Patent

PATENT

For other uses, see Patent (disambiguation).

A patent is a set of exclusive rights granted by a State an inventor or his assignee, for a limited period of time in exchange for the disclosure of invention.

Definition

The patent is a negative right, granted by the State to an inventor or assignee (secondary owner). This law allows the patentee to prevent third parties making use of patented technology, and therefore the patentee is the only one who can make use of the technology claimed in the patent. The patents are not of indefinite duration if they expire after a specified period which is usually twenty years. After the lapse of a patent any person may use the patent technology without the need for consent of its owner.

The holder of a patent may be one or more domestic or foreign persons, physical or moral, combined in the manner specified in the request, the percentage mentioned here. The rights of patents fall into what is called industrial property and, like real estate, these rights can be transferred by deed inter vivos or by succession and may: leased, licensed, sold, traded or inherited. A patent is a set of rights exclusive guaranteed by a government or authority to inventor new product (tangible or intangible) which could be exploited industrially for the good of the applicant for that invention (as representative for example) for a limited amount of time (usually twenty years from the date of application).

The term derives from the Latin patens,-entis, Which originally had the meaning of "being open, or open (to public inspection) and expression letters patentThat royal decrees were guaranteed exclusive rights to certain individuals in business. Following the original definition of the word, one purpose of the legislation on patents is to induce inventors to disclose their knowledge to advance the society in exchange for exclusivity for a limited period of time. After a patent guarantees monopoly to exploit the idea or a machine for some time.

The principle which underlies the patent system is that the copy protection of the invention, the state encourages invention. The building is protected for a period of time, allowing the inventor to be the only selling or exploiting the invention. Thus, its benefit is greater, and capitalize on the resources invested in research. Patents are one option to prevent anyone from copying a product or machinery. At the same time, patents should serve the purpose of quick and effective dissemination of new ideas in technology, improving access to technology.

Benefits of a patent

Some of the usual arguments in favor of patents argue that the benefits that a patent gives an inventor are:

• Motiva creativity of the inventor, as we now have the assurance that their inventive activity will be protected for 20 years and is alone in exploiting it.

• If the patent is commercial or industrial success, the inventor benefits from the operating licenses or decide to grant to third parties.

• Avoid plagiarism of his inventions.

• Because the inventive step are not saved or used only for them by avoiding their industrial exploitation, the inventor always make public, publicize and explain the benefits that his invention is.

• For its part the Government through the patent promotes the creation of industrially applicable inventions, promotes the development and operation of industry and trade and technology transfer.

What is an invention?

Invention is considered any human creation that allows transform matter or energy that exists in nature, for use by people and meet their specific needs. Inventions that are new (novelty), resulting from an inventive and industrially applicable. Also for personal applications.

What is a utility model?

Utility models are considered objects, utensils, appliances or tools, as a result of a change in his disposition, configuration, structure and form, presenting a different function with respect to component parts or advantages in terms of its usefulness. Provided they meet the conditions of novelty.

What is not considered an invention?

• The theoretical or scientific principles.

• Discoveries that consist in making known or revealing something that already existed in nature, even though previously unknown to man.

• The schemes, plans, rules and methods for performing mental acts, games, business and mathematical methods.

• Computer programs.

• The reporting forms.

• Aesthetic creations and artistic or literary works.

• The methods of surgical, therapeutic or diagnostic treatment applicable to the human body and related to animals, in addition, the juxtaposition of known inventions or mixtures of known products, its change of use, shape, dimensions or materials, except that is actually a combination or merger so that they can not function separately or that the qualities or characteristics of these functions are modified to obtain an industrial result or use not obvious to a person skilled in the art.

What can not be patented

• Essentially biological processes for production, reproduction and / or propagation of plants and animals.

• The biological and genetic material as found in nature.

• Animal breeds.

• The human body and the living parts that compose it.

• Plant varieties and minerals.

Duration of patent

The validity of the patent depends on the country. In Mexico are valid for 20 years non-renewable and utility models are valid for 10 years also extended. When the patent expires or utility model, likewise the protection expires and the invention enters the public domain, ie, the owner no longer have exclusive rights to the invention, which becomes available for commercial exploitation by third parties .

The exclusive right of exploitation of the patented invention gives its owner the following privileges:

• If the subject matter of the patent is a product, the right to exclude others from making, using, selling, offering for sale or importing the patented product, without consent, and

• If the subject matter of the patent is a process, the right to prevent others from using that process and using, selling, offering for sale or importing the product obtained directly by that process, without their consent.

The operation performed by the person referred to in Article 69 of this Law shall be effected by the patentee.

Priority. When applying for a patent after it in other countries may be recognized as the priority date of filing in that it came first, provided it is present in Mexico within the time limits determined by international treaties or, failing that, within twelve months following the patent application in the country of origin.

Right of the inventor

In all cases, and inventors have this right:

• Recognition by name

• Apply for patent

Right of exploitation

The patentee has what is called a negative right on the patented technology. This right allows you to prevent third parties without your consent:

• Making, using, selling or importing the patented product.

• Using the patented process, and using, selling or importing the product of that process.

The owner may allow some of the activities above a certain person or company, granting a license and receiving a payment which is known as royalty. You can also transfer the ownership of the patent or assign his right, through a fixed payment. After this, the original owner no longer has anything to do with the exploitation of that patent.

Inventions and free labor

Employees' inventions belong to the company, free inventions to the inventor. If the inventor has a working relationship with an employer, Article 14 of the LPI refers to Article 163 of the Federal Labor Law, which states:

CHAPTER V. Inventions workers

Article 163 The allocation of rights to the name and ownership and exploitation of inventions made in the company, shall be governed by the following rules:

• The inventor shall be entitled to have his name appear as author of the invention.

• When the worker is engaged in research or development of the procedures used in the company, its account ownership of the invention and the right to exploit the patent shall correspond to the pattern. The inventor, regardless of salary which would have received, is entitled to additional compensation, determined by agreement of the parties or by the Board of Conciliation and Arbitration where the importance of the invention and the benefits they can bring to the pattern of all proportion with the salary received by the inventor.

• Otherwise, ownership of the invention correspond to the person or persons who conducted, but the employer will have a preferential right, other things being equal, the exclusive use or acquisition of the invention and related patents.

Industrial Property Law Publication 1991 (17 years) - Last modified 2006 (3 years ago)

Patents in Europe

Patents in the European Union are based on two systems: the national and European patent. Neither has legislation behind. National patents were first to appear. These patents have been harmonized de facto in all countries of the Union, all EU members have signed the Union Convention of Paris for intellectual property protection (20 March 1883) And TRIPS (Trade-Related Aspects of Intellectual Property Rights) Or, by its Spanish acronym TRIPS Aspects of Intellectual Property Rights Trade-Related) On 15 April 1994.

The European patent is based on the European Patent Convention (CPE or Munich Convention) of 1973. The CPE provides rights in many countries as the applicant wishes. This gives great flexibility. The CPE does not provide a court at European level but that national courts are the ones who solve the problems that arise. Nothing prevents the courts settle various applications made to them differently. The EPC established the European Patent Office to manage European patents.

On 24 July 1997 the European Commission introduced Green Paper on the Community patent and the patent system in Europe.^[1] As a result of discussion initiated by this paper the commission developed a communication to the European CouncilThe European Parliament and Economic and Social Committee on the Green Paper. In this communication the Commission proposed various initiatives and legislation on the Community patent. On 5 July 2000 the Commission presented a proposal for a council regulation on the Community patent (COM (2000) 412 final). The Council hopes that this proposal be adopted as soon as possible but it seems easy.

There is a common procedure that allows centrally apply for a patent, which further processing can potentially lead to a set of patents in many countries, is called the PCT procedure. The PCT procedure may be followed directly as a national patent application or European application before the European Patent Office. PCT siginifica Co-operation Treaty patent.

The Community patent

The Community patent system proposed by the Commission must live with the systems in use (national systems and the EPC). The consistency between these systems is achieved through the accession of the EU to Munich Convention. The EPO is the organization responsible for examining patent and grant a Community patent. The EPO would continue doing the same job forever.

The main features of the Community patent are unity and autonomy. Only be granted, transmit, revoke or expire for the entire community and can only be subject to the proposed legislation and the general EU law. The CPE shall regulate the procedure for granting of patents and patentability requirements of the Community patent. This patent is ultimately, a European patent within the meaning of the Munich Convention on the application area is the entire community.

Today, the average cost of a European patent (for eight countries) is approximately EUR 30,000. The cost of translation takes about 39% of the total. The proposal of the commission seeks to reduce the cost of the patent by reducing the cost of translation and procedure.

To reduce the cost of translating the proposal requires the translation of the patent application to a single working language of the EPO and two additional translations of the claims to the other two. Thus, translating a full patent to all Community languages would cost € 17,000, the three EPO languages, 5,100 €, and, as proposed by the commission, € 2,200. Clearly it is much cheaper.

Another proposal of the commission is to equalize the cost of procedures with those of major trading partners. The European patent is three times more expensive than Japanese and nearly five times more expensive than the U.S.. As he examines the EPO patents and the fares are set by the Munich Convention the Commission can not change them. But if you can adjust the costs of renovation and makes approaching the European patent to the Japanese and American.

To resolve the legal problems that arise around the patents the Commission proposes the creation of a Community Court on Intellectual Property. This would ensure uniformity in the law and jurisprudence.

The birth of the Community patent has been very difficult. An issue as important as industrial property is not easily bypassed by the member states. Although the Commission is working hard to get approval of the proposal has not yet been achieved.

Patents and Computer Programs in Europe:

The software patents not an easy point and there are two conflicting opinions about them: patents will help develop the European software industry and patents impede its development. The third option, leave things as they are, also is being championed by some companies such as IBM. On the one hand the Commission, BSA and major software companies (European and, mostly, non-European). Across the community OS/FS represented mainly by Eurolinux and major SMEs European world of computing. It is not a trivial legislation. Patents can totally change the game for software development and especially software development OS / FS. If Europe, And the Commission, will software bet on OS / FS must think carefully about patent law.

The European Parliament, in its directive 11979/1/04 7 March 2005 stated:

Furthermore, U.S. allows software patents, however makes a distinction between inventing and patenting in the rules, it makes legal confrontations are much higher than those present in other countries. Who found to have been the inventor of a product will have precedence over who patented it. In Latin America the software patent is a low and most developed countries makes software intellectual treatment in both registration as their invention or idea is using the regulatory frameworks for literary works.

Legislation:

The basic legal principles on the patentability of computer programs are twofold:

Computer programs "as such" are not patentable in accordance with the Article 52 of the CPE. Bound by that treaty, national laws reproduce this article in one form or another.

Patents are granted for inventions that have novelty, inventive and have a industrial application.

Based on the principles of what is not patentable and what is not considered an invention above, various European courts have ruled that a technical invention that uses a computer program is patentable. The first and most important of these examples come from two decisions of the Technical Board of Appeal of the European Patent Office, Both involving IBM. The Chamber came to the following important conclusion:

Today, in Europe there are around 15,000 patents for computer programs and approximately 75% of them are large software companies outside Europe.

On 6 July 2005 with an overwhelming majority of 648 of the 680 possible votes, the full European Parliament rejected the software patents directive^[2] sending a clear message against software patentability "as such" in Europe.

As its name suggests, the Patent Cooperation Treaty Patent Cooperation is an international agreement on patents. In fact, it is essentially a treaty aimed at streamlining and put under the sign of cooperation filing patent search and examination, and the dissemination of technical information contained in the applications. The Treaty provides for the grant of "international patents": the task and responsibility of granting patents is uniquely to each of the patent offices of countries where protection is sought office or acting on behalf of these countries (the designated offices). The PCT does not enter into competition with the Paris Convention, but complements it. Actually, this is a special agreement under the Paris Convention and is only open to States already party to that Convention.

Main objectives of the PCT The main objective of the PCT is to simplify, make more effective and more economical from the point of view of users of the patent system and the offices responsible for administering "the procedure for applying for patent protection for inventions when you want to get this protection in several countries.

Establishes an international system of a single patent office (the "Receiving Office") for filing a single application (the "international application"), written in one language, was deployed in each of the countries parties to the Treaty The applicant mentioned ( "designated") at its request;

It has examined the form of an international application for a single patent office, the receiving office;

Subjects each international application to an international search that leads to the establishment of a report that the relevant elements of prior art (mainly published patent documents relating to previous inventions) which may be taken into account in determining whether the invention is patentable; this report is delivered first to the applicant and subsequently to other interested parties;

Provides the centralized international publication of international applications and international search reports and communication to designated Offices and

It foresees the possibility of submitting the application to an international preliminary examination, which provides a report to the offices to be established whether or not to grant a patent, and the applicant, issuing an opinion on the question of whether the invention for which protection is claim meets certain international criteria for patentability.

Basic documents for filing patent applications

• Application duly completed and signed by four points.

• Proof of payment of the fee. Original and 2 copies.

• Description of the invention (in triplicate).

• Claims (in triplicate).

• Drawing (s) Technician (s) (in triplicate), as appropriate.

• Summary description of the invention (in triplicate).

On average the processing of a patent, from entering the application until it issued an opinion concluding either a license or not, is 3 to 5 years.

The exclusive right granted by a patent is territorial.

How a request is made? How does it occur?

A patent application consists of a specification of the invention, examples of how to conduct, drawings (if any) and a chapter grievance, which consists of clauses that describe the invention and which are those described The object of the invention, and which bears the legal protection of it. For industrial designs and utility models, an application consists of the specification, drawings and claims. It comes in the Mexican Institute of Industrial Property at its headquarters or regional offices, filling out the application form and submitted the specification to obtain a filing date. An application for a patent or industrial design registration or utility model must be processed before the IMPI, can be processed by the applicant himself or through a legal representative. The application must be submitted to an examination of form and substantive examination.

The right acquired by a patent or registration of industrial designs and utility model, is an exclusive right of exploitation, determined by the claims approved. If a third party uses, manufactures, uses or sells the invention or industrial design or utility model protection, violates the exclusive right of the holder, so this injury may sue their right, but until the patent or registration has been granted, retroactive to the date of filing. When requesting a patent or industrial design registration or utility model, is an expectation of rights, the right is acquired until the patent or registration is granted by the GRI, but the law takes effect once acquired from the date of filing or priority in their case. For the processing of patent application, the applicant should consider in advance that to achieve this patent an invention must meet three basic requirements (Article 12 of the IPA):

• Arrivals (worldwide)

• Inventive step (that innovations are not obvious to someone with knowledge in the area)

• Industrial Application (the invention to be made or used in any branch of economic activity)

Patent protection is 20 years and is extendible territorial type, ie is only valid where granted. There is no global or international patent. You must fill out a form of Patent Application for Title and writing a description of the invention, to this respect certain rules as:

• Include a title in the invention should be descriptive of what the invention is or does and to be the same as that stated in the application form.

• Technical field to which the invention relates.

• Cite the technical information related to the invention.

• When performing a prior art search, you can cite references in the description.

• Detailed explanation of the invention.

• The rows of all pages must be numbered less than 5 at 5.

• Figures should be described briefly.

• Description of at least one way of carrying out the invention.

• The pages must be numbered consecutively and the numeral should be centered in either the top or bottom.

• In the preamble of claims indicates that is what you want to protect.

• In characterizing the technical specifications indicated they do differently what we want to protect what already exists.

• The dependent claim refers to all the technical features that have been mentioned in the previous claim.

• The summary description of the invention will contain between 100 and 200 words.

• The drawings are no text. The graphs, diagrams of the steps of a procedure and diagrams are considered drawings. The figures are numbered consecutively.

• The leaves of the figures are numbered without following the order of the other annexes of the application.

The utility model is applicable to improving a tool, machine or mechanical or electrical device that already exists. Does not apply to an invention chemistry, biotechnology or process. The utility model protection is 10 years and is extendible territorial type, ie is only valid where granted. With the industrial design registration protects only the ornamental appearance of the object or drawing, that is, it protects the outer form of it, not use, or useful materials. Industrial design protection is 15 years extended. In this part, neither the title nor the description should contain technical information for the design.

Before joining any application for invention is recommended that you perform the search technology (independent of the application process of invention), as one of the requirements is to protect something that is new to the country and anywhere in the world. In the case of a same or similar invention, the title or registration can not be granted, however, can be exploited commercially if that has not previously existing national protection.

References

1. ↑ Green Paper on the Community patent and the patent system in Europe (COM (97) 314 final)
2. ↑ Parliament rejected completely the software patent directive

See also

• List of countries by patenting
• Intellectual Property
• Software Patent
• Spanish Patent and Trademark (SPTO)
• European Patent Office (EPO)
• Directive on the patentability of computer implemented inventions

External Links

[1][2]

• Portal WIPO patents and international patent system
• Software Patents
• Ten reasons to oppose software patents
• Patentability of logic functions
• Saving Europe from Software Patents (RMS)
• European Legislation and the Open Source / Free Software
• Patent File History: Search records between 1878 and 1966 - SPTO
• YourInvent.com - web where inventors can display patents of inventions to the world
• How software patents stifle business on the web