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IP law > Patents > Flashcards

Patents Flashcards

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1
Q

what is a patent

A

exclusive right in an industrial invention that is granted upon request

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2
Q

what are some examples of inventions

A

penicillin, lego bricks, post it stickers

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3
Q

what are the 3 requirements of a patent

A

novelty
inventive
industrial applicable

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4
Q

what is the inventive step

A

must provided a new way of doing something

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5
Q

how long is a patent protection

A

20 years

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6
Q

why should things be patented

A
  1. provides incentive for technological innovation
  2. reward for innovative work
  3. protection in exchange for disclosure of invention - want to develop them
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7
Q

what governs patents on an international level

A

WIPO
- Paris convention
- patent cooperation treaty
- TRIPS

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8
Q

what governs patens on a regional level (europe)

A
  • strasbourg patent convention
  • european patent convention
  • UPC package
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9
Q

what is the requirement of novelty in a patent application

A

subject matter is not new if it belongs to the state of the art

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10
Q

what does state of the art mean

A

everything that is made publicly available (decided by whether person skilled in the art can carry out the invention on the basis of the instructions made available)

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11
Q

what are 4 things that kill novelty

A
  1. publications in foreign languages
  2. earlier, not yet published patent applications
  3. talks, presentations, product proofs
  4. demonstration to visitors
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12
Q

what is the only exemption to the novelty rule

A

demonstrations at official or officially recognised international exhibitions are classed as new because of temporary protection granted under Article 11 Paris convention

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13
Q

what is national treatment

A

It mandates that each contracting state must grant the same protection to nationals of other contracting states as it grants to its own nationals.

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14
Q

what is the right of priority

A

WHAT?= This means that if an applicant files for protection in one member country, they can file in other member countries within these specified periods and have their application considered as if it were filed on the same day as the first application.

HOW LONG = priority period of 12 months for patents and industrial designs, 6 months for trademarks.

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15
Q

what is the inventive element of a patent application

A

it must not be obvious to a person skilled in the art

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16
Q

what is a person skilled in the art

A
  1. has standard knowledge
  2. knows the specific relevant state of the art
  3. has working experience In the relevant field of technology
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17
Q

what is the industrial application element of a patent application

A

if it can be made or used in any kind of industry, including agriculture.

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18
Q

what does the TRIPS article 27 exclude from patentability

A
  1. diagnostic, therapeutic, and surgical methods for the treatment of humans or animals.
  2. allows countries to exclude plants and animals (except microorganisms) from being patented.
  3. allows countries to not grant patents for inventions that could harm public safety, health, or the environment. This means if an invention poses a risk to society or nature, it can be excluded from patent protection.
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19
Q

what is the Article 3 of the EU directive 98/44/ EC

A

Directive on the Legal Protection of Biotechnological Inventions

  1. biotechnological inventions can still be patented even if they contain biological material
  2. it clarifies that you cannot patent the human body or its parts just by discovering them, but you can patent a gene or part of a gene if it’s been technically isolated or produced and has a clear use in industry
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20
Q

what does article 29(1) TRIPS state about the application file of a patent

A

must disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art.

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21
Q

what are the key elements of a european patent

A
  1. patent
  2. proprietor
  3. description
  4. patent claims
  5. drawings and figures
22
Q

what does Article 69(1) european patent convention state about the claims section

A

‘The extent of the protection conferred by a European patent or a European patent application shall be determined by the claims.’

23
Q

what is the examination system for a patent

A
  1. application
  2. examination of formal and substantive elements
    2a. formal - basic info
    2b. novelty and further requirements
  3. refusal or grant (grant will be faced with opposition)
24
Q

what is the registration system for a patent application

A
  1. application
  2. examination
    2a. formal
    2b. substantive - novelty
  3. refusal or grant
25
Q

what are the pros and cons of the examination system

A
  • high legal certainty

cons
- long procedure
- expensive
- office procedure

26
Q

what are the pros and cons of the registration system

A

low legal certainty

  • short procedure
  • cheap
  • settle in court proceedings
27
Q

what is the term of protection available for a patent

A

Article 33 TRIPS - 20 years

28
Q

what are the extensions available in certain technical fields for patents

A
  • pharmaceutical products requiring market approval
  • supplementary protection certificates in certain countries
29
Q

what is the effect of a european patent

A

A European patent shall, in each of the contracting states for which the patent is granted, have the effect of and be subject to the same conditions as a national patent granted by that state, unless provided otherwise (Article 2(2) European Patent Convention). This means that a European patent is a “bundle of national patents” and that the same patent can be subject to different regulations in differentstates.

30
Q

what happens if two people are applying at the same time

A

If two persons or more have made an invention independently of each other, the patent right belongs to the person whose application has the earliest date of filing, provided that this first application has been published (Article 60(2) EPC).

31
Q

what is an exclusive right and what does article 28 say of TRIPS say

A

Article 28 specifies the exclusive rights granted to patent owners, distinguishing between product and process patents.

  1. For product patents, the owner can prevent others without consent from making, using, selling, or importing the product.
  2. For process patents, the owner can prevent unauthorized use of the process and the use, sale, or importation of products directly obtained by that process.

Essentially, it provides patent holders control over their inventions, allowing them to protect and potentially profit from their patented products or processes.

32
Q

what is a direct infringement of a patent

A
  • product = acts relating to the product (making, offering and using)
  • process = use of patent, acts relating to the product directly obtained from the process
33
Q

what happens when an identical product is obtained with a different process

A

ARTILE (1) TRIPS - burden is on defendant to prove that the proess is different but the assumptions there

34
Q

under TRIPS what are the potential remedies

A

part 3
- injunctive relief
- damages or account of profits
- declaratory and other relief

35
Q

what is the doctrine of equivalence

A

The doctrine of equivalents arises in the context of an infringement action. If an accused product or process does not literally infringe a patented invention, the accused product or process may be found to infringe under the doctrine of equivalents. even if the infringing device or process does not fall within the literal scope of a patent claim

It’s a rule in patent law that stops others from slightly altering an invention to claim it as their own

36
Q

does applying a patent granted in the Netherlands, in china infringe dutch patent

A

no

37
Q

what is indirect (contributory) infringement

A

Indirect contributory infringement occurs when a person or entity contributes to another’s infringement of a patent but does not directly infringe the patent themselves.

38
Q

how does TRIPS protect against patent infringement in transit cases

A

Article 41(1) - it requires countries to have legal mechanisms in place to protect and enforce intellectual property rights effectively and fairly.

39
Q

is there exclusivity after patent expiry

A

yes for pharamaceuticals but only for the generic versions

40
Q

what is the bolar exception

A

a legal provision that allows generic drug manufacturers (and in some jurisdictions, developers of medical devices or agricultural chemicals) to use, make, sell, or import a patented invention without the patent holder’s permission, solely for purposes related to obtaining regulatory approval before the patent expires

this satisfies the test under article 30 of trips. it complies with the 3rd element as there is no legitimate interest etbalishe.

41
Q

what is the stockpiling exception

A

The “stockpiling exception” for patents refers to a specific legal provision that allows generic drug manufacturers to produce and stockpile patented drugs before the patent expires, but not to sell them until after the patent has expired. This exception is designed to ensure that generic versions of drugs can enter the market immediately upon the expiration of the relevant patent, facilitating quicker access to cheaper generic medications for the public.

  • this fails the limited exception element within the test under trips article 30
42
Q

what is the test to determine whether the use of a patented invention does not constitute infringement

A

ARTICLE 30 TRIPS
3 STEP TEST
step 1 - limited exceptions to the exclusive rights conferred by a patent
step 2 - unreasonable conflict with a normal exploitation
step 3 - unreasonable prejudice to legitimate interests

43
Q

what is meant by limited exceptions

A

any exceptions to patent rights must be limited this means the scope and duration of the exception should be narrowly tailored to achieve the specific purpose for which it is intended.

44
Q

what is meant by unreasonable conflict with a normal exploitation of the patent

A

the exception should not interfere in a manner that is unreasonable with the norma exploitation of the patent. normal exploitation means the patentees ability to obtain economic reward for the protected invention

45
Q

what is meant by unreasonable prejudice to legitimate interests

A
  • must look at 3rd parties
  • . It ensures that while the exception may affect the patent holder to some extent, it should not do so in an unreasonable or unjustified manner, especially considering the benefits or needs of third parties.
46
Q

what is the TRIPS waiver

A

Proposal submitted to WTO TRIPS council in relation to covid 19
- waive the obligations under s1 (copyright), s4(Industrial designs), s5 (patents) and s7 (protection of undisclosed info) of TRIPS part II

FOR THE PREVENTION, CONTAINMENT OR TREATMENT OF COVID-19

47
Q

how is the unreasonable conflict with a normal exploitation step in the 3 step rule assessed

A
  1. impact on actual markets
  2. impact on potential markets
48
Q

what is compulsory licensing

A

Article 31 TRIPS - where the government has the right to permit the use of patented products to ensure that they do not prevent access to important technologies or medications that are crucial for public health, safety, or development.

49
Q

is there room for strategic improvement within article 27(1) trips

A
  • yes
  • novelty - the defintion is broad so it could be concise to make it more clear acrosss jurisdictions and This could help reduce uncertainty and disputes over what constitutes a patentable invention.
  • inventive - high threshold meaning it can be hard for less developed countries.
  • capable of industrial application - While TRIPS includes provisions against anti-competitive practices, there could be more explicit guidelines within Article 27(1) or related provisions to prevent abuse of patent rights that can stifle innovation and competition.
50
Q

what are some examples of the inventions included in article 27(2) that can be excluded.

A
  • use of human embryos
  • weapons, explosives poison can be patented but the application could be forbidden
51
Q
A

IP law (5 decks)

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