[28] This can partly be attributed to historical barriers for women to obtain patents,[26] as well as to the fact that women are underrepresented in traditionally "patent-intensive" sectors, particularly STEM sectors.[27] Marcowitz-Bitton et al. argue that the gender gap in patents is also a result of internal bias within the patent system.[27]
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 was the World's leader in terms of patent families filed between 1900 and 1966, when Japan took over. Since 2007 PR China leads.
A patent does not give a right to make or use or sell an invention.[1] Rather, a patent provides, from a legal standpoint, the right to exclude others[1] 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[4] subject to the payment of maintenance fees. From an economic and practical standpoint however, a patent 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.[56] 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 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.[1] 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 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 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 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.[57][58]
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