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Patent Exam Flashcards

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1
Q

What is an inttelectual property rights?

A

a. Copyright and Related Rights
b. Trademarks and Service Marks;
c. Geographic Indications;
d. Industrial Designs;
e. Patents;
f. Layout-Designs (Topographies) of Integrated Circuits; and
g. Protection of Undisclosed Information (n, TRIPS)

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2
Q

Difference between copyright, trademark, and patent

A

Copyright- Copyright laws grant authors, artists, and other creators automatic protection for their literary and artistic creations, from the moment they create it.
- Recordation or deposit of your works isn’t necessary but authors and artists may opt to execute an affidavit of ownership with the National Library or the IPOPHL for the issuance of recordation and deposit.-
The term of protection for copyright in literary and artistic works, and in derivative works is generally the lif
etime of the author plus fifty (50) years.

Trademark- i”mark” as any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise and shall include a stamped or marked container of goods.
VISIBLE
DISTINCT
-A trademark can be protected in perpetuity if regularly monitored and properly maintained.
-The period of protection is ten (10) years from the date of registration and is renewable for a period of ten (10) years at a time.

patent is a government-issued grant, bestowing an exclusive right to an inventor over a product or process that provides any technical solution to a problem in any field of human activity which is new, inventive, and industrially applicable.
- TERRITORIALITY - patents are only valid in the country or
region in which they have been granted
-  FIRST-TO-FILE –applicant who files first will get the patent
 DISCLOSURE –applicant shall disclose the invention in a
manner sufficiently clear and complete .
Quid pro quo principle – protection in exchange for
disclosure
 CONDITIONAL – patents are granted only upon compliance
with the criteria of patentability
- exclusive right to exploit the invention for 20years from the filing date, i.e. to make, use, sell or import an invention

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3
Q

What is a technology transfer agreement?

A

PROCESS by which
one party SYSTEMATICALLY TRANSFERS TO ANOTHER PARTY
a. the knowledge for the manufacture of a product
b. the application of a process, or
c.rendering of a service,
which may involve the transfer, assignment or licensing of intellectual property rights.

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4
Q

What is a patent?

A

a. government-issued grant
b. bestowing an exclusive right to an inventor over a
c. product or process that provides
- any TECHNICAL SOLUTION to a problem IN ANY FIELD OF HUMAN ACTIVITY which is
- -new,
- -inventive, and
- -industrially applicable.

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5
Q

What is the period of patent?

A

(Sec. 21, IP Code & Rule 200, IRR)
- A patent is an exclusive right (for 20 years)
granted for an invention, which is a product or a
process that provides, in general, a new way of
doing something, or offers a new technical
solution to a problem.

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6
Q

What are the non-patentable inventions?

A

NON-PATENTABLE INVENTIONS
(Sec. 22, IP Code & Rule 202, IRR) DSM, SM
1. Discoveries
2. Scientific theories
3. Mathematical methods
4. Schemes, rules and methods of
-performing mental acts
-playing games
-doing business
-programs for computers
5. Methods for treatment of the human or animal body
by surgery or therapy & diagnostic methods practised
on the human & animal body
6. Plant varieties or animal breeds or essentially
biological processes for the production of plants and
animals
7. Aesthetic creations
8. Anything which is contrary to public order or morality

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7
Q

Who owns the patent?

A 
The right to a patent belongs to the
inventor, his heirs, or assigns. **
When two (2) or more persons have jointly made an invention
--the right to a patent shall belong to them jointly
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8
Q

What is the first to file rule in patent?

A 
If two (2) or more persons have made the invention separately and independently of each other
== the right to the patent shall belong to 
-------> the person who filed an application for such invention, or

where two or more applications are filed for the same invention,
——->to the applicant who has the earliest filing date or, the earliest priority date.

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9
Q

Who owns the patent pursuant to a commission?

A

It is the person who commissions the work shall own the patent,
—-UNLESS otherwise provided in the contract.

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10
Q

In case the employee made the invention in the course of his employment contract, who shall own the patent?

A

a. The employee, if the inventive activity is NOT a part of his regular duties even if the employee uses the time, facilities and materials of the employer.
b. The employer, if the invention is the RESULT of the performance of his regularly assigned duties

–>UNLESS there is an agreement, express or implied, to the contrary.

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11
Q

What is the right of priority under the patent law?

A

Under section 31 of IPC,
- An application for patent filed by any person
who has previously applied for the same invention in another country
– which by treaty, convention, or law affords similar privileges to Filipino citizens
— shall be considered as filed as of the date of filing the foreign application

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12
Q

What is the added required in the priority date under the patent law

A

PROVIDED THAT:

a. the local application EXPRESSLY CLAIMS priority;
b. it is FILED within twelve (12) months from the date the EARLIEST foreign application was filed; and
c. a certified copy of the foreign application together with an English translation is filed within six (6) months from the date of filing in the Philippines.

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13
Q

What may file for the cancellation of patent?

A

Any interested person
upon payment of the required fee,
file petition to cancel the patent or any claim thereof, or parts of the claim.

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14
Q

What are the grounds for cancellation?

A

The following grounds:
a. That what is claimed as the INVENTION is NOT new or patentable;
b. That the patent does NOT DISCLOSE the invention in a manner
SUFFICIENTLY CLEAR AND COMPLETE for it to be carried out by any person skilled in the art; or
c. That the patent is CONTRARY to PUBLIC ORDER or MORALITY

petition for cancellation
a. shall be in writing
b. verified by the petitioner or by any person in his behalf who knows the facts, specify the grounds upon which it is based
c. include a statement of the facts to be relied upon, and filed with the Office.
Copies of printed publications or of patents of other countries, and other supporting documents mentioned in the petition shall be attached thereto, together with
the translation thereof in English, if not in the English language.

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15
Q

What is the remedy available if there is a Patent Application made by Persons Not Having the Right to a
Patent?

A

Sec. 67.1.
If a person referred to in Section 29 other than the applicant, is DECLARED BY FINAL COURT ORDER or decision as having the right to the patent, such person may, within three (3) months after the decision
has become final:
a. PROSECUTE the application AS HIS OWN application in place of the applicant;
b. FILE A NEW patent application in respect of the same invention;
c. REQUEST that the APPLICATION BE REFUSED; or
d. SEEK CANCELLATION of the patent, if one has already been issued.

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16
Q

What is her remedy of the true and actual inventor?

A

If a person, who was deprived of the patent WITHOUT HIS CONSENT OR THROUGH FRAUD is DECLARED BY FINAL COURT ORDER or decision to be the true and actual inventor, the court shall
1. ORDER FOR HIS SUBSTITUTION as patentee,
or at the option of the true
inventor
2. CANCEL the patent,
3. award actual and other damages in his favor if warranted by the circumstances.

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17
Q

What are the rights conferred by a patent?

A

A patent shall confer on its owner the following EXCLUSIVE rights:
a. Where the subject matter of a patent is a PRODUCT 1. to restrain, (R-P-P)
2. to prohibit to
3. to prevent
any unauthorized person or entity from
(MUOSI) making, using, offering for sale, selling or importing that product;
b. Where the subject matter of a patent is a PROCESS, a. to restrain,
b. to prevent or
c. to prohibit
any unauthorized person or entity from USING
the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing ANY PRODUCT OBTAINED DIRECTLY OR INDIRECTLY FROM SUCH PROCESS.

71.2. Patent owners shall also have the
a. right to assign, or
2. transfer by succession the patent, and
3.to conclude licensing contracts for the
same

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18
Q

What are the limitations of patent rights?

A

In the following circumstances, the owner of a patent has NO RIGHT to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof:

  1. USING a patented product which has been PUT ON the market in the Philippines BY THE OWNER of the product, or with his express consent,
    insofar as such use is performed after that product has been so put on the said market;
  2. Where the act is done PRIVATELY AND ON A CON-COMMERCIAL SCALE or for a
    NON_COMMERCIAL PURPOSE.
    Provided, That it does NOT SIGNIFICANTLY
    PREJUDICE the ECONOMIC INTERESTS of the owner of the patent;
  3. Where the act consists of making or using exclusively for the purpose of experiments that relate to the subject matter of the patented invention;
  4. Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance
    with a medical prescription or acts concerning the medicine so prepared;
  5. Where the invention is used in any ship, vessel, aircraft, or land vehicle of any other country entering the territory of the Philippines temporarily or accidentally: Provided, That such invention is used
    EXCLUSIVELY FOR the NEEDS of the ship, vessel, aircraft, or land vehicle and NOT used for the manufacturing of anything to be sold within the
    Philippines.
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19
Q

Who is prior user in the parlance pf patent law?

A

s. 73
Any prior user, who, IN GOOD FAITH and
was using the invention or has undertaken serious preparations to use the invention in his enterprise or business, BEFORE the filing date or priority date of the application on which a patent is granted, shall have
the RIGHT TO CONTINUE THE USE thereof as envisaged in such preparations within the territory where the patent produces its effect.

73.2. The RIGHT of the prior user MAY only be transferred or assigned TOGETHER with his enterprise or business, or with that part of his enterprise or business in which the use or preparations for use have
been made.

20
Q

What is the scope of the se of Invention by Government as a limitation of the patent rights?

A

74.1
A Government agency OR third person authorized by the Government
may EXPLOIT the invention even WITHOUT agreement of the patent owner where:
a. The PUBLIC INTEREST in particular:
national security
nutrition
health
or the development of other sectors, as determined by the appropriate agency of the government, so requires; or
b. JUDICIAL or ADMINISTRATIVE body HAD DETERMINED that the MANNER OF EXPLOITATION, by the owner of the patent or his licensee is ANTI-COMPETITIVE.

21
Q

What is patent infringement?

A

The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization

22
Q

What are the tests for patent infringement?

A

Literal infringement and doctrine of euivalents

23
Q

What is literal infringement?

A

In a literal infringement, each and every ELEMENT recited in a claim has an IDENTICAL CORRESPONDENCE in the allegedly infringing device or process.

An infringement analysis determines whether a claim in a patent literally “reads on” an accused infringer’s device or process, or covers the allegedly infringing device under the doctrine of equivalents. The steps in the analysis are:

  1. Construe the scope of the “literal” language of the claims.
  2. Compare the claims, as properly construed, with the accused device or process, to determine whether there is literal infringement.
  3. If there is no literal infringement, construe the scope of the claims under the doctrine of equivalents.
24
Q

What is the doctrine of equivalents?

A

It is a test to determine whether there is a patent infringement.
FUNCTION-MEANS and RESULT
The doctrine of equivalents provides that an infringement also takes place when a DEVICE APPROPRIATES A PRIOR INVENTION by INCORPORATING ITS INNOVATIVE CONCEPT and, ALTHOUGH WITH SOME MODIFICATION and change, PERFORMS SUBSTANTIALLY the same function in substantially the same way to achieve substantially the same result.

25
Q

What are the civil actions for infringement?

A

76.1. The making, using, offering for sale, selling, or importing a patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process without the authorization of
the patentee constitutes patent infringement.
76.2. Any patentee, or anyone possessing any right, title or interest in and to the patented invention, whose rights have been infringed, may bring a civil action before a court of competent jurisdiction
-to recover from the infringer such DAMAGESsustained thereby, plus ATTORNEY’S FEES fees AND other EXPENSES OF LITIGATION , and to secure an INJUNCTION for the protection of his rights.
76.3. If the damages are inadequate or cannot be readily ascertained with reasonable certainty, the court may award by way of damages a sum
equivalent to reasonable royalty.
76.4. The court may, according to the circumstances of the case, award damages in a sum ABOVE the amount found as actual damages sustained: Provided, That the award does NOTexceed three (3) times
the amount of such actual damages.
76.5. The court may, in its discretion, order that the infringing goods, materials and implements predominantly used in the infringement be
DISPOSED of outside the channels of commerce or DESTROYED without compensation.
76.6. Anyone who ACTIVELY INDUCES the infringement of a patent or provides the infringer with a component of a patented product or of a product produced because of a patented process knowing it to be especially adopted for infringing the patented invention and not suitable for substantial non-infringing use shall be liable as a CONTRIBUTORY INFRINGER
and shall be JOINTLY and SEVERALLY liable with the infringer.

26
Q

What is Criminal Action for Repetition of Infringement?

A

— If infringement is REPEATED by the infringer or by anyone in connivance with him AFTER finality of the judgment of the court against the infringer, the
offenders shall, without prejudice to the institution of a civil action for damages, be criminally liable therefor and, upon conviction, shall suffer imprisonment for the period of
a. not less than six (6) months but not more
than three (3) years and/or
b. a fine of not less than One hundred thousand
pesos (P100,000) but not more than Three hundred thousand pesos (P300,000), at the discretion of the court.
The criminal action herein provided shall prescribe in three (3) years from date of the commission of
the crime.

27
Q

Limitation of Action for Damages

A

. — No damages can be recovered for acts of infringement committed more than four (4) years
before the institution of the action for infringement.

28
Q

Damages; Requirement of Notice

A

Damages cannot be recovered for acts of infringement committed BEFORE the infringer had known, or had reasonable grounds to know of the patent.
It is presumed that the infringer had known of the patent if on the patented product, or on the container or package in which the article is supplied to the public, or on the advertising material relating to the patented product or process, are placed the words “Philippine Patent” with the number of the patent.

29
Q

Defenses in Action for Infringement.

A

— In an action for infringement, the defendant, in addition to other defenses available to him,
may show the INVALIDITY of the patent, or any claim thereof, on any of the grounds on which a petition of cancellation can be brought under Section 61
hereof.

  • Patent Found Invalid May be Cancelled. — In an action for infringement, if the court shall find the patent or any claim to be invalid, it shall cancel the same, and the Director of Legal Affairs upon receipt of the final judgment of cancellation by the court, shall record that fact in the register of the Office and shall publish a notice to that effect in the IPO .
30
Q

What is the purpose of VOLUNTARY LICENSING?

A
  • To encourage the transfer and dissemination of technology
  • Prevent or control practices and conditions that
    may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition and trade.
    Voluntary licensing covers all contract or agreements involving the transfer of intellectual property rights.
31
Q

What are the prohibited clauses in voluntary licensing?

A

The following provisions shall be deemed prima facie to have an adverse effect on
competition and trade:
87.1.
1. Those which impose upon the licensee the obligation to acquire from a specific source capital goods, intermediate products, raw materials, and other technologies, or of permanently employing personnel
indicated by the licensor;
87.2. Those pursuant to which the licensor reserves the right to fix the sale or resale prices of the products manufactured on the basis of the license;
87.3. Those that contain restrictions regarding the volume and structure of production;
87.4. Those that prohibit the use of competitive technologies in a nonexclusive technology transfer agreement;
87.5. Those that establish a full or partial purchase option in favor of thelicensor;
87.6. Those that obligate the licensee to transfer for free to the licensor the inventions or improvements that may be obtained through the use of the licensed technology;
87.7. Those that require payment of royalties to the owners of patents for patents which are not used;
87.8. Those that prohibit the licensee to export the licensed product unless justified for the protection of the legitimate interest of the licensor such as exports to countries where exclusive licenses to manufacture
and/or distribute the licensed product(s) have already been granted;
87.9. Those which restrict the use of the technology supplied after the expiration of the technology transfer arrangement, except in cases of early termination of the technology transfer arrangement due to reason(s) attributable to the licensee;
87.10.Those which require payments for patents and other industrial property rights after their expiration, termination arrangement;
87.11.Those which require that the technology recipient shall not contest the
validity of any of the patents of the technology supplier;
87.12.Those which restrict the research and development activities of the licensee designed to absorb and adapt the transferred technology to
local conditions or to initiate research and development programs in connection with new products, processes, or equipment;
87.13. Those which prevent the licensee from adapting the imported technology to local conditions, or introducing innovation to it, as long as it does not impair the quality standards prescribed by the licensor;
87.14.Those which exempt the licensor for liability for non-fulfillment of his responsibilities under the technology transfer arrangement and/or
liability arising from third party suits brought about by the use of the licensed product or the licensed technology; and
87.15.Other clauses with equivalent effects.

32
Q

Whata re the mandtoryprvisions in voluntary licensing

A

88.1. That the laws of the Philippines shall govern the interpretation of the
same and in the event of litigation, the venue shall be the proper court
in the place where the licensee has its principal office;
88.2. Continued access to improvements in techniques and processes
related to the technology shall be made available during the period of
the technology transfer arrangement;
88.3. In the event the technology transfer arrangement shall provide for
arbitration, the Procedure of Arbitration of the Arbitration Law of the
Philippines or the Arbitration Rules of the United Nations Commission
on International Trade Law (UNCITRAL) or the Rules of Conciliation
and Arbitration of the International Chamber of Commerce (ICC) shall
apply and the venue of arbitration shall be the Philippines or any
neutral country; and
88.4. The Philippine taxes on all payments relating to the technology
transfer arrangement shall be borne by the licensor

33
Q

WHar are the rights of a licensor in voluntary licensing?

A

In the technology transfer arrangement, the grant of a license shall not prevent the licensor from granting further licenses to third person nor from exploiting the subject matter of the technology transfer arrangement
himself.

34
Q

What are the rights of the licensee?

A

SECTION 90. Rights of Licensee. — The licensee shall be entitled to exploit the subject matter of the technology transfer arrangement during the whole
term of the technology transfer arrangement.

35
Q

what are the exceptional cases in voluntary licensing?

A

Exceptional Cases. — In exceptional or meritorious cases where substantial benefits will
- accrue to the economy
such as high technology content,
increase in foreign exchange earnings,
employment
generation,
regional dispersal of industries and/or substitution with or use of local raw materials, or
in the case of Board of Investments, registered
companies with pioneer status
–exemption from any of the above requirements may be allowed by the Documentation, Information and
Technology Transfer Bureau after evaluation thereof on a case by case basis.

36
Q

Non-Registration with the Documentation, Information and Technology Transfer Bureau f sec 86 and 87

A

SECTION 92. Non-Registration with the Documentation, Information and
Technology Transfer Bureau. — Technology transfer arrangements that conform with the provisions of Sections 86 and 87 need not be registered with the Documentation, Information and Technology Transfer Bureau. Nonconformance with any of the provisions of Sections 87 and 88, however, shall automatically render the technology transfer arrangement unenforceable, unless said technology transfer arrangement is approved and registered with
the Documentation, Information and Technology Transfer Bureau under the provisions of Section 91 on exceptional cases.

37
Q

What is compulsory licensing?

A

The Director of Legal Affairs may grant a license to exploit a patented invention, even without the
agreement of the patent owner, in favor of any person who has shown his capability to exploit the invention.

38
Q

What are the instances where compulsory licensing ma be granted?

A

Under any of the following circumstances:
93.1. National emergency or other circumstances of extreme urgency;
93.2. Where the public interest, in particular, national security, nutrition, HEALTH or the development of other vital sectors of the national economy as determined by the appropriate agency of the Government,
so requires; or
93.3. Where a judicial or administrative body has determined that the manner of exploitation by the owner of the patent or his licensee is
anti-competitive; or
93.4. In case of public non-commercial use of the patent by the patentee, without satisfactory reason;
93.5. If the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patented
article shall constitute working or using the patent.

39
Q

Period to file compulsory license

A

Period for Filing a Petition for a Compulsory License. —
94.1. A compulsory license may not be applied for on the ground stated in Subsection 93.5 (f the patented invention is not being worked in the Philippines on a commercial scale, although capable of being worked, without satisfactory reason: Provided, That the importation of the patentedarticle shall constitute working or using the patent. )
before the expiration of a period of four (4) years from the date of filing of the application or three (3) years from the date of the patent whichever period expires last.
94.2. A compulsory license which is applied for on any of the grounds stated in Subsections 93.2, 93.3, and 93.4 and Section 97 may be applied for at any time after the grant of the patent.

40
Q

SECTION 95. Requirement to Obtain a License on Reasonable Commercial

A

SECTION 95. Requirement to Obtain a License on Reasonable Commercial
Terms. —
95.1. The license will only be granted after the petitioner has made efforts to obtain authorization from the patent owner on reasonable commercial terms and conditions but such efforts have not been successful within a reasonable period of time.
95.2. The requirement under Subsection 95.1 shall not apply in the following cases:
a. Where the petition for compulsory license seeks to remedy a practice determined after judicial or administrative process to be anti-competitive;
b. In situations of national emergency or other circumstances of extreme urgency;
c. In cases of public non-commercial use.
95.3. In situations of national emergency or other circumstances of extreme urgency, the right holder shall be notified as soon as reasonably
practicable.
95.4. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by
or for the government, the right holder shall be informed promptly.

41
Q

Terms and Conditions of Compulsory License

A

100.1. The scope and duration of such license shall be limited to the purpose for which it was authorized;
100.2. The license shall be non-exclusive;
100.3. The license shall be non-assignable, except with that part of the enterprise or business with which the invention is being exploited;
100.4. Use of the subject matter of the license shall be devoted predominantly for the supply of the Philippine market: Provided, That this limitation shall not apply where the grant of the license is based on the ground that the patentee’s manner of exploiting the patent is determined by judicial or administrative process, to be anticompetitive.
100.5. The license may be terminated upon proper showing that circumstances that led to its grant have ceased to exist and are unlikely to recur: Provided, That adequate protection shall be afforded to the legitimate interest of the licensee; and
100.6. The patentee shall be paid adequate remuneration taking into account the economic value of the grant or authorization, except that in cases where the license was granted to remedy a practice which
was determined after judicial or administrative process, to be anticompetitive, the need to correct the anti-competitive practice may be
taken into account in fixing the amount of remuneration

42
Q

Transmission of patent rights

A

Transmission of Rights. —
103.1. Patents or applications for patents and inventions to which they relate,
shall be protected in the same way as the rights of other property under the Civil Code.
103.2. Inventions and any right, title or interest in and to patents and inventions covered thereby, may be assigned or transmitted by inheritance or bequest or may be the subject of a license contract.

43
Q

Assignement of patent rights

A

SECTION 104. Assignment of Inventions. — An assignment may be of the entire right, title or interest in and to the patent and the invention covered
thereby, or of an undivided share of the entire patent and invention, in which event the parties become joint owners thereof. An assignment may be limited to a specified territory. (Sec. 51, R.A. No. 165)

SECTION 105. Form of Assignment. — The assignment must be
in writing,
acknowledged before a notary public or other officer authorized to administer oath or perform notarial acts, and certified under the hand and official seal of
the notary or such other officer.

Such instruments shall be void as against any subsequent purchaser or mortgagee for valuable consideration and without notice, unless, it
is so recorded in the Office, within three (3) months from the date of said instrument,

44
Q

Rghts of joint owners

A

— If two (2) or more persons jointly own a patent and the invention covered thereby, either by the issuance of
the patent in their joint favor or by reason of the assignment of an undivided share in the patent and invention or by reason of the succession in title to
such share, each of the joint owners shall be entitled to personally make, use, sell, or import the invention for his own profit: Provided, however, That
neither of the joint owners shall be entitled to grant licenses or to assign his right, title or interest or part thereof without the consent of the other owner
or owners, or without proportionally dividing the proceeds with such other owner or owners

45
Q

Utility models

A

Special Provisions Relating to Utility Models. —

  1. 1.
    a. An invention qualifies for registration as a utility model if it is new and industrially applicable.
    b. Section 21, “Patentable Inventions”, shall apply except the reference to inventive step as a condition of protection.

A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application. A utility model registration shall expire, without any possibility of renewal, at the end of the seventh year after the date of the filing of the application.

SECTION 111. Prohibition against Filing of Parallel Applications. — An applicant may not file two (2) applications for the same subject, one for utility model registration and the other for the grant of a patent whether simultaneously or consecutively.

Commercial Law (2 decks)

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