Patents
PatentAgentip is a Malaysian registered patent agent and it provides patent search, drafting, filing, licensing and infringment litigations for the territories of Malaysia, Singapore and other major countries around the globe.
What are Patents?
There are two categories of patents as categorized by the Unied States Patent office, and they are, ‘utility patents’, and ‘design patents’.
Utility patents are the most common type of patents, and when people talk of patents, they normally refer to this category. For an invention to be patented, an item must fulfill three conditions:
- 1) it must possess utility,
- 2) it must be novel, and
- 3) it must be non-obvious.
What does it mean by a ‘utility’ feature?
It means that it can be use to perform something. So for an invention, it must be able to be used for performing something, for example like using a spade to dig up earth. And utility is for a physical act, and not by using software to perform a certain function on a computer. However, the US Patent office does accepts software patents for some time now, but due to much objection from the software using public, it might not be acceptable later on. For the rest of the world, software’s are not patentable.
It must be novel!
To be novel, the invention must be new, and that means that it should not be found in anywhere else. It means newness, so if you come up with another spade design, it must have features beyond what the normal everyday spade has. And the reason why it take a few years to obtain a patent is because the examiners at the patent office will have to inspect all those prior inventions to see if the inventive feature had already been documented. Sometimes, hundreds of thousands of files have to be grossed over just to determine any novelty.
What about non-obvious?
It is a bit hard to say whether some act is non-obvious or not, so the general term is used to mean if it is not ‘obvious’ to the people skilled in that particular art, then it is said to be non-obvious. For example, if you come up with a spade that also have a micro-chip that can analyze the earth as you were shoving, then your invention is considered having a non-obvious feature to most users of spades. So do you have an invention in your hand?We may not know for sure as the job of determining whether it qualifies as an invention rest solely on the hands of the Patent Office examiner, but in case you need a third opinion, send us a question. Click here to send your query to us
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The patent system stimulates innovation. Or is it not?
As the patent system has been in force for hundreds of years now, it is generally thought of as a way to encourage new ideas and innovations. The number of filed inventions throughout the world numbered in the multiple millions and it does indicate that it really works. When there is protection, people will not be afraid of telling about their secrets, and having the confidence that they will not be cheated by others copying them. However, there is also a small group of thinkers who believes that the system is actually stifling more innovations. And one of the most glaring examples of patents being an impediment to innovation is in the computer software sector.
There have been plenty of debates on this issue and in an apparent support for the cause of dismantling the system, a study done by Bill Tomlinson of the University of California, and Andrew Torrance of the University of Kansas School of Law shows that the system does indeed stifle innovation! In an online stimulation game that they devised called PatentSim, it glaringly showed that participants “performed” much better if they are no constraints such as those normally instituted by the present system. In stimulations, participants were more likely to innovate when no protection is offered. Using the model of open source, participants were able to share their ideas with others, thus expanding on their original ideas to a level that is not possible if there were constraints of idea protection. Perhaps there is a real need of new thinking on the patent system now in view of greater need to bring in innovations in greater numbers, such that we can survive in a world of fast climatic change!
July 3, 2009
Invalidate that patent now
Article One Partners have found that almost 45 percent of all litigated patents are eventually found to be invalid in the US. The reason is that the US Patent Office has been unable to reasonably process the large number of applications bag logged from a decade ago. Article One has started on a project to help litigated firms to invalidate patents that are contentious. It believes that the invalidates could reach one billion dollars in value terms. A case in point was that Research In Motion (RIM) was made to pay $600 for a patent infringement that was later found to be invalid.
The point should be asked as to why there are so many cases that could not hold water? There are many reasons but the main one could be because the US Patent Office is deluged by such a large number of applications that it could not possibly work. Another reason is that because the examiners have a quota to fulfill, there is a tendency to reject cases outright without a proper study and to those that have passed the first round of approval gets through speedily without a proper investigation into prior claims. Then there is a good suspicion that examiners, at least for those that have been working for decades are generally lacking in the latest knowledge.
In pioneering the sector for invalidating patents for clients that are undergoing infringement lawsuits, Article One is proposing a good remuneration for investigators that have sufficient knowledge to come up with evidence. This is of course a new sector for the intellectual property environment and one that will definitely help in mending the broken US patent system, and perhaps also for those in the fast development markets, especially China and India. As an aside, there is a proposal to use Peer-to-Peer infrastructure to help reduce the bag logged cases. Such an endeavor could also bring about a total re-engineered of the global patent system and bring an end to the long and frustrating of intellectual property filings. A mood point to remember is that the system has a few hundred years legacy, and it does not look good in our world of instant gratification brought about by computerization.
September 26, 2009
Who owns the intellectual property right, the researcher or the university?
The question was ignited again recently when the Federal Court of Australia judged that the University of Western Australia (UWA) did not have any rights to the intellectual property granted to Dr Bruce Nathaniel Gray. It is noted that although Dr Gray is a full time researcher at the university, and thus is governed by the terms of his employment with the UWA, the trial judge was of the opinion that there was no implied terms for Dr. Gray to invent as part of his employment, and thus the university cannot lay claim to any intellectual property rights to any inventions arising from Dr. Gray’s employment. The UWA then took its appeal to the Federal Court, but unfortunately for them, the Federal Court also concurred with the decision of the lower court. Further readings about the case can be read here
October 12, 2009.
Now the US court says academics owns the right, not the university!
In almost every part of the world, universities have accorded themselves the right to ownership on the inventions created by their academics. The reason is that these academics are using state funds and facilities and should morally assign their inventions to the university. But there are a few exceptions like in Japan, where the inventors have the full rights. The system seems to work well so far, albeit with ever increasing unease, especially among researchers who have not been given the right to choose their partners for commercialization. In the US, there is a clear clause stating the university as given the right of ownership and the inventor has a right to part of the revenue from any licensing done with third parties. This came about in 1980 when the federal Bayh-Dole Act was enacted and adopted. It is the normal practice here that researchers who have come up with ideas and inventions must assign them to the university’s technology transfer unit. The inventors would normally have no say as to who to partner with when a commercialization deal is arranged.
In a recent court judgment dated 30th of September, involving the Leland Stanford Junior University, the judge Richard Linn rejected Stanford's argument that one of the inventors' assignments of rights to another entity, Cetus, was voided, even though it was stated in the Bayh-Dole enactment that the university has the right of ownership. The judge also said that Bayh-Dole does not automatically void ab initio the inventors’ right in government funded projects. Judge Linn also said that normally, the ownership of intellectual properties derived from state funded projects is the prerogative of the state courts, but there are exceptions to the rule, and in this case, the Federal courts should be given the right to resolve any contractual language binding the parties.
The judge found that although the legislation requires a university to act as coordinator for inventions made with federal funds, it does not mean the university owns the intellectual property or that the institution should be the sole means of commercializing it. According to judge Linn’s interpretation, the term “agreed to assign” by the inventor to the university dos not constitute “an immediate transfer of expectant interests”. Further more, there is no clause to say that the assignment was immediate at the time the invention was created. As the Bayh-Dole Act is a thirty year old enactment, there is a concern that this act might have seen its better days and should be repealed, or if not then amended. Certainly, there is a feeling all around that the inventors should be given the choice as to whom they choose as their partners for commercialization. They would know better, rather than the administrators of the university board.
This is of course not the first case, and certainly not going to be the last case. When inventors are given the choice to choose their partners, it would stimulate more inventions. And as part of the government’s intention to overhaul the patent system, and in particular in the academics, repealing the Bayh-Dole Act, or amending it to reflect on the present circumstances, will, propel the US economy forward. Will this verdict bring up more cases?
November 2, 2009.
