Intellectual Property Newsletters

Patents

A patent is a federal statutory right that allows an inventor to exclude others from making, using, selling, offering for sale, or importing the patented invention without the inventor's permission for the limited period specified by the patent statute. If a person or other entity makes, uses, sells, offers for sale, or imports the invention covered by the patent, they have infringed the patent, and the patent owner may bring a lawsuit to seek relief. There are several defenses to allegations of patent infringement available to someone who is sued for patent infringement. Two of the available patent defenses are that the allegedly infringing activity is not an infringement of the patent and that the patent is not valid and cannot be enforced.

Business-Method Patents

The federal patent statute allows an inventor to obtain a patent for a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." There is no provision in the patent statute for business methods, and the United States Patent and Trademark Office for decades explicitly rejected business-method patent applications based on a turn-of-the century judicial rejection of a patent for a method of cash-register accounting to prevent fraud by waiters. Much of the rejection of business-method patents was based on the conclusion that the methods and systems sought to be patented were abstract ideas without tangible manifestation; however, that analysis evolved into a doctrine that business methods were inherently unpatentable.

The Paris Convention for the Protection of Industrial Property

In 1883, 11 countries set out to make it easier for its citizens to obtain patent and trademark protection in other countries and became signatories to the Paris Convention for the Protection of Industrial Property. Under the Convention, the patent and trademark protection mechanisms of the member countries were opened up to citizens of other member countries, allowing such citizens to be able to obtain intellectual property protection in each of the member countries. In addition, the Convention established a right of priority, which means that the initial filing date seeking protection for intellectual property serves as the filing date in other countries as long as the intellectual property owner files for protection within other member countries within a specified time period. The Convention has been revised several times since its inception, and is currently administered by the World Intellectual Property Organization, a specialized agency of the United Nations. There are now 164 signatories to the Convention.

Indirect Patent Infringement

Patent rights are created by federal law and give an inventor the right to exclude others from making, using, selling, offering for sale, or importing a patented invention without the inventor's permission for a limited period of time. The making, using, selling, offering for sale, or importing of a patented invention without the inventor's permission is said to directly infringe the patent, for which the patent owner may be able to recover a remedy. Patent law also provides for indirect infringement of a patent.

WTO Agreement on Trade-Related Aspects of Intellectual Property

The first successful attempt to establish international rights to intellectual property was the Berne Convention for the Protection of Literary and Artistic Works, which was first adopted in 1886 and was modified several times. The Convention is presently administered by the World Intellectual Property Organization. Although U.S. copyright law was significantly different from that established by the Berne Convention, resulting in the United States' refusal to accept the Convention for several years, the United States changed its copyright laws quite significantly in the 1970s and subsequently signed the Convention. A major criticism of the Berne Convention was its lack of enforcement mechanisms.