Patent IP

See Patent Fight

Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited time (usually, 20 years) from profiting of a patented technology without the consent of the patent-holder. Specifically, it is the right to exclude others from: making, using, selling, offering for sale, importing, inducing others to infringe, applying for an FDA approval, and/or offering a product specially adapted for practice of the patent.^[1]

United States patent law is codified in Title 35 of the United States Code, and authorized by the U.S. Constitution, in Article One, section 8, clause 8, which states:

The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Although this statement is superficially similar to intellectual property clauses in the constitutions of other countries, the US patent system has several peculiarities.

Firstly, this clause is interpreted as giving the primary IP rights only to individuals (i.e. "inventors") rather than to organizations (see Stanford University v. Roche Molecular Systems, Inc.),

Secondly, until 16 March 2013 the US gave priority to first inventors to invent, although the US adopted first inventor to file system since (see First to file and first to invent).

Thirdly, the US has provisional patent applications, which can be filed one year before filing regular patent application, thus delaying the start on the nominal 20 year patent term by one year.

Fourthly, unlike most other countries, the US allows extension of patent monopoly beyond 20 years from the filing date via patent term adjustment^[2] due to the patent prosecution delays by the USPTO or due to product approval delays by Food and Drug Administration.

Fifthly, the US does not have utility models.

Sixly, there is no criminal liability for patent infringement in the US, only civil liability.

Finally, the large size of the US economy, the strong pro-patentee legal regime and over 200 years of case law make US patents more valuable and more litigated, than patents of any other country.

Substantive law

The issues of patent validity and patent infringement fall under exclusive jurisdiction of the Federal government. On the other hand, questions of patent ownership (like other questions of private property) are contested in state courts, although federal courts can make decisions about patent ownership by applying the relevant state law, when appropriate.^[3]

Most of the US patent law is codified in Title 35 of the United States Code. The "patentability" of inventions (defining the types things that qualify for patent protection) is defined under Sections 100–105. Most notably, section 101^[4] sets out "subject matter" that can be patented; section 102^[5] defines "novelty" and "statutory bars" to patent protection; section 103^[6] requires that an invention to be "non-obvious".

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United States patent law - Wikipedia

The copyright law of the United States has a long and complicated history, dating back to colonial times. It was established as federal law with the Copyright Act of 1790. This act was updated many times, including a major revision in 1976.

Colonial era

The British Statute of Anne did not apply to the American colonies. The colonies' economy was largely agrarian, and copyright law was not a priority. As a result, only three private copyright acts were passed prior to 1783. Two of the acts were limited to seven years, the other to five years.

1783 to 1787

In 1783, several authors' petitions persuaded the Congress of the Confederation "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." However, under the Articles of Confederation, the Continental Congress had no authority to issue a copyright.

Instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed ... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, ... the copy right of such books for another term of time no less than fourteen years."^[1]

Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute.^[2] Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen-year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.^[3]

Prior to the passage of the United States Constitution, several states passed their own copyright laws between 1783 and 1787, the first being Connecticut.^[4] Contemporary scholars and patriots such as Noah Webster, John Trumbull, and Joel Barlow were instrumental in securing the passage of these statutes.^[4]

United States Constitution

Copyright Clause

Failed bill of rights provision

Thomas Jefferson, who strongly advocated the ability of the public to share and build upon the works of others, suggested limiting copyright duration in the Bill of Rights, proposing the language:

Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding – years but for no longer term and no other purpose.^[6]