Contemporary Views on Economics of Patents

2018 ◽  
Author(s):  
Shubha Ghosh
Keyword(s):  
Property Rights ◽  
Patent Law ◽  
Third Party ◽  
Policy Debate ◽  
Patent Owner ◽  
The Public ◽  
Injunctive Relief ◽  
Patent Landscape ◽  
Patent Rights ◽  
Exclusive Right

A patent is a legal right to exclude granted by the state to the inventor of a novel and useful invention. Much legal ink has been spilled on the meaning of these terms. “Novel” means that the invention has not been anticipated in the art prior to its creation by the inventor. “Useful” means that the invention has a practical application. The words “inventor” and “invention” are also legal terms of art. An invention is a work that advances a particular field, moving practitioners forward not simply through accretions of knowledge but through concrete implementations. An inventor is someone who contributes to an invention either as an individual or as part of a team. The exclusive right, finally, is not granted gratuitously. The inventor must apply and go through a review process for the invention. Furthermore, a price for the patent being granted is full, clear disclosure by the inventor of how to practice the invention. The public can use this disclosure once the patent expires or through a license during the duration of the patent. These institutional details are common features of all patent systems. What is interesting is the economic justification for patents. As a property right, a patent resolves certain externality problems that arise in markets for knowledge. The establishment of property rights allows for trade in the invention and the dissemination of knowledge. However, the economic case for property rights is made complex because of the institutional need to apply for a patent. While in theory, patent grants could be automatic, inventions must meet certain standards for the grant to be justified. These procedural hurdles create possibilities for gamesmanship in how property rights are allocated. Furthermore, even if granted correctly, property rights can become murky because of the problems of enforcement through litigation. Courts must determine when an invention has been used, made, or sold without permission by a third party in violation of the rights of the patent owner. This legal process can lead to gamesmanship as patent owners try to force settlements from alleged infringers. Meanwhile, third parties may act opportunistically to take advantage of the uncertain boundaries of patent rights and engage in undetectable infringement. Exacerbating these tendencies are the difficulties in determining damages and the possibility of injunctive relief. Some caution against these criticisms through the observation that most patents are not enforced. In fact, most granted patents turn out to be worthless, when gauged in commercial value. But worthless patents still have potential litigation value. While a patent owner might view a worthless patent as a sunk cost, there is incentive to recoup investment through the sale of worthless patents to parties willing to assume the risk of litigation. Hence the phenomenon of “trolling,” or the rise of non-practicing entities, troubles the patent landscape. This phenomenon gives rise to concerns with the anticompetitive uses of patents, demonstrating the need for some limitations on patent enforcement. With all the policy concerns arising from patents, it is no surprise that patent law has been ripe for reform. Economic analysis can inform these reform efforts by identifying ways in which patents fail to create a vibrant market for inventions. Appreciation of the political economy of patents invites a rich academic and policy debate over the direction of patent law.

scholarly journals State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the Covid-19 Crisis and Beyond

2020 ◽  
Vol 23 ◽  
pp. 1-35
Author(s):  
Mikhalien Du Bois
Keyword(s):  
South Africa ◽  
State Government ◽  
Patent Law ◽  
The State ◽  
Patent Owner ◽  
Canadian Law ◽  
Patent Rights ◽  
The Republic ◽  
The Government ◽  
Suitable Framework

This article views section 4 of the Patents Act 57 of 1978 against section 25 of the Constitution of the Republic of South Africa, 1996 and Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (hereafter TRIPS). The purpose is to find a suitable framework for the state/government use/utilisation of patented products or processes for public purposes. A comparison is done with the Crown use provisions in United Kingdom, Australian and Canadian law to find a suitable approach to questions relating to remuneration for state use, the prior negotiations requirement set by Article 31 of TRIPS, and the public purposes and exclusive patent rights that would be included under state use. The COVID-19 international pandemic has caused a state of national disaster in South Africa, which is exactly the kind of situation of extreme urgency envisioned by the exception in Article 31 of TRIPS, which permits the state use of patents without requiring prior negotiations with the patent owner. In the battle against COVID-19 and its concomitant fallout, the South African government (and authorised private parties) would be permitted to utilise patent rights without explicit authorisation from the patent owner and without prior negotiations, but subject to the payment of reasonable remuneration by the government and other terms and conditions as agreed upon or as determined by a court. This may include making (manufacturing), using, exercising, and importing patented products (for example, personal protective equipment, pharmaceuticals, ventilators and diagnostic tests) deemed necessary in the fight against COVID-19. Foreign jurisdictions considered in this article indicate that section 4 of the Patents Act 57 of 1978 may certainly benefit from an update to provide detailed guidance on the state use of patented products or processes for public purposes. In the interest of a timeous offensive against the COVID-19 virus, the patent provisions need a speedy update to allow state use compliant with TRIPS and the Constitution of the Republic of South Africa, 1996.

scholarly journals Pelindungan Hak Paten atas Pengetahuan Obat Tradisional Melalui Pasal 26 UU No. 13 Tahun 2016 tentang Paten (Protection of Patent Rights on Traditional Medicine Knowledge Through Article 26 of Law No. 13 of 2016 Concerning Patents)

2019 ◽  
Vol 10 (1) ◽  
pp. 49-65
Author(s):  
Trias Palupi Kurnianingrum
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Traditional Medicine ◽  
Traditional Knowledge ◽  
Intellectual Property Rights ◽  
Trips Agreement ◽  
Patent Law ◽  
Benefit Sharing ◽  
Traditional Medicines ◽  
Patent Rights

Patent as a branch of Intellectual Property Rights (IPR) serves to protect inventions on the field of technology, one of them being medicine. The rise on the number of cases on the theft of genetic resources and traditional knowledge on the field of medicine for commercialization purposes shows that the protection of patent rights on traditional medicine knowledge is still not optimal. This article is the result of a normative juridical research which is supported by an empirical data, examines the protection of patent rights on traditional medicine knowledge and the implementation of Article 26 of Law No. 13 of 2016 on Patents (Patent Law year 2016). In the research results, it was mentioned that even though the TRIPs Agreement did not accommodate the traditional knowledge, the presence of Patent Law year 2016 complemented the Indonesian government's efforts to save the knowledge of traditional medicines from biopiracy and misappropriation. It is necessary to regulate the disclosure obligation in TRIPs agreement and further mechanism regarding benefit sharing and granting access to traditional medicines knowledge. AbstrakPaten merupakan salah satu cabang Hak Kekayaan Intelektual yang berfungsi untuk melindungi invensi di bidang teknologi, salah satunya obat-obatan. Maraknya kasus pencurian sumber daya genetik dan pengetahuan tradisional di bidang obat-obatan untuk tujuan komersialisasi menunjukkan bahwa pelindungan hak paten atas pengetahuan obat tradisional masih belum maksimal. Artikel ini merupakan hasil penelitian yuridis normatif yang didukung dengan data empiris, membahas mengenai pelindungan hak paten atas pengetahuan obat tradisional dan implementasi Pasal 26 Undang-Undang Nomor 13 Tahun 2016 tentang Paten (UU Paten 2016). Di dalam hasil penelitian, disebutkan meskipun Perjanjian Trade-Related Aspects of Intellectual Property Rights (TRIPs) belum mengakomodasi pengetahuan tradisional namun hadirnya UU Paten 2016 melengkapi usaha pemerintah Indonesia dalam menyelamatkan pengetahuan obat tradisional dari biopiracy dan misappropriation. Perlu pengaturan kewajiban disclosure di dalam Perjanjian TRIPs dan mekanisme lebih lanjut mengenai benefit sharing dan pemberian akses atas pengetahuan obat tradisional.

International Protection of Intellectual Property Rights: Special Refrence with Intangible Properties and Copyright Laws.

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Rohit P Singh ◽  
Shiv Kumar Tripathi
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Public Interest ◽  
Copyright Law ◽  
Patent Law ◽  
International Protection ◽  
The Public ◽  
Copyright Laws ◽  
Rapid Pace

In view of the rapid pace of technological, scientific and medical innovations in India and abroad, the intellectual property rights i.e., copyright, patent and other neighboring rights, have been recognized in Indian and foreign jurisdiction. Moreover, its scope and content have expanded pursuant to statutory amendments over the years. Growing recognisiont, expansion and protection of IPRs needs to harmonised with the public interest. Within this backdrop, copyright law, patent law etc. have made elaborate provisions and endeavours have also been made at international level to strike a balance between protection of individual’s IPRS and social interest. The present article tries to examine the contours of protection of IPRS at national and international levels with special reference to copyright law.

scholarly journals yeni susanti_165100114

2019 ◽  
Author(s):  
Yeni susanti
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Law ◽  
Applicable Law ◽  
Patented Product ◽  
Patent Rights ◽  
Full Power ◽  
The Government ◽  
Law Regulation

The basis of patent law itself is very complete explained in the patent law regulation number 14 of 2001. In the government-compiled law it is written that the filing of patent rights on an invention or invention has requirements that need to be fulfilled.In Indonesia, patents will be highly protected to protect the intellectual property rights of every Indonesian. According to the applicable law, namely Number 14 of 2001 inventor who has patent rights for a product or idea, has full power and can process persons who commit plagiarism, distribute and trade the patented product into legal channels in accordance with the basis of patent law regarding violations of criminal provisions in Chapter XV.

Why SEPs have been involved in Antitrust Cases – From A Chinese Scholar’s Perspective

2017 ◽  
Vol 15 (1) ◽  
pp. 72-87 ◽  
Author(s):  
Xiaoye Wang
Keyword(s):  
Public Interest ◽  
Standard Setting ◽  
Patent Law ◽  
Antitrust Law ◽  
Antitrust Enforcement ◽  
Technical Standard ◽  
The Public ◽  
Injunctive Relief ◽  
Standard Essential Patents ◽  
Antimonopoly Law

AbstractIf patents have been included in a technical standard and thus have become standard essential patents (SEPs), the SEP holders normally have to commit to the Standard Setting Organization (SSO) to license their SEPs on fair, reasonable and non-discriminatory (FRAND) terms. Although the FRAND commitments already put constraints on the patentees, more and more disputes over FRAND licensing fees involving SEPs are reaching antitrust enforcement agencies and courts, perhaps due to the fact that the FRAND commitments are often not workable. As demonstrated in the case Huawei v. IDC in Chinese courts, SEPs have special characteristics compared to non-SEPs, i.e. the licensing of SEPs relates more to the public interest, the holders of the SEPs may be thought to have dominant positions in the licensing market of their SEPs, the holder of the SEPs often have made commitments to license on the FRAND terms, and the holder of the SEPs should be allowed to use the injunctive relief only in limited circumstances. This article also proposes that Article 55 of the Chinese Antimonopoly Law (AML) should be reconsidered because it exempts the undertakings who exercise their IPRs in accordance with the laws and administrative regulations on IPRs from the application of the AML. However, as this article shows, the excessive royalty requested or the injunction sought by the holder of SEPs may not violate the patent law, but nonetheless may violate the antitrust law.

scholarly journals LEGAL PROTECTION OF PATENT RIGHTS IN INDONESIA

2019 ◽  
Author(s):  
ega yuliani
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Protection ◽  
Legal Protection ◽  
The Public ◽  
Patent Rights ◽  
The Government ◽  
The Right ◽  
Privately Owned

AbstractIntellectual Property Rights are rights derived from the work, initiative and creativity in the form of a real man. Intellectual Property rights consist of privately owned property and Industry. Patents are part of Intellectual Property Rights in Industry. Patents are granted the right of the government and is exclusive. Exclusive rights of patent holders is the production of a patented item, usage and sales of goods and deeds relating to the import and sale of such goods store. Legal protection of intellectual property rights in the patent field ketetentuan regulated in Law Number 14 of 2001. In chapter 8, paragraph (1) time protection for 20 years from the date of receipt and can not be extended. And Article 9 set period of patent protection for simple for 10 (ten) years and can not be extended. Protection of intellectual property rights is no guarantee to the public to respect the right of initiative and the reaction and to provide protection will upload their work. The higher appreciation of the intellectual property rights of a nation then the future will be better.

scholarly journals Intellectual Property's First Sale Doctrine and the Policy Against Restraints on Alienation

2020 ◽  
Vol 7 (3) ◽  
pp. 497-541
Author(s):  
Lorie M. Graham ◽  
Stephen M. McJohn
Keyword(s):  
Intellectual Property ◽  
Copyright Law ◽  
Copyright Owner ◽  
Real Property ◽  
Patent Owner ◽  
Computing Device ◽  
The Public ◽  
First Sale ◽  
Exclusive Right ◽  
First Sale Doctrine

The first sale doctrine decouples intellectual property and physical property. Suppose, at an auction at Sotheby’s, someone bought a contemporary painting by Chuck Close. The buyer now owns the physical painting, but the copyright to the painting remains with the owner of the copyright—the painter Chuck Close or whomever Close may have transferred the copyright to. Absent the first sale doctrine, if the buyer either sold the painting or displayed it to the public, the buyer would potentially infringe the copyright in the painting. The copyright owner has the exclusive right to display copies (including the original, the first copy) of the painting to the public and to distribute copies to the public. However, the first sale doctrine provides that the owner of an authorized copy may display or distribute that particular copy without infringing. The distribution right and display right no longer apply; these rights are “exhausted.” Permission from the copyright owner is not required to resell copyrighted works or to display them. First sale permits a broad swath of activity. Used bookstores, libraries, swap fests, eBay, students reselling casebooks, and many more may rely on first sale to protect their distribution of copyrighted works. Museums, galleries, archives, bookstores, and more can likewise display their copies of copyrighted works without infringing under first sale. First sale (more commonly called “exhaustion” in patent law) also applies to patented products. Someone who buys a patented product (such as a pharmaceutical, computing device, or printer cartridge) can use or resell that product without infringing the patent, even though the patent owner has the rights to exclude others from using or selling the invention. First sale enables markets for resale or lease of patent products, from printer cartridges to airplanes. First sale has its limits. In copyright, it applies only to the rights to distribute and to display the work. The copyright owner also has the exclusive right to make copies, to adapt the work, and to perform the work publicly, which are not subject to first sale. The painting buyer would potentially infringe if the buyer made a copy of the painting or adapted it into another artwork, but the buyer could not infringe the performance right, because one cannot perform a painting. The owner of a copy of a musical work may infringe if she performs it in public, which is why bars need licenses to play copyrighted music, even using copies they have purchased. The owner of a copy of a movie may infringe if she adapted the movie, such as making a sequel—or even dubbing the movie in another language. In patent, first sale likewise would not authorize the purchaser of a product to make additional copies. Similarly, first sale in patent would authorize the buyer of a patented item to use it or resell it, but not to make another one. First sale is long-established, by statute in copyright and by judicial interpretation in patent. The underlying policy of first sale, however, has been unsettled. First sale can be seen to rest on either of two rationales. The first is a contract-based, gap-filler approach. If someone sells a painting, one would expect an implicit agreement that the buyer could display the painting or resell it, as both actions are customary with artworks. To simplify transactions, the rights to resell and display are automatically included in the transaction. The other justification is the policy against restraints on alienation, borrowed from the law of real property. Someone who sells property may not impose unreasonable restraints on the buyer’s ability to resell the property. As transplanted to intellectual property law, once a party voluntarily parts with a copy, she should no longer be able to control what the buyer does with it. Hence, her rights are “exhausted” in that particular copy. The underlying rationale is important for determining the extent of the first sale doctrine. If first sale is a gap-filler, then the parties could contract around it, agreeing that the property sold would not be subject to first-sale rights. If first sale is a policy-based bar against unreasonable restraints on alienation, then first sale is mandatory—it is not subject to the agreement of the parties but rather is the opposite: a limit on the enforceability of their agreement. Both strains can be seen in the case law. Two recent Supreme Court cases, however, decisively rested first sale on the restraints-against- alienation rationale, expressly rejecting the proposition that parties can contract around first sale. This Article explores the implications of those cases for the boundaries of first sale, focusing on two issues. First, California’s resale royalty law required that artists receive 5% of the proceeds on resale of their work. The Ninth Circuit held that the California statute was preempted by the first sale doctrine of federal copyright law. We conclude that, if first sale serves to prevent unreasonable restraints on alienation, such resale royalty statutes should be valid. Rather than an unreasonable restraint on alienation, they permit resale, imposing a modest burden for a purpose entirely consonant with copyright law: rewarding authors. Second, software sellers have long avoided first sale by characterizing software sales as mere licenses, while formally retaining ownership of the software after delivery to the buyer. Courts have enforced transactions according to the parties’ contract. We conclude, however, that such transactions, which are intended to prevent resale of software, should be characterized as sales in substance, triggering first-sale rights to resell the software, overriding the contractual restraint on alienation.

scholarly journals Expert Examination of the Use of a Dependent Invention and a Dependent Utility Model Under the Law of the Russian Federation

2018 ◽  
Vol 7 (3.14) ◽  
pp. 340
Author(s):  
Vladimir Evgenievich Kitaiskiy ◽  
Evgeniy Nikolaevich Petrov ◽  
Vera Vladimirovna Shvedova
Keyword(s):  
Russian Federation ◽  
Civil Code ◽  
Patent Law ◽  
Utility Model ◽  
Patent Owner ◽  
Utility Models ◽  
The Russian Federation ◽  
The Law ◽  
The Right ◽  
Exclusive Right

The article deals with such objects of patent law as inventions and utility models, the use of which by patent holders in some cases is limited by the rights of other patent owners in accordance with the requirements of the Civil Code of the Russian Federation, as amended on March 12, 2014. Such inventions and utility models are called dependent. In fact, these are improvements to other inventions and utility models, to which the exclusive right applies. The patent owner of such a dependent object of patent law may legitimately use his invention or his utility model only upon obtaining the right to use another (main) object of patent law or at its alienation from the legal owner. For this, it is necessary to reveal the dependence of one's object of patent law on another (main) object. The article shows how it is possible to identify such dependence under the existing patent legislation of the Russian Federation.  

scholarly journals Use of Patent Rights

2019 ◽  
Author(s):  
oky wijaya
Keyword(s):  
Patent Law ◽  
The State ◽  
Patent Holder ◽  
Market Position ◽  
The Public ◽  
Patent Rights ◽  
Good For

Patent is a special right granted by the State to the inventor for his findings in the field of technology for a certain period of time the implementation of this invention is to give his consent to others to implement (Law No. 6 of 1989) 1. The holder of the patent is the inventor as the patent holder or party who receives this right and is registered in the Patent List. Patent rights are regulated in Law Number. 14 of 2001 concerning Patents (hereinafter referred to as the Patent Law). At present, many cases violate special patents in industry. This causes because there are so many products that are released freely and already known by the public, so that there are attempts to imitate other parties to obtain the same market position with related products, and of course to produce products that are good for their products.

scholarly journals LEGAL PROTECTION OF PATENT RIGHTS IN INDONESIA

2018 ◽  
Author(s):  
ega yuliani
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Protection ◽  
Legal Protection ◽  
The Public ◽  
Patent Rights ◽  
The Government ◽  
The Right ◽  
Privately Owned

AbstractIntellectual Property Rights are rights derived from the work, initiative and creativity in the form of a real man. Intellectual Property rights consist of privately owned property and Industry. Patents are part of Intellectual Property Rights in Industry. Patents are granted the right of the government and is exclusive. Exclusive rights of patent holders is the production of a patented item, usage and sales of goods and deeds relating to the import and sale of such goods store. Legal protection of intellectual property rights in the patent field ketetentuan regulated in Law Number 14 of 2001. In chapter 8, paragraph (1) time protection for 20 years from the date of receipt and can not be extended. And Article 9 set period of patent protection for simple for 10 (ten) years and can not be extended. Protection of intellectual property rights is no guarantee to the public to respect the right of initiative and the reaction and to provide protection will upload their work. The higher appreciation of the intellectual property rights of a nation then the future will be better.

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