scholarly journals APLICATION OF THE PRINCIOLE OF EQUIVALENTS IN THE RESOLUTION OF PATENT DISPUTES: ANALYSIS OF FOREIGN CASE LAW

2020 ◽  
Author(s):  
Олена Штефан
Keyword(s):  
Patent Protection ◽  
Rapid Development ◽  
Legal Protection ◽  
The United States ◽  
Patent Law ◽  
Point Of View ◽  
Patent Infringement ◽  
Principle Of Equivalence ◽  
Doctrine Of Equivalents ◽  
The Doctrine Of Equivalents

Currently, the development of a modern economy is based on the rapid development of the latest achievements of science and technology, which in turn are the dominant indicators of state development. Globally, economic globalization and trade liberalization are accelerating, leading not only to the international division of labor, the expansion of markets and the corresponding increase in production, but also to an even greater intensification of competition, increasing the need for innovation and their sound legal protection. The principle (doctrine) of equivalence, which the courts apply in the event of patent disputes, is inextricably linked to these processes. The article reveals the essence and specifics of applying the principle of equivalents by studying the specialized literature and conducting comparative legal analysis of foreign jurisprudence.Despite the fact that the principle of equivalence has attracted the attention of many experts in the field of patent law, however, no criteria and approaches have been developed to put it into practice. An analysis of the literature indicates that researchers focus their attention on determining the principle of equivalence.As a result of the analysis of doctrinal approaches to determining the principle of equivalence, it is concluded that at the legislative level there is no differentiation of features (elements), but there is an indication of the identity of the feature as equivalent. Therefore, the substitution of the characteristic (element) indicated in the claims by the equivalent may be recognized as equivalent from the technical point of view and not from the legal position. Usually, the principle (doctrine) of equivalents is applied after the grant of the patent, and the possibility of assigning features (elements) to equivalents can be evaluated by the real technical means that appeared after the grant of the patent.The principle of equivalents or the doctrine of equivalents is a legal doctrine that was developed in the United States of America in 1850-1860 to counteract imitation, substitution of minor or minor components of a patented invention, while maintaining its other essential identity, to avoid liability.In Germany, the courts have widely used the principle of equivalents in interpreting the formula when dealing with patent infringement cases. In England, the doctrine of equivalents was not used, and the traditional British approach to determining the scope of protection was to interpret the claims literally. The analysis of the jurisprudence of foreign countries on the application of the principle of equivalence in the resolution of patent disputes allows us to draw the following conclusions: the application of the principle of equivalence in resolving the question of the scope of patent protection of inventions strikes a balance between the fair protection of the exclusive rights of the patentee and a certain variation of the elements of the claims by third parties, which will not infringe the patent rights of the patent owners; in determining the limits of patent protection by interpreting the claims, the German courts resort to the principle of equivalence when the claims contain ambiguous restrictions such as numerical ranges; in English courts, patent  infringement and patent jurisdiction issues are dealt with in a single trial, whereby judges' reasoning in the prior art has a greater influence on the understanding of the claims, in contrast to German courts that exclusively deal with patent infringement rights without touching on the aspects of the patent power.The analysis of the Ukrainian legislation has led to the conclusion that the understanding of the principle of equivalence coincides with a literal interpretation of the claims, while the new application of a known  product or process is not foreseen, since the scope of legal protection of such inventions is exhausted only by their formula, and equivalent features are not taken into account.

scholarly journals PROTECTION OF APPLICABLE INVENTION PATENT LAW BASED ON THE TRACTS OF PATENT COOPERATION IN THE COMPUTER FIELD

2018 ◽  
Author(s):  
Andika carsya nafebra
Keyword(s):  
United States ◽  
Patent Protection ◽  
Legal Protection ◽  
Computer Programs ◽  
The United States ◽  
Patent Law ◽  
Extensible Markup Language ◽  
Markup Language ◽  
Presidential Decree ◽  
Extensible Markup

Very rapid technological development, especially in the field of computers resulted in form legal protection not only through patent protection against hardware but also patents on computer programs. Developments in developed countries have a tendency to patent protection that reaches protection against the formulation of algorithms even programming languages as supporting parts of computer programs such as Extensible Markup Language (abbreviated as XML), while in Indonesia, computer programs themselves are not objects of patent protection. Based on this, the author conducted a research in the form of a thesis with the aim to determine whether Extensible markup language can be an object protected by a patent based on Law No. 14 of 2001 concerning Patents in Indonesia in the case of an XML Patent registered in the United States registered with number 5,787,449 which has just become a dispute in the court in the United States between i4i and Microsoft and how it impacts after a verdict has stated that there has been a violation of an XML patent in another country ... The method used in this research is analytical descriptive method with a normative legal approach. the research conducted was library research and supported by field research through interview instruments. A Programming Language such as Extensible Markup Language cannot be an object that is protected by a Patent Law in Indonesia, the only protection for XML is indirectly protected by Patents, namely through the Treaty of the SamaPaten based on Presidential Decree No. 16 of 1996 where patents can be registered for regional protection fellow WIPO member countries. The existence of a computer program with the extensible markup language feature that has violated patents in the United States in relation to Presidential Decree Number 16 of 1997 in Indonesia does not have executorial power as it applies state-limited patents, except that XML has been registered through PCT Patent protection against XML is possible. By considering priority rights which are limited to retroactive conditions when the patent registration is first registered at least in one other country outside Indonesia.

Design Protection

2017 ◽  
Author(s):  
Barton Beebe
Keyword(s):  
Intellectual Property ◽  
Legal Protection ◽  
The United States ◽  
Patent Law ◽  
The European Union ◽  
Design Law ◽  
Definition Of ◽  
International Instruments ◽  
Design Protection ◽  
Ip Law

This chapter surveys the legal protection of industrial designs, understood as the protection of the appearance of articles of manufacture. It discusses the definition of “design” according to both the European Union (EU) and the United States (US). It examines the international instruments that form the foundation of industrial design law, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention, and the Berne Convention, among others. It then focuses on the various areas of intellectual property (IP) law that make up design law, including sui generis design protection law, patent law, copyright law, and trademark law among others, with particular attention on these aspects of design law as they feature in the US and the EU.

scholarly journals The role of cryptography in ensuring cybersecurity and protecting information about technologies of strategic and advanced development in the context of protection of sci-tech achievements in the BRICS countries

2021 ◽  
pp. 22-62
Author(s):  
Ksenia Michailovna Belikova
Keyword(s):  
Information Security ◽  
Patent Protection ◽  
The United States ◽  
Legal Regulation ◽  
Patent Law ◽  
Practical Significance ◽  
Technical Data ◽  
Brics Countries ◽  
Advanced Development

The subject of this research is the role of cryptography in ensuring cybersecurity and protecting information about technologies of strategic and advanced development in the context of protection of sci-tech achievements in the BRICS countries. The relevance of the selected topic is substantiated by the fact that modern countries, for example, the founder of computer industry – the United States along with the BRICS member-states, realize the importance and practical significance of cryptography in different spheres (military, civil) and aim to develop the means and systems of information security, establishing legal regulation for various aspect of its application. Such approach needs elaboration on the development and implementation of cryptography from the perspective of supranational and international law. It is determined that the currently used encryption methods are essentially based on the methods that use special mathematical algorithms built in computer software. Such methods are a substantial  but surmountable obstacle for acquiring copyright and patent protection. The examined legal orders evolve by encouraging the development of national cryptographic and software systems, and ensuring its protection by patent law under certain conditions and based on a number of principles that are taken into account in national legislation of the BRICS countries. Correlation of the effectiveness of ensuring information security using only patented encryption or with application of additional protection based on the provisions on commercial secret, demonstrated futility of using the latter. From the perspective of international (or supranational) law, cryptographic software is controlled within the framework of international agreements on distribution of technical data, military and dual-purpose products.

ALIENS AS INTERNATIONAL CIVIL PROCEDURE ACTORS IN RUSSIAN AND U.S. LAW: THE ISSUE OF INTERNATIONAL COMMERCIAL LITIGATION

2021 ◽  
Vol 10 (6) ◽  
pp. 193-223
Author(s):  
V.O. PUCHKOV
Keyword(s):  
International Organizations ◽  
Legal Protection ◽  
The United States ◽  
Civil Procedure ◽  
Point Of View ◽  
Procedural Law ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Legal Entities

The article examines the issue of the procedural status of various aliens (individuals and legal entities, international organizations and states) in the international civil procedure of Russia and the United States of America. The author comes to conclusion that the determination of the composition of the parties of international commercial dispute (as well as the qualification of their claims and forms of legal protection) should be determined on the basis of lex (processualis) causae, reflecting the essence of the substantive disputed relationship and the peculiarities of its qualifications from the point of view of national law. The study analyzes the features of the procedural position of specific categories of actors (individuals and legal entities, international organizations and states), as well as persons facilitating justice in international commercial disputes. The article states that the limits of foreign procedural law application to the procedural status of an alien in Russian civil proceedings is mediated by his connection with the essence of the substantive disputed relationship. Depending on the nature of such a connection, the author proposes to divide aliens as actors of international civil procedure into two groups: persons directly related to the disputed legal relationship and, therefore, subordinate lex processualis personalis (parties, third parties and their representatives) and persons, communication which with a controversial legal relationship is of an indirect nature and the procedural status of which is therefore regulated by lex fori (witnesses, experts, specialists and translators). Also, the study pays attention to the problems of jurisdictional immunity of a foreign state and conflict aspects of fraudulent joinder.

24. Rights related to patents

2018 ◽  
Author(s):  
L. Bently ◽  
B. Sherman ◽  
D. Gangjee ◽  
P. Johnson
Keyword(s):  
Patent Protection ◽  
Patent Law ◽  
Regulatory Approval ◽  
Patent Infringement ◽  
Plant Variety ◽  
System P ◽  
The Uk

This chapter is concerned with two areas of law that are related to, but not traditionally part of, patent law: the system of plant variety that gives protection to the breeders of new plant varieties, and supplementary protection certificates that extend the length of patent protection in the UK and are meant to compensate owners for time lost while awaiting regulatory approval to market their patented products. The procedure to be followed when applying for plant variety rights is also discussed, along with issues of ownership, duration, and patent infringement. The chapter concludes by considering exceptions and compulsory licences relating to the plant variety system.

scholarly journals The Surprising Virtues of Treating Trade Secrets as IP Rights

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Patent Protection ◽  
Common Law ◽  
Legal Protection ◽  
Trade Secret ◽  
Patent Law ◽  
Trade Secrets ◽  
Legal Doctrine ◽  
Paper Clip ◽  
The Law ◽  
Trade Secret Protection

Trade secret law is a puzzle. Courts and scholars have struggled for over acentury to figure out why we protect trade secrets. The puzzle is not inunderstanding what trade secret law covers; there seems to be widespreadagreement on the basic contours of the law. Nor is the problem that peopleobject to the effects of the law. Rather, the puzzle is a theoretical one:no one can seem to agree where trade secret law comes from or how to fit itinto the broader framework of legal doctrine. Courts, lawyers, scholars,and treatise writers argue over whether trade secrets are a creature ofcontract, of tort, of property, or even of criminal law. None of thesedifferent justifications have proven entirely persuasive. Worse, they havecontributed to inconsistent treatment of the basic elements of a tradesecret cause of action, and uncertainty as to the relationship betweentrade secret laws and other causes of action. Robert Bone has gone so faras to suggest that this theoretical incoherence suggests that there is noneed for trade secret law as a separate doctrine at all.In this article, I suggest that trade secrets can be justified as a form,not of traditional property, but of intellectual property (IP). Theincentive justification for encouraging new inventions is straightforward.Granting legal protection for those new inventions not only encouragestheir creation, but enables an inventor to sell her idea. And while we haveother laws that encourage inventions, notably patent law, trade secrecyoffers some significant advantages for inventors over patent protection.It seems odd, though, for the law to encourage secrets, or to encourageonly those inventions that are kept secret. I argue that, paradoxically,trade secret law is actually designed to encourage disclosure, not secrecy.Without legal protection, companies in certain industries would invest toomuch in keeping secrets. Trade secret law develops as a substitute for thephysical and contractual restrictions those companies would otherwiseimpose in an effort to prevent a competitor from acquiring theirinformation.The puzzle then becomes why the law would require secrecy as an element ofthe cause of action if its goal is to reduce secrecy. I argue that thesecrecy requirement serves a channeling function. Only the developers ofsome kinds of inventions have the option to over-invest in physical secrecyin the absence of legal protection. For products that are inherentlyself-disclosing (the wheel, say, or the paper clip), trying to keep theidea secret is a lost cause. We don't need trade secret law to encouragedisclosure of inherently self-disclosing products - inventors of suchproducts will get patent protection or nothing. But if trade secret lawprevented the use of ideas whether or not they were secret, the resultwould be less, not more, diffusion of valuable information. The secrecyrequirement therefore serves a gatekeeper function, ensuring that the lawencourages disclosure of information that would otherwise be kept secret,while channeling inventors of self-disclosing products to the patentsystem.My argument has a number of implications for trade secret policy. First,the theory works only if we treat trade secrets as an IP right, requiringproof of secrecy as an element of protection. If we give the protection tothings that are public, we defeat the purpose and give windfalls to peoplewho may not be inventors (what we might call "trade secret trolls"). Courtsthat think of trade secret law as a common law tort rather than an IP rightare apt to overlook the secrecy requirement in their zeal to reach "badactors." Second, an IP theory of trade secrets also encourages preemptionof "unjust enrichment" theories and other common-law ways courts aretempted to give private parties legal control over information in thepublic domain. Thus, an IP theory of trade secrets is in part a "negative"one: the value of trade secret law lies in part in defining the boundariesof the cause of action and preempting others that might reach too far.Finally, treating trade secrets as IP rights helps secure their place inthe pantheon of legal protection for inventions. The traditional conceptionof the tradeoff between patents and trade secrets views the disclosurefunction of the patent system as one of its great advantages over tradesecret law. And indeed the law operates in various ways to encourageinventors to choose patent over trade secret protection where both arepossible. But for certain types of inventions we may actually get moreuseful "disclosure" at less cost from trade secret than from patent law.

scholarly journals Current topics in biotechnology patent law: The written description requirement

2005 ◽  
Vol 11 (4) ◽  
Author(s):  
Benjamin A Adler
Keyword(s):  
Patent Protection ◽  
Legal Protection ◽  
Patent Law ◽  
Molecular Medicine ◽  
Court Cases ◽  
Research Institutions ◽  
Legal Decisions ◽  
Biotechnology Companies ◽  
Biotechnological Inventions ◽  
Written Description

Universities and medical research institutions are as interested in securing patent protection for their biotechnological inventions as pharmaceutical and biotechnology companies. Obtaining adequate patent protection by universities and research institutions has been hampered by the 'embryonic' nature of its inventions. This problem is particularly noticeable in the fields of biotechnology and molecular medicine. This paper focuses on recent court cases in US biotechnology patent law and analyses the effects of the legal decisions on the effort by universities and research institutions to secure meaningful legal protection for biotechnological inventions.

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