A patent is an officially granted industrial property right for an invention . The owner of the patent is entitled to prohibit others from using the invention . The property right is granted on a temporary basis; in Germany for 20 years in accordance with Patent Act .
The German word was borrowed from the French patente ("Bestallungsbrief, Gewerbeschein") in the 17th century . This is shortened from lettre patente ("open letter") and goes back to the Latin (littera) patens ("open (authenticated) letter from the sovereign"). Originally “a document about certain rights” was meant, the predominant importance today developed with the modern patent system since the 19th century. More than 3.3 million patents were applied for worldwide in 2018.
In the German-speaking world, the term "patent" is clearly used for a property right on a technical invention. In the English-speaking world, however, US law recognizes two types of patents, namely the utility patent and the design patent . The utility patent is a property right on a technical invention, the design patent , in English sometimes only referred to as design , on the other hand a property right on shapes and patterns - just on a design.
German legal circle
The patent owner has the right to prevent copying and use of his protected invention for a certain period of time. This enables him to realize a monopoly price and receive not only compensation for the research and development costs of the invention, but also a profit .
The fundamental problem that patent protection is supposed to solve is market failure , which results from the positive externality of research : As a rule, the social benefit of an invention is well above the private benefit. That is why private research alone would invest too little. Too weak property rights lead to suboptimal innovation rates because investors are inadequately rewarded. The state can combat this market failure by subsidizing research through taxpayers' money or by defining and protecting intellectual property rights. However, protection of property that is too strong is not optimal either, because inventions then cannot be used and further developed enough. The strength of property protection varies along different dimensions. The amount defines which inventions can be protected. The length defines how long an invention can be protected. The depth defines the scope of the protected activities.
In the case of patents, there is a trade-off between creating incentives for research and publication of inventions on the one hand, and restricting the use of protected inventions during the patent term on the other. In addition to the restriction of the practical use of inventions, there are also negative effects on the speed of the further development of scientific knowledge ( discussed under the term anti-commons since the late 1990s ): If new scientific knowledge and methods are protected by patent, so will other researchers makes it difficult to use the methods and to build on this knowledge.
How patents affect scientific and technical progress (or basic research and applied research ) has not been conclusively clarified. Patents on gene fragments could hold back research because a company that wants to use these gene fragments may first have to acquire several licenses from different patent owners. The same applies to the patenting of basic biotechnological concepts that are important for further research, see Biopatent .
According to an empirical test by the anti-commons for the life sciences, there is a moderate negative effect on basic research (measured in citations ). It is unclear which mechanism the changed citation behavior is based on. It is possible that patent protection merely shifts the focus of other researchers to other, easily substitutable projects; this would imply a small negative effect from patents. Second, it is unclear whether those scientists were primarily affected who had previously cited the publication associated with the patent protection that was subsequently granted, or whether the reduction was primarily due to a limitation of potentially first-time citations.
An international analysis of 177 patent-relevant policy measures in 60 countries over 150 years came to the conclusion that an expansion of patent protection promotes innovation (measured in the patent index ) if patent protection was initially weak; on the other hand, hinders them if the patent protection was initially strong.
However, according to another study, a smaller number of patents associated with a strong patent law can have a greater social benefit than the larger number of patents associated with a weak patent law, if a larger proportion of the smaller number of inventions are further developed and reach the product market.
An inventor can either keep his invention secret or disclose it to the public. A patent application (and thus the invention described therein) is published by the respective patent office. Apart from more exotic, secret areas, patent protection is only possible with a publication of the invention. Since a patent restricts the use of the invention by third parties, the possibility of patent protection increases the likelihood that inventions will be disclosed. Disclosure is socially advantageous over confidentiality for several reasons: After the expiry of the patent protection (at the latest after the expiry of the maximum term of usually 20 years) anyone can freely use the invention. Announcement also reduces the likelihood that several scientists are working on the same invention, although it would be more efficient if they were researching different projects. Third, an announcement can inspire new ideas. For these reasons, patents can bring a benefit to society even if they should not increase innovation rates.
According to a survey of US and Japanese companies, the spillover associated with the announcement is relatively low, since in rapidly advancing areas of technology the information is already largely out of date at the time of the patent grant. However, companies can certainly obtain information on their technical development directions based on patent applications from competitors.
After a patent owner has received protection for his invention, he can decide whether to use the invention himself or to transfer the right of use to others through licensing . Empirical studies show that the strength of patent protection has an important, positive influence on licensing. Strong patent rights promote vertical integration and division of labor as they reduce the transaction costs of transfer negotiations. In the semiconductor industry, companies specialized in chip design emerged after patent law was strengthened. In the biotechnology sector, it is observed that established pharmaceutical companies cooperate with small and young companies on a division of basis.
In this respect, a patent corrects its weakness of excluding third parties from using inventions to a certain extent: a stronger right of exclusion promotes the transfer of inventions. The Bayh – Dole Act in the US, which gave universities a patent right to publicly funded inventions, encouraged the exchange of inventions between universities and the private sector.
On the other hand, stronger patent law can also promote anti-competitive processes such as collusion (e.g. through cross-licensing ) and company concentration . In the upstream industry in particular, many independent biotechnology companies were taken over by large chemical companies in the 1990s, such as Calgene and Asgrow by Monsanto , Mycogen by Dow , and Pioneer by DuPont .
Economic modeling of the question of patenting
This question is about the question of whether a market player should apply for a patent or not. This happens under the premise of a given, economically rational designed patent system.
A patent application can make sense for a market player in a certain development area (technology, software, plant varieties, etc.) if the development costs (the costs necessary to develop the invention) are significantly higher than the plagiarism costs (the costs incurred for Development of a copy of the invention are necessary). Because only then does the inventor suffer a disadvantage that cannot be compensated in every case by the temporary monopoly of the first supplier of a product based on the invention. This cost structure differs greatly depending on the development area:
Development processes in technology are lengthy. You may have to try a lot of materials and develop several prototypes before you find an optimal process. When it comes to drugs, it often takes years to find a good combination of active ingredients. This optimal solution quickly becomes known when entering the market and can thus be easily copied. In technology, the development time is much longer (for example 7 years) than the time for copying after market entry (for example 6 months).
In the context of the normative design question of patent law, the property theory / natural law argumentation, which is often used in the legal field, is inadmissible from an economic point of view, since it does not allow a rational economic delimitation (in the sense of a trade-off between advantages and disadvantages).
A patent application usually incurs three types of costs: official fees during the registration process, fees for patent attorneys and other service providers such as patent researchers or translators, and annual official fees for the extension of patent protection. The actual amount of the costs depends less on the invention to be patented, but on the desired geographical scope of patent protection, the use of a lawyer and any objections that have to be justified and defeated. In the case of a national application, costs of € 5,000 can arise before the application is granted. An application at the European Patent Office can cost 10,000 € and entails additional costs for the national validation. € 100,000 and more can arise if the invention is protected in many national markets. In addition, there may be costs for the defense or enforcement of patent protection.
Patents can be recorded for accounting purposes and can have a market value.
They serve to inform market competitors about technical knowledge and licensing options: This saves third parties from duplicating the work involved in innovation , while the patent holder can commercialize his invention with low risk by means of licensing. In addition, third parties will be informed about potential claims for patent infringement with the property rights situation.
Patents are also the basis for cooperation : Patented inventions can be incorporated into an innovation process based on the division of labor or as a contribution to a company to be founded.
In the case of insolvency of companies holding patents, there is sometimes the problem that the patents have been pledged to the creditors, which makes it difficult or even impossible for the insolvency administrator to continue business or to sell the insolvent company.
Patents are often used for advertising purposes. Designations such as "patented" or English. "Patent pending" associate higher quality and can therefore justify higher product prices. The ETH Zurich advertises as an education provider with 90 patent applications and 200 invention disclosures per year.
Innovative companies that want to protect their developments against imitation try to obtain patent protection for such products and processes that lead to an economic, technical or even just a marketing advantage in order to gain a competitive advantage. A company's extensive patent portfolio can also be helpful if the company wants to make use of a competitor's patent ( cross-licensing ), as in return it can offer the competitor the use of one or more of its patents.
The alternative strategy for a company to try to keep developments secret instead of patent applications is risky in times of increasing employee turnover, as the risk of the development outside the company becoming known is great. In addition, there is a risk that a competitor will independently make the same developments and apply for a patent in turn. Although a number of countries grant the company that is already using a so-called right of prior use , this is not the case in all countries, so that in the event of confidentiality there is even a risk that the competitor can forbid the use of the development.
If, on the one hand, the effort to obtain patent protection is to be avoided, but at the same time it is to be prevented that a competitor who, for example, independently makes the same development, receives a patent on this technology, a blocked publication can be made.
One does not always sharp division of patent types is as follows: stock patents are filed for inventions whose economic exploitation is not yet known at the time of registration. Reserve patents that only improve existing patents are referred to as expansion patents. Such reserve patents naturally contribute to the expansion of one's own patent portfolio (see above).
As blocking patents (not to be confused with the aforementioned blocking publication ) such patents are referred to, which are not used by the patentee, but to deny entry into a particular market segment, only third party.
Non-profit associations ( e.g. DVS ) and organizations (e.g. DIN ) create norms and standards for the unification of products and processes . Industry, trade, research institutions and individuals work equally in the respective committees. The written documents are presented to the public during an objection period. Objections and suggestions for improvement must be dealt with by the committee. Products and processes that have been described in a norm or standard cannot be patented because they have been published. Sometimes it is feared that a company will introduce a patented procedure into a standardization process and only later reveal that it is holding patents on the developed standard in order to increase its own sales through standardization (see also: Standard-essential patent procedure before the ECJ in case C-170/13 (Huawei v ZTE) and the Opinion in these preliminary ruling proceedings by Advocate General Wathelet of November 20, 2014, inter alia with regard to a possible abuse of a dominant position).
In principle, however, there is the possibility of a compulsory license being issued in the public interest if the patent holder has previously refused to grant a license in return for a reasonable license fee.
There are three main substantive aspects of patents:
- Right to a patent: under what conditions is a patent granted or maintained?
- Patent rights: If and as long as it exists: What are the effects of a patent?
- Ownership: who owns a patent?
Right to the patent: patenting
In order for an invention to be patented or for a patent, once granted, to be legally valid, a number of material requirements must be met:
- All over the world there is a requirement that the invention to be patented must be based on so-called inventive activity , i.e. - to put it in a non-legal sense - it must be more for a specialist in the field than a simple combination or modification of what sometime earlier somewhere in the world has become known. In US jargon this is called "non-obviousness".
- The European systems also call for novelty ; H. it must not be state of the art. Prior art in the patent system is anything that has previously been made available to the public, for example in specialist books, trade fairs or other patents, including patent applications that have not yet become known (i.e. published).
- Most patent systems also require the invention to be patented as a whole to be of a technical nature.
- The invention to be patented must be commercially applicable.
- Only one invention may be patented per patent - unity criterion
Procedure for granting patents
There are two qualitatively different system designs: systems with examination of a patent application before granting and systems with immediate patenting, in which it is only checked in possible infringement proceedings whether the invention is patentable. The major patent systems around the world are equipped with pre-grant examination procedures, particularly those in Germany, England, Europe, USA, Japan and China.
For the examination procedure there are the respective patent offices in which technically trained examiners check the above material criteria and also other prescribed criteria. If a pending invention meets the criteria, a patent is granted, otherwise it is rejected.
The legal validity of a patent can, if necessary, be checked in court at any time after it has been granted.
The patent granting process is called "patent prosecution" in US jargon.
Procedure after patent grant
Right from the patent: Protection from the patent
Patents are not permissions to do something, but prohibitive rights. They develop an area of protection within which the invention may not be used by anyone except the patent owner or by others only with the consent of the patent owner (license).
If a patent infringement has taken place, the proprietor may be entitled to one or more of the following claims against the infringer, depending on the individual case:
- Right to compensation for the past, including the right to information to determine the compensation,
- Right to cease and desist for the future, d. H. Entitlement to a declaration of cease and desist with a criminal offense to eliminate the risk of repetition.
The unlawful use of patents is called patent infringement. This can happen unintentionally as well as intentionally if a technology that is still subject to a property right is used without a license . According to German patent law , the respective technology must still be granted in the infringed area. If a patent infringement is suspected, it can be examined by a patent attorney . However, only the courts can issue binding stipulations. In Germany, twelve civil courts with patent litigation chambers are specifically geared towards patent disputes.
Inventions are legally regarded as artifacts with a “work character”, ie artifacts that are significantly shaped by the efforts, knowledge, experience and efforts, i.e. overall by the personality of the person who created them (inventor). This work character means that the inventors are granted rights to their invention. The following system is implemented in all major patent systems around the world:
- A priori, the rights to an invention, especially the property rights based on it, belong to the inventor (or the inventors, if there are several). Inventors are natural persons who created the invention. A legal person, e.g. B. a GmbH or an AG, cannot be inventors. The “inventor” quality cannot be selected in the legal sense, but is measured on the basis of the real course of things. However, several inventors can be involved in creating an invention.
- The rights to the invention, in particular the property rights and registrations based thereon, are transferable by the inventor. Patents and registrations can change hands. The transfer can result from statutory provisions or from a contract.
- If inventions are made by employed inventors (wage earners, not billers!), In Germany the employing company (e.g. a GmbH) has a right of appropriation to the rights to the invention by law. The employer then becomes the legal successor to the inventor. Some systems then provide for appropriate inventor remuneration from the employer. For Germany, this is regulated in the Employee Invention Act.
- A patent application can have several owners.
German terminology for this:
- “Owner” is the same as “Owner”.
- “Applicant” is the same as “Owner (= holder) of a patent application”.
- “Patent owner” is the same as “patent owner”, ie the owner (= owner) of a granted patent.
- "Inventor" is the natural person who created an invention. If a patent application has been made for the invention and there is no legal succession, the inventor is also the applicant and, once the patent has been granted, the patent owner.
- “Co-inventors” are two or more inventors who have created an invention together.
Number of patents
In 2015 almost 10,000 inventions were submitted to the Austrian Patent Office, 5% more than in 2014. 3,000 patents were registered, half of which were patented. Most of the patent applications were in Upper Austria (544), followed by Vienna (419) and Styria (371). The companies that filed the most patents were AVL List (internal combustion engine development), Zumtobel (lights) and their subsidiary Tridonic.
- For current figures, see the Austrian Patent Office (statistics) .
- Software patent
- Exclusive right
- Selection invention
- Designation of the inventor
- Appointment of inventor
- Subject of dispute in patent nullity proceedings
- Patent nullity litigation
- Change of lawsuit in patent nullity proceedings
- Information function of patents
- Right of further use
- Patent classification
- Technology theft
- Industrial espionage
- Patent assessor
- Junction (utility model)
- Inner priority
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