( or ) is a set of exclusive rights
granted by a state
(national government) to an inventor
or their assignee for a limited period of
in exchange for a public disclosure of an invention
The procedure for granting patents, the 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 claim
invention which must be new
or industrially applicable
. In many
countries, certain subject
are excluded from patents, such as business methods
and mental acts. The
exclusive right granted to a patentee in most countries is the
right to prevent others from making, using, selling, or
distributing the patented invention without permission.
Under the World Trade
Agreement on Trade-Related Aspects of Intellectual Property
, patents should be available in WTO member states for
any inventions, in all fields of technology, and the term of
protection available should be the minimum twenty years. Different
types of patents may have varying patent
The term patent
usually refers to a right granted to
anyone who invents or discovers any new and useful process,
machine, article of manufacture, or composition of matter, or any
new and useful improvement thereof. The additional qualification
is used in the United States to distinguish
it from other types of patents (e.g. design patents) but should not
be confused with utility models
granted by other countries. Examples of particular species of
patents for inventions include biological patents
, business method patents
, chemical patents
and software patents
Some other types of intellectual property rights are referred to as
in some jurisdictions: industrial design rights
in some jurisdictions (they protect the
visual design of objects that are not purely utilitarian), plant breeders' rights
called plant patents
, and utility models or Gebrauchsmuster
are sometimes called
or innovation patents
. This article
relates primarily to the patent for an invention, although
so-called petty patents and utility models may also be granted for
Certain grants made by the monarch in pursuance of the royal
prerogative were sometimes called letters patent
, which was a government
notice to the public of a grant of an exclusive right to ownership
and possession. These were often grants of a patent-like monopoly
and predate the modern origins of the patent system. For other uses
of the term patent
, which were land grants by early state governments in
the USA. This reflects the original meaning of letters
that had a broader scope than current usage.
The word patent
originates from the Latin patere
, which means "to lay open"
(i.e., to make available for public inspection), and more directly
as a shortened version of the term letters patent
, which originally denoted
an open for public reading royal decree
granting exclusive rights to a person.
Patents granted, 1790–2008.
In 500 BC,
in the Greek city of Sybaris (located in
what is now southern Italy), "encouragement was held out to all who
should discover any new refinement in luxury, the profits arising
from which were secured to the inventor by patent for the space of
Florentine architect Filippo
Brunelleschi received a three year patent for a barge with
hoisting gear, that carried marble
along the Arno
River in 1421.
the modern sense originated in 1474, when the Republic of
Venice enacted a decree by which new and inventive
devices, once they had been put into practice, had to be
communicated to the Republic in order to obtain the right to
prevent others from using them.
Patents in force in 2000
England followed with the Statute of Monopolies
under King James I
declared that patents could only be granted for "projects of new
invention." During the reign of Queen Anne
(1702–1714), the lawyers of
the English Court developed the requirement that a written
description of the invention must be submitted. The patent system
in many other countries, including Australia, is based on British
law and can be traced back to the Statute of Monopolies.
In France, patents were granted by the monarchy and by others
institutions like the "Maison du Roi". The Academy
Examinations were generally done in secret with no requirement to
publish a description of the invention. Actual use of the invention
was deemed adequate disclosure to the public. The modern French
patent system was created during the Revolution in 1791. Patents
were granted without examination since inventor's right was
considered as a natural one
In the United States, during the so-called colonial period and
Articles of Confederation
years (1778–1789), several states adopted patent systems of their
own. The first Congress adopted a Patent Act
, in 1790, and the first patent
was issued under this Act on July 31, 1790
(to Samuel Hopkins
of Vermont for a
A patent is not a right to practice or use the invention. Rather, a
patent provides the right
from making, using, selling, offering for sale, or
importing the patented invention
term of the patent
, which is usually
20 years from the filing date subject to the payment of maintenance fees
. A patent is, in
effect, a limited property right that the government offers to
inventors in exchange for their agreement to share the details of
their inventions with the public. Like any other property right, it
may be sold, licensed, mortgaged
or transferred, given away, or simply abandoned.
The rights conveyed by a patent vary country-by-country. For
example, in the United States, a patent covers research, except
"purely philosophical" inquiry. A U.S. patent is infringed by any
"making" of the invention, even a making that goes toward
development of a new invention — which may itself become subject of
A patent being an exclusionary right does not, however, necessarily
give the owner of the patent the right to exploit the patent. For
example, many inventions are improvements of prior inventions which
may still be covered by someone else's patent. If an inventor takes
an existing, patented mouse trap
adds a new feature to make an improved mouse trap, and obtains a
patent on the improvement, he or she can only legally build his or
her improved mouse trap with permission from the patent holder of
the original mouse trap, assuming the original patent is still in
force. On the other hand, the owner of the improved mouse trap can
exclude the original patent owner from using the improvement.
Some countries have "working provisions" which require that 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.
can generally only be enforced through civil
lawsuit (for example, for a U.S. patent, by an action for
patent infringement in a United States federal court), although
some countries (such as France and Austria) have
criminal penalties for wanton infringement.
patent owner will seek monetary compensation for past infringement,
and will seek an injunction
the defendant from engaging in future acts of infringement. In
order to prove infringement, the patent owner must establish that
the accused infringer practices all of the requirements of at least
one of the claims of the patent (noting that in many jurisdictions
the scope of the patent may not be limited to what is literally
stated in the claims, for example due to the "doctrine of equivalents
An important limitation on the ability of a patent owner to
successfully assert the patent in civil litigation is the accused
infringer's right to challenge the validity of that patent. Civil
courts hearing patent cases can and often do declare patents not
valid. The grounds on which a patent can be found not valid are set
out in the relevant patent legislation and vary between countries.
Often, the grounds are a subset of the requirements for patentability
in the relevant country. Whilst
an infringer is generally free to rely on any available ground of
invalidity (such as a prior
, for example), some countries have sanctions to
prevent the same validity questions being relitigated. An example
is the UK Certificate
of contested validity
The vast majority of patent rights, however, are not determined
through litigation, but are resolved privately through patent
licensing. Patent licensing agreements
in which the patent
owner (the licensor) agrees to forgo their right to sue the
licensee for infringement of the licensor's patent rights, usually
in return for a royalty or other compensation. It is common for
companies engaged in complex technical fields to enter into dozens
of license agreements associated with the production of a single
product. Moreover, it is equally common for competitors in such
fields to license patents to each other under cross-licensing
agreements in order to share
the benefits of using each other's patented inventions.
In most countries, both natural persons and corporate entities may
apply for a patent. In the United States, however, only the
inventor(s) may apply for a patent although it may be assigned
to a corporate entity subsequently
and inventors may be required to assign inventions to their
employers under a contract of employment. In most European
countries, ownership of an invention may pass from the inventor to
their employer by rule of law if the invention was made in the
course of the inventor's normal or specifically assigned employment
duties, where an invention might reasonably be expected to result
from carrying out those duties, or if the inventor had a special
obligation to further the interests of the employer's
The inventors, their successors or their assignees become the
proprietors of the patent when and if it is granted. If a patent is
granted to more than one proprietor, the laws of the country in
question and any agreement between the proprietors may affect the
extent to which each proprietor can exploit the patent. For
example, in some countries, each proprietor may freely license or
assign their rights in the patent to another person while the law
in other countries prohibits such actions without the permission of
the other proprietor(s).
The ability to assign ownership rights increases the liquidity
of a patent as property.
Inventors can obtain patents and then sell them to third parties.
The third parties then own the patents and have the same rights to
prevent others from exploiting the claimed inventions, as if they
had originally made the inventions themselves.
The grant and enforcement of patents are governed by national laws,
and also by international treaties, where those treaties have been
given effect in national laws. Patents are, therefore, territorial
Commonly, a nation forms a patent
with responsibility for operating that nation's patent
system, within the relevant patent laws. The patent office
generally has responsibility for the grant of patents, with
infringement being the remit of national courts.
There is a trend towards global harmonization of patent laws, with
the World Trade
(WTO) being particularly active in this area. The
has been largely successful in providing a
forum for nations to agree on an aligned set of patent laws.
Conformity with the TRIPs agreement is a requirement of admission
to the WTO and so compliance is seen by many nations as important.
This has also led to many developing nations, which may
historically have developed different laws to aid their
development, enforcing patents laws in line with global
A key international convention relating to patents is the Paris
Convention for the Protection of Industrial Property
signed in 1883. The Paris Convention sets out a range of basic
rules relating to patents, and although the convention does not
have direct legal effect in all national jurisdictions, the
principles of the convention are incorporated into all notable
current patent systems. The most significant aspect of the
convention is the provision of the right to claim priority
: filing an application in any one
member state of the Paris Convention preserves the right for one
year to file in any other member state, and receive the benefit of
the original filing date. Because the right to a patent is
intensely date-driven, this right is fundamental to modern patent
The authority for patent statutes in different countries varies. In
the UK, substantive patent law is contained in the Patents Act 1977
as amended. In the United States, the Constitution
to make laws to "promote the
Progress of Science and useful Arts..." The laws Congress passed
are codified in Title
35 of the United States Code
and created the United States Patent
and Trademark Office
In addition, there are international treaty procedures, such as the
procedures under the European
(EPC) [administered by the European Patent Organisation
(EPOrg)], and the Patent
(PCT) (administered by WIPO
and covering more than 140 countries), that
centralize some portion of the filing and examination procedure.
Similar arrangements exist among the member states of ARIPO
the analogous treaties among African countries, and the nine
that have formed the Eurasian Patent
Application and prosecution
A patent is requested by filing a written application
at the relevant patent
office. The application contains a description of how to make and
use the invention that must provide sufficient detail
for a person
skilled in the art (i.e., the relevant area of technology) to make
and use the invention. In some countries there are requirements for
providing specific information such as the usefulness of the
invention, the best mode
of performing the
invention known to the inventor, or the technical problem
or problems solved by
the invention. Drawings illustrating the invention may also be
The application also includes one or more claims, although it is
not always a requirement to submit these when first filing the
application. The claims set out what the applicant is seeking to
protect in that they define what the patent owner has a right to
exclude others from making, using, or selling, as the case may be.
In other words, the claims define what a patent covers or the
"scope of protection".
After filing, an application is often referred to as "patent pending
." While this term does not
confer legal protection, and a patent cannot be enforced until
granted, it serves to provide warning to potential infringers that
if the patent is issued, they may be liable for damages.
For a patent to be granted, that is to take legal effect in a
particular country, the patent application must meet the patentability
requirements of that country.
Most patent offices examine the application for compliance with
these requirements. If the application does not comply, objections
are communicated to the applicant or their patent agent or attorney
and one or more
opportunities to respond to the objections to bring the application
into compliance are usually provided.
Once granted the patent is subject in most countries to renewal fees
to keep the patent in
force. These fees are generally payable on a yearly basis, although
the US is a notable exception. Some countries or regional patent
offices (e.g. the European Patent Office) also require annual
renewal fees to be paid for a patent application before it is
There are four primary incentives embodied in the patent system: to
invent in the first place; to disclose the invention once made; to
invest the sums necessary to experiment, produce and market the
invention; and to design around
improve upon earlier patents.
- Patents provide incentives for economically efficient research and development (R&D).
Many large modern corporations have
annual R&D budgets of hundreds of millions or even billions of
dollars. Without patents, R&D spending would be significantly
less or eliminated altogether, limiting the possibility of
technological advances or breakthroughs. Corporations would be much
more conservative about the R&D investments they made, as third
parties would be free to exploit
any developments. This second justification is closely related to
the basic ideas underlying traditional property rights.
- In accordance with the original definition of the term
"patent," patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of
patents, in many cases, they would prefer or tend to keep their
inventions secret. Awarding patents generally makes the details of
new technology publicly available, for exploitation by anyone after
the patent expires, or for further improvement by other inventors.
Furthermore, when a patent's term has
expired, the public record ensures that the patentee's idea is not
lost to humanity.
- In many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering
costs — computer processors, software, and pharmaceuticals for
example), once an invention exists, the cost of commercialization
(testing, tooling up a factory, developing a market, etc.) is far
more than the initial conception cost. (For example, the internal
"rule of thumb" at several computer companies in the 1980s was that
post-R&D costs were 7-to-1). Unless there is some way to
prevent copies from competing at the marginal cost of production,
companies will not make that productization investment.
One effect of modern patent usage is that a small-time inventor can
use the exclusive right status to become a licensor. This allows
the inventor to accumulate capital from licensing the invention and
may allow innovation to occur because he or she may choose to not
manage a manufacturing buildup for the invention. Thus the
inventor's time and energy can be spent on pure innovation,
allowing others to concentrate on manufacturability.
Some of the costs to society associated with the granting of a
patent are: the immediate costs associated with preparing the
patent; patent office work; legal costs associated with prosecuting
alleged infringements; business costs associated with those legal
actions; increasing the cost of determining whether a method is
covered by an existing patent, and reduced certainty in the result;
restrictions on the use of the patented method (particularly in
cases where the method is redeveloped independently).
The costs of preparing and filing a patent application, prosecuting
it until grant and maintaining the patent vary from one
jurisdiction to another, and may also be dependent upon the type
and complexity of the invention, and on the type of patent.
The European Patent Office estimated in 2005 that the average cost
of obtaining a European patent (via a Euro-direct application, i.e.
not based on a PCT application) and maintaining the patent for a 10
year term was around 32 000 Euro. Since the London Agreement
entered into force
on May 1, 2008, this estimation is however no longer up-to-date,
since fewer translations are required.
In the United States, direct legal costs of patent litigation are
on average in the order of a million dollars per case, not
including associated business costs, based on an American
Intellectual Property Law Association
(AIPLA) survey of patent
lawyers (2005), and court documents for a sample of 89 court cases
where one side was ordered to pay the other side's legal
Patents have been criticized for being granted on already-known
inventions. In 1938, R. Buckminster Fuller
wrote of the patent
application process in the United States:
At present, the files, are so extraordinarily complex
and the items so multitudinous that a veritable army of
governmental servants is required to attend them and sort them into
some order of distinguishable categories to which reference may be
made when corresponding with patent applicants for the purposes of
examiner citation of "prior art" disclosure.
This complexity makes it inevitable that the
human-equation involved in government servants relative to
carelessness or mechanical limitations should occasion the granting
of multitudes of "probably" invalid patent claims.
Patents have also been criticized for conferring a "negative right"
upon a patent owner, permitting them to exclude competitors from
using or exploiting the invention, even if the competitor
subsequently develops the same invention independently. This may be
subsequent to the date of invention, or to the priority date
, depending upon the relevant
patent law (see First
to file and first to invent
Patents may hinder innovation as well in the case of "troll"
entities. A holding company, pejoratively known as a "patent troll
", owns a portfolio of patents, and
sues others for infringement of these patents while doing little to
develop the technology itself.
Another theoretical problem with patent rights was proposed by law
and Rebecca Sue Eisenberg. Based on Heller's theory of
the tragedy of the
, the authors argued that intellectual property
rights may become so fragmented that, effectively, no one can take
advantage of them as to do so would require an agreement between
the owners of all of the fragments.
Pharmaceutical patents prevent generic alternatives to enter the
market until the patents expire, and thus maintains high prices for
medication. This can have significant effects in the developing
world, as those who are most in need of basic essential medicines
are unable to afford such high priced pharmaceuticals. Critics also
question the rationale that exclusive patent rights and the
resulting high prices are required for pharmaceutical companies to
recoup the large investments needed for research and development.
One study concluded that marketing expenditures for new drugs often
doubled the amount that was allocated for research and
In one response to these criticisms, one review concluded that less
than 5 percent of medicines on the World Health Organization
of essential drugs are under patent. Also, the pharmaceutical
industry has contributed US$2 billion for healthcare in developing
countries, providing HIV/AIDS drugs at lower cost or even free of
charge in certain countries, and has used differential pricing and
parallel imports to provide medication to the poor. Other groups
are investigating how social inclusion and equitable distribution
of research and development findings can be obtained within the
existing intellectual property framework, although these efforts
have received less exposure.
- Patents: Frequently Asked Questions,
Property Organization, Retrieved on 22 February 2009
- Article 27.1. of the TRIPs Agreement.
- U.S. Patent Activity 1790 to the Present
Anthon, A Classical Dictionary: Containing An Account Of
The Principal Proper Names Mentioned in Ancient Authors, And
Intended To Elucidate All The Important Points Connected With The
Geography, History, Biography, Mythology, And Fine Arts Of The
Greeks And Romans Together With An Account Of Coins, Weights, And
Measures, With Tabular Values Of The Same, Harper & Bros,
1841, page 1273.
- Christine MacLeod, Inventing the Industrial Revolution: The
English Patent System, 1660-1800, Cambridge University Press,
2002, ISBN 0521893992, 9780521893992, page 11.
- Helmut Schippel: Die Anfänge des Erfinderschutzes in Venedig,
in: Uta Lindgren (Hrsg.): Europäische Technik im Mittelalter. 800
bis 1400. Tradition und Innovation, 4. Aufl., Berlin 2001,
S.539-550 ISBN 3-7861-1748-9.
- Nowotarski, Bakos, “A Short History of Private
Patent Examination”, Insurance IP Bulletin Oct. 2009
- Frank D. Prager, “Proposals for the Patent Act of 1790",
Journal of the Patent and Trademark Office Society, March
1954, vol XXXVI, No. 3, pp 157 et Seq., citing J. Isore in
Revue Historique de Droit Francais, 1937 pp. 117 et
- Gabriel Galvez-Behar, La République des inventeurs.
Propriété et organisation de l'innovation en France,
1791-1922, Presses universitaires de Rennes, 2008, ISBN
- "A patent is not the grant of a right to make or use or sell.
It does not, directly or indirectly, imply any such right. It
grants only the right to exclude others. The supposition that a
right to make is created by the patent grant is obviously
inconsistent with the established distinctions between generic and
specific patents, and with the well-known fact that a very
considerable portion of the patents granted are in a field covered
by a former relatively generic or basic patent, are tributary to
such earlier patent, and cannot be practiced unless by license
thereunder." - Herman v. Youngstown Car Mfg. Co., 191 F.
579, 584-85, 112 CCA 185 (6th Cir. 1911)
- Article 33 of the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS)
- DLA Piper Rudnick Gray Cary
(2005) Patent Litigation across Europe, handout available
as per this link.
- See Section 39 of the UK Patents Act as an example.
The laws across Europe vary from country to country but are
- Article 28.2 TRIPs: "Patent owners shall
also have the right to assign, or transfer by succession, the
patent and to conclude licensing contracts.".
- United Kingdom law requiring no explicit authority due to the
Supremacy of Parliament.
- IP Australia website, What does 'patent pending' mean?,
Consulted on August 5, 2009.
- USPTO web site, Patent Marking and "Patent Pending"
(Excerpted from General Information Concerning Patents print
brochure), Consulted on August 5, 2009.
- UK Intellectual Property
Office web site, Display your rights, (under "IPO
Home> Types of IP> Patents> Managing your patents>
Using and enforcing") Consulted on August 5, 2009.
- Howard T. Markey (chief judge of the United States Court of
Customs and Patent Appeals and later of the Court of Appeals for
the Federal Circuit), Special Problems in Patent Cases, 66
F.R.D. 529, 1975.
- Stim, Rishand, "Profit from Your Idea: How to Make Smart
Licensing Decisions", ISBN 1413304508 (Published 2006)
- With the following assumptions: "18 pages (11 pages
description, 3 pages claims, 4 pages drawings), 10 claims, patent
validated in 6 countries (Germany, United Kingdom, France, Italy,
Spain, Switzerland), excl. in-house preparation costs for the
patentee" (the costs relate to European patents granted in
2002/2003), in European Patent Office, The cost of a sample European patent - new
estimates, 2005, p. 1.
- . The containing chapter (‘The Costs of Disputes’) also tries
to quantify associated business costs.