Case Study

Sample Essay on Patent

Patent

Introduction

A patent is defined as an award or grant made by government upon which it discusses the maker of an invention given them the exclusive right to sell, exploit and make that particular invention for a certain duration (Pipers Intellectual Property, n.d). It is a set of specific rights which are given to inventors for a restricted duration and they in turn have to make the invention public. Simply put, a patent refers to personal property or assets and can take the form of the property belong to the inventor which can be quite costly to individuals who have them. There are different kinds of patents which are accessible to inventors, for instance, patent to file processes referred to as Utility patent. There are also a couple of reasons inventors might patent a process though this is not restricted to the privilege of selling an idea to customers who are interested.

A patent is also known as a set of restricted rights which are given to individuals who are inventors or owners of material or product. These rights are given by independent state. The attorney offering clients the processes needed to have patents is referred to as patent attorney. Patent attorneys are supposed to have all the needed merits so they can be entitled to offer patent rights to individuals. The processes of patent provision however vary widely between nations depending on their laws and other global settlements.

The individual that performs the task of pursuing patent registration for an inventor or holder before the Patent Office power is referred to as a patent agent. Essentially, no opportunity is given out for patent agents under the Patent Law though these might differ from one state to another. This post, however can also be referred to that of patent attorney in various states according to their laws. Any individual applying for the post of a patent agent must first pass a qualifying exam each year which is provided by Patent Office as it is required by law (Lemley 1501).

Granting exclusive or specific rights to an inventor is anticipated to encourage investment of resources and time for purposes of developing new and helpful discoveries. Restricted domination which is issued by a patent is encouraged and lawful under the United States Jurisdictions as well. As such, patents can be and are very important. A large number of individuals have made large sums of money from patents while others have not.

The Requirements for Patentability

There are 5 primary patentability requirements and these are:

  1. Patentable subject matter-This addresses the type of inventions that should be reviewed for protection. A god example of the subjects that can be patented and those that cannot is products of nature and fabricated inventions. The law of opposition to stuff that is patent printed still holds force though the printed stuff can as well be patentable if its affiliation with physical invention is useful and new.
  2. Utility-This means the invention has to be a useful one. Reliability utility obliges that logic and fact should support affirmation of utility or that someone with ordinary talent in art would make the admission the invention has the capability of accomplishing its stated use. The utility is supposed to be specific to an area that is under discussion and common utility that might possibly be applicable to a range of inventions. Considerable utility on the other hand necessitates the invention should be comprised of a genuine definite world use, a claimed utility that is comprised of carrying out further research in order to substantiate or classify use in perspective of the real world.
  3. Novelty-This requires that the invention should be original. This means it should not have been used by others prior to its invention by the claimant of the patent. In order to enjoy this obligation, the new invention must be new in difference to the art that lies ahead.
  4. Non-obviousness-The test used for this requirement is establishing whether the matter needs to be patented and the preceding art are such that the matter of the subject as one would be clear to have ordinary talent in art during the period of invention.
  5. Enablement-This is an obligation that is directly connected to the revelation or requirement which can be incorporated as a component for each of the patent application. Enablement is viewed as having 3 distinguishing revelation which include; enablement necessity, written description necessity and best mode necessity. Each application of patent needs to include specification that tells the invention mechanisms, as well as one or more claims at the stages of closing of specification that states the exact legal meaning of invention. In order to meet this requirement, the specification or design need to illustrate invention with adequate distinctiveness that someone has ordinary talent in art has the capability of using and making the claimed invention which is devoid of any “unnecessary experimentation”.

Process of Obtaining a Patent

Prior to following the procedure to obtain a patent, an inventor is supposed to ensure all the products meet the 3 Image 2lawful requirements which include non-obviousness, utility and novelty. Innovations make it possible for the process to be distinct in the market. The law as well entails invention ought to be different before the products or technology gets into the market. The last legal requirement that must be met is utility. This entails the process should provide significant intention.

Pre-Application

There is the suggestion that inventors should take the following processes before they start the process of seeking a patent: Maintain an invention record, comprised of specification, diagram as well as other adjustments that are made along the way. Other investors might also come up with typical examples. As necessity, the invention should attain the merit for patent application. This includes that it should be outstanding, able to measure up to other products and the application of patent should occur within the scope of a year from when the product is publicized. Inventors are supposed to assess the market to establish invention capability before they use time and money to go through the procedure of application. Inventors are also supposed to carry out complete investigation of patent. One can start this process of getting a patent through visiting the Web.

Specifications

The primary process of getting a patent starts with making the specifications. This provides a description of invention which is specified to allow an individual with knowledge in the area to make a duplication of the invention without going through experimentation. Specifications are also supposed to show the best techniques for creating then putting the invention to use. Regularly, these credentials are comprised of several components such as the title of the invention, background, summary and brief introduction.

Claims

These are complete declarations that brief what the invention is about. Majority of people take this process as one of the most significant steps to getting a patent. The inventor is supposed to provide boundaries within their creation. This helps to draw awareness on other inventors in case they should cross the line and breach the legal rights of the inventor. The language claims, including words and phrases and manner in which they are put together is of great importance.

Drawings

Normally, drawings are a requirement for demonstrating the manner in which individual invention operates. They are supposed to plainly demonstrate characteristics documented in the claims made regarding the invention. There are precise provisions for drawings that the inventor must follow. If invention is illustrated and translated through use of a drawing, then the drawing becomes necessary to be part of the patent application.

Filing the Application

The last stage that is part of the process in obtaining a patent is filing the actual application. This can be filed through use of electronic system and mail. The inventor is supposed to create copies of each page given out in the application. The inventor can also receive evidence of receipt; fasten a self-addressed official postcard to the first age of patent application. The card is supposed to contain comprehensive information regarding the inventor; the information might be in the form of; name, date when the filing was done and completed as well the title given to the invention. The card is also supposed to have all documents integrated with application and number of pages for all documents.

A patent makes it possible for the holder to enjoy exclusive privilege. It can be imposed against or sold licensed such that an infringer pays damages or acquires an injunction. It can be worth a large amount of money too as well. A good example of large grants in patent infringement lawsuits is C.R Bird v. W.L. Gore case where the jury awarded to Bard an amount that totaled to $ 371 million (Pritzker n.p).

On February 10th 2012, in a 2-1 judgment, the Federal Circuit of Appeals drew the “ultimate curtain” over a decade’s long patent battle between CR. Bard Inc. and W.LL. Gore & Associates. The landslide win for Bard came after a row that lasted for 38 years and which had been presented before the Federal Circuit three times. In the final ruling, the Federal Circuit make the ruling that Peter Cooper, the Gore plant manager, who apparently worked with David Goldfarb, a researcher, to test prospective use of Gore-Tex as a prosthetic blood vessel was not co-inventor of the medical patent that was in contention. The Federal Circuit, in addition further ruled that the lower court judge made the appropriate action within her jurisdiction in doubling compensation award taking into account the discovery by the jury regarding the willing fullness and continued violation of the patent by Gore regardless of losing repeatedly in court (Quizon, 2012).

Steven Cherny, a couple of weeks before his selection as C.R.Bard, Inc.’s new trial attorney in the violation case against W.L. Gore & Associates, Inc. had a brief panic attack. The response was a logical one. Ideally, if the Fish & Neave associate, had actually figured out what he was becoming part of while joining the Bard case in 2004, he would have being frightened. He would have being aware of the long history the case had. For three decades, Gore had been fighting for the ownership of fabricated blood vessel, referred to as vascular graft, which changed the face of vascular surgery. Barely after a twelve year contentious court proceeding aimed at establishing the actual inventor of the device and two trips to United States Federal Circuit, Gore’s ownership claim was rejected by the Patent and Trademark Office eventually in 2002. Gore, however, would not give in to defeat.

The corporation, which was making tens of millions of dollars every year from sale of the grafts declined to make payments to Bard for licensing fee, claimed without concession to the squabbles irony regarding the patent it had fought for thirty years to attain as actually invalid. Lastly, in order to have power over the patent rights and the privileges, Bard was able to file a suit for infringement against Gore. Cherny was not deterred by the extent of time as he had already worked on other long running suits. He was not worried about the technological complication of the case (Frankel, 2009).

In 1983, 9 years after the clashing patent submissions of the vascular graft were filed, the Patent Office affirmed “interference”. The assessor of the patent, in other terms ascertained that the graft was a patentable innovation and both Goldfarb and Cooper had filed for the legit applications.

The intrusion, which was to be done by the Board of Patent Appeals and Interferences office, would have to determine whether Cooper or Goldfarb were the actual inventors. It took another 12 additional years for a decision to be reached-making it the largest interference in the history of Interference proceeding. This led to a 15,000 page as well as one extremely sad encounter. The lawyer hired by Bard for the Interference, Lawrence Green, and ousted Peter Cooper as Gore’s purported inventor. Cooper had managed to cash out of Gore shortly after his name was attached to the patent application of the vascular graft.

Where there was substantial evidence available to support a verdict that an individual had infringed the vascular patent the Court of Appeals, the Court of Appeals in Washington made a ruling that included royalties, fees and interest like for instance, when Gore owed $ 783 million as of June, Bard, in a regulatory filing dated the previous year.

A case involving dispute over a tube that aids in maintaining the shape of blood veins through use of same substance as that of DuPont Co.’s Teflon, in 2003 was similar to the patent held by Gore. The ruling attracted a penalty of close to $ 1 billion for Bard, adding $ 1 a share yearly pay as stated by Raj Denhoy, an analyst with the New York based Jefferies & Co. in a note to clients. Though the proceedings are not anywhere close to finished. Bard is close to the end line.

At the close of New York trading, Bard roe to a higher percentage which was the highest since 30th November. Later, the Federal jury in 2007 found Gore has infringed a Bard patent and awarded $185.6 million in damages. The U.S District Judge, later doubled this amount on the basis of the jury discovering the infringement was done on purpose.

The judge, told Gore to start paying royalties of 12% to 20%, based on the type of Gore grafts. The 3-bench judge appeals committee made the argument that Murguia acted within her powers in order to decline the request made by Bard to stop sales of Gore.

Murguia passed the judgment Gore should have the capability of retaining sales on the market since it was public opinion to allow competition in the medical products field. While initially Bard laid complains in 2003, the court of appeal said the dispute dated back to 1974, which meant that the matter was not recent. Initially, the patent requested in 1974 and issued in 2003 indicated there was a dispute as to who was the first to make the invention.

The Federal Circuit, which initially passed judgment that a researcher with Gore was not the primary inventor. Another patent issue is that of Falana v. Kent State University. In the dispute, the Federal Circuit made the declaration that the court’s ruling that Falana was the primary inventor of the patent argued a genus of chemical substance. The Circuit as well concluded it lacked jurisdiction of arriving at a prize of attorney fees because the district court was yet to state the amount of that prize as such, not finalizing it. Alana took legal action against the University and mentioned the inventors on face of the U.S 789 patent, searching for correction of inventor ship.

Falana also said he had inappropriately not being included among the inventors of the ‘789 patent which was associated with chiral additives for liquid crystal displays. While working at Kent Research organization, Falana thought of finding upgraded chiral additives with the aim of including temperature independence. He also came up with the technique for synthesizing novel class of naphthyl a version of Compound 7. The compound failed to attain required target for temperature independence but it was seen as a great improvement. Later, in 2000 after Falana left, the stated inventor used the technique applied by Falana to synthetize Compound 9 which was able to attain the target for temperature independence.

At the judgment, the court realized Falana was part of the inventors. The defendants said the argument needed high temperature independence but the district court refused as they did not find any help in such a position in the light of the arguments. The Federal circuit made the declaration that it approved the claim of language enclosed a genus of chemical compounds that were not restricted by temperature independence. The court also approved inventor ship final decision giving overall direction on conception of chemical genus. Falana’s lack of specific involvement with compound 9 failed to put him off from the list of investors of broader genus which was covered by the claims.

The district court stated the case was outstanding and offered Falana his attorney’s award but never valued them preceding the appeal. The Federal Circuit finalized it insufficient jurisdiction to come up with a fee award since it was not final. The Federal Circuit, in the ruling failed to practice pendant appellate jurisdiction. The court as well gave the ruling under jurisdiction which allowed interlocutory appeals of fee awards that were not valued in infringement cases which were not applicable to the inventor ship dispute.

The Federal Circuit in the end concluded the trial court prohibited some of the documents which were revealed allegedly by Falana were not novel and was a harmless mistake where the stated originator was permitted to provide details to the allegations.

 

Work Cited

Dyanna, Quizon, “Federal Circuit Affirms Huge Award for Bard in Decades-Long Suit” February 15, 2012. Web. November 7. 2013. <http://blogs.findlaw.com/federal_circuit/2012/02/federal-circuit-affirms-huge-award-for-bard-in-decades-long-suit.html>

Lemley, Mark, “Rational Ignorance at the Patent Office. Northwestern University Law Review, Volume 95, Issue. 4, 2001.

Randy,  Pritzker, “ Building and Monetizing a Patent Portfolio,” Wolf Greenfield. Executive Counsel-December 2010.

Pipers Intellectual Property, (n.d). Patents – Protecting New Innovations and Inventions. Retrieved on 9 November 2013 from http://www.piperpat.com/page/new-innovation-patents

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