Intellectual property #3 Flashcards
Describe national route of obtaining a patent and discuss advantages and disadvantages
- application via national office
a. request = directed to minister of economy
b. description of invention, drawings, claims - payment of costs (filing+patent attorney)
- formal examination
- filing date/priority date
- substantive examination (if you asked, by EPO, purely informative, validity conditions)
- 18 months after filing = published, patent granted ASAP through ministrial decision
- result = patent only valid in Belgium, enforcement via national courts, disputes on validity and infringement handeled nationally
disadvantage: expensove, inefficient, risk of diverging outcomes
Can output created by an AI-driven system obtain protection under patent law?
NO.
-mention validity conditions
-mention Inventor principle: rights to paternity → right to a patent in principle belong originally to the inventor
(1) The applications fail at the formal stage because you have to fill in the name of the inventor
(2) although not literally expressed, there are suggestions in the law that express the inventor is deemed to be a person
- inventor principle as a first owner
- in the law about co-invention there is a reference to ‘’persons’’ so implies that inventor should be humans
- right to attribution also suggests humans
- general argument: the right to protection of IP is seen as a human right. right to property is seen as a human right and right to intellectual property as a part thereof
Example AI-driven output (patent law)
Example: Dabus creativity machine, neural network to simulate human creativity, computer program can be patented provided that it has additional technical, link to the real world. question : if this machine make something, can it qualify as an inventor?
2 specific inventions:
shape that can form a heat resistant bowl and that is very easy to hold (has a lot of grip),
light that flickers at timing a bit faster than the average speed of thought of the human brain, designed to attract enhanced attention.
Both failed at the formal stage of application because the name iof the inventor shoudl be human.
Discuss two approaches to claim interpretation
- Angora cat
-UK approach:
focus on legal certainty of third party. if it is in the claims, it is protected. outside is not
very strict interpretation.
claims are a ‘fence post’ so there is a very clear border: if it is not in the claims literally, it is not protected.
advantage: legal certainty to third parties: you know what you can / cannot do to avoid infringement. - German approach:
focus on the rights of the patentee.
claims are a directive.
may be beneficial to the patent holder
consequence = non-literal interpretation adn focus on the inventivess. stimualtes innovation, bigger scope of protection.
What types of infringmenet
Direct infringement (literal infringement and infringement by equivalance) and indirect infringement
Direct infringement
Two distinctions: in product patents and process patents , AND literal infringement and infringement by equivalance
conditions for infringmeent by equivalance?
patented subject matter is not identically present in infringer’s product/process,
but replaced by means (1) having essentially the same function, (2) achieved in
essentionally the same way, (3) with essentially the same technical result
indirect infringement
requires material element and moral element
material element
first condition for indirect infringement: offer / supply by indirect infringer to a third party of “means
relating to an essential element of the invention” for putting the invention into
effect within a certain territoryrs
moral element
second condition for indirect indirect infringer knows / should have known that the means are suitable and
intended for this putting into effect
examples of indirect infringement?
(1) Pemetrexed disodium and pemetrexed diacid (reconstitution by pharmacists) –> material element, yes, moral element, no
(2) selling of coffee pads for senseo machine material element, yes, moral element, yes
describe european route and discuss disadvantages
-uniform application at EPO
-basis: EPC
- applies to 39 countries (27 EU / 12 non EU)
-results = bundle of national patents
-applicatable law = national
language = official (ENG/GERM/FRENCH) or own language with translation 2 months
-formal&substantive examination by EPO
-Boards of Appeal/Enlarged Boards of Appeal
-timeline
EU route
-2012 –> 2 regulations + UPC
-1 application + 1 grant procedure before EPO
- uniform rules on validity and infringement
-only countries in EU except Spain&Croatia
-result = European patent with unitary effect
what is EPC
European Patent Convention, laid down unifrom rules on subject matter, basic validity conditions and the procedure of obtaining a patent
what is UPC
Unitary Patent Court (established in 2012), rules around registration as well as the scope of protection were established
