A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time, in exchange for publishing an enabling disclosure of the invention."A patent is not the grant of a right to make or use or sell. It does not, directly or indirectly, imply any such right. It grants only the right to exclude others. The supposition that a right to make is created by the patent grant is obviously inconsistent with the established distinctions between generic and specific patents, and with the well-known fact that a very considerable portion of the patents granted are in a field covered by a former relatively generic or basic patent, are tributary to such earlier patent, and cannot be practiced unless by license thereunder." – Herman v. Youngstown Car Mfg. Co., 191 F. 579, 584–85, 112 CCA 185 (6th Cir. 1911) It offers a bargain between society and inventor: for a limited period of exclusivity, the inventor agrees to make the invention public rather than to keep it secret. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights.
The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the scope of protection that is being sought. A patent may include many claims, each of which defines a specific property right.
Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be available in WTO member states for any invention, in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application.Article 27.1. of the TRIPs Agreement. Nevertheless, there are variations on what is patentable subject matter from country to country, also among WTO member states. TRIPS also provides that the term of protection available should be a minimum of twenty years. Some countries have other patent-like forms of intellectual property, such as utility models, which have a shorter monopoly period.
Definition The word patent originates from the Latin patere, which means "to lay open" (i.e., to make available for public inspection). It is a shortened version of the term letters patent, which was an open document or instrument issued by a monarch or government granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents, which were land grants by early state governments in the US, and printing patents, a precursor of modern copyright.
In modern usage, the term patent usually refers to the right granted to anyone who invents something new, useful and non-obvious. A patent is often referred to as a form of intellectual property right, an expression which is also used to refer to trademarks and copyrights, and which has proponents and detractors (see also Intellectual property § The term "intellectual property").
Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US, plant breeders' rights are sometimes called plant patents, and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents. The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents.
Particular types of patents for inventions include biological patents, business method patents, chemical patents and software patents.
History
Although there is evidence that some form of patent rights was recognized in Ancient Greece in the city of Sybaris,Charles Anthon, A Classical Dictionary, Harper & Bros, 1841, p. 1273.Phylarchus of Naucratis, "The Deipnosophists, or, Banquet of the Learned of Athenæus", Translated from Ancient Greek by H.Bohn 12:20, p. 835 the first statutory patent system is generally regarded to be the Venetian Patent Statute of 1474. However, recent historical research has suggested that the 1474 Statute was inspired by laws in the Kingdom of Jerusalem that granted monopolies to developers of novel silk-making techniques.Robert Patrick Merges. Patent Law and Policy: Cases and Materials. 7th ed., Chapter 1.
The first modern patents, however, didn't come about until the Medieval period. The first recorded industrial patent was granted in 1421 to Filippo Brunelleschi, a Florentine engineer and architect who invented a new way to transport marble from quarries on the river Arno via barge. The Venetian Senate granted Brunelleschi an exclusive privilege valid for three years: during this period, no one else could build, use, or copy the invention without his consent. Otherwise, the authorities would confiscate the vessel and impose penalties.
This type of protection—based on a temporary privilege—marked a significant legal innovation: for the first time, technical innovation was protected through an exclusive subjective right recognized by the state. In 1449, the first English patent was granted to Flemish glassmaker John of Utynam for a twenty-year monopoly on making stained glass. Venice, too, was granting patent protections by this time, usually for glassmaking.
Patents were systematically granted in Venice as of 1474, where they issued a decree, the Venetian Patent Statuto, by which new and inventive devices had to be communicated to the Republic to obtain legal protection against potential infringers. The period of protection was 10 years. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.
The patent system evolved from its late medieval origins into the first modern patent system that recognised intellectual property to stimulate invention; this was the crucial legal foundation upon which the Industrial Revolution could emerge and flourish.; By the 16th century, the English Crown would habitually abuse the granting of letters patent for monopolies. After public outcry, King James I of England (VI of Scotland) was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies (1624) in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. The Statute became the foundation for later developments in patent law in England and elsewhere.
Important developments in patent law emerged during the 18th century through a slow process of judicial interpretation of the law. During the reign of Queen Anne, patent applications were required to supply a complete specification of the principles of operation of the invention for public access. Legal battles around the 1796 patent taken out by James Watt for his steam engine, established the principles that patents could be issued for improvements of an already existing machine and that ideas or principles without specific practical application could also legally be patented.
The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand and Australia. In the Thirteen Colonies, inventors could obtain patents through petition to a given colony's legislature. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.James W. Cortada, "Rise of the knowledge worker, Volume 8 of Resources for the knowledge-based economy", Knowledge Reader Series, Butterworth-Heinemann, 1998, p. 141, .
The modern French patent system was created during the Revolution in 1791.Gabriel Galvez-Behar,"La République des inventeurs. Propriété et organisation de l'invention en France, 1791–1922", Rennes, Presses universitaires de Rennes, 2008, . Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1,500 francs). Importation patents protected new devices coming from foreign countries. The patent law was revised in 1844patent cost was lowered and importation patents were abolished.
The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts".Online at Library of Congress: "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875": First Congress, Session II, chapter VII, 1790: "An Act to Promote the Progress of Useful Arts" . The first patent under the Act was granted on July 31, 1790, to Samuel Hopkins of Vermont for a method of producing potash (potassium carbonate). A revised patent law was passed in 1793, and in 1836 a major revision was passed. The 1836 law instituted a significantly more rigorous application process, including the establishment of an examination system. Between 1790 and 1836 about ten thousand patents were granted. By the American Civil War about 80,000 patents had been granted.Joseph M. Gabriel, Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry. University of Chicago Press (2014)
Gender gap in patents
The first patent in England known to be granted to a woman was to Mrs. Amye Everard Ball in 1637 for a tincture of saffron.
In the US, married women were historically precluded from obtaining patents. While section 1 of the Patent Act of 1790 did refer to "she", married women were unable to own property in their own name and were also prohibited from rights to their own income, including income from anything they invented. This historical gender gap has lessened over the course of the 20th and 21st centuries, however, disparity is still prevalent. In the UK, for example, only 8% of inventors were female as of 2015. This can partly be attributed to historical barriers for women to obtain patents, as well as to the fact that women are underrepresented in traditionally "patent-intensive" sectors, particularly STEM sectors. Marcowitz-Bitton et al. argue that the gender gap in patents is also a result of internal bias within the patent system.
Innovation decline
The number of patent applications filed each year has been growing for most countries although not smoothly, and jumps in activity are often observed due to changes in local laws. The high number of patent families for Spain in the 1800s is related to the superior preservation and cataloguing of the data by Spanish Patent and Trademark Office compared to other countries (see 1836 U.S. Patent Office fire). The US was the World's leader in terms of patent families filed between 1900 and 1966, when Japan took over. Since 2007 China leads.