(Only do slides 9,10,11,12 include notes and examples in notes) I attached the chapterThe instructor asked that we outline the assigned chapter. Her instructions are as follows:- All slides must contain speaker notes- She stated we could copy/paste from the book- Copy/paste from other sources- Be sure to cite our references- She does not want the slides to be “Wordy”- She wants us to use bullet points with a few words- We can insert videos (2 min videos) in place of our bullet points as long as it’s relevant to the chapter content- We can use our experiences as they pertain to the contents in the chapter- Pictures are ok, but keep to a minimum- Pictures must be relevant to the contents of the chapter
week4.docx
intellictual_property_and_cyberpiracy.pptx
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Patent
When drafting the Constitution of the United States of America, the founders of the United
States provided for protection of the work of inventors and writers. Article I, Section 8 of the
Constitution provides, “The Congress shall have Power . . . To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.” Pursuant to the express authority granted in the U.S.
Constitution, Congress enacted the Federal Patent Statute of 1952 to provide for obtaining and
protecting patents.2
Federal Patent Statute
A federal statute that establishes the requirements for obtaining a patent and protects
patented inventions from infringement.
A patent is a grant by the federal government to the inventor of an invention for the exclusive
right to use, sell, or license the invention for a limited amount of time.
patent
A grant by the federal government to the inventor of an invention for the exclusive right
to use, sell, or license the invention for a limited amount of time.
Patent law is intended to provide an incentive for inventors to invent and make their inventions
public and to protect patented inventions from infringement. Federal patent law is exclusive;
there are no state patent laws. Applications for patents must be filed with the U.S. Patent and
Trademark Office (PTO) in Washington DC. The PTO grants approximately 250,000 patents
each year.
U.S. Court of Appeals for the Federal Circuit
The U.S. Court of Appeals for the Federal Circuit in Washington DC, was created in 1982. This
is a special federal appeals court that hears appeals from the Patent Trial and Appeal Board of
the U.S. Patent and Trademark Office and U.S. district courts concerning patent issues. This
court of appeals was created to promote uniformity in patent law.
U.S. Court of Appeals for the Federal Circuit
A special federal appeals court that hears appeals from the Board of Patent Appeals and
Interferences and federal court concerning patent issues.
Patent Application
To obtain a patent, a patent application must be filed with the PTO in Washington DC. The PTO
provides for the online submission of patent applications and supporting documents through its
EFS-Web system. A patent application must contain a written description of the invention.
Patent applications are complicated. Therefore, an inventor should hire a patent attorney to assist
in obtaining a patent for an invention.
The PTO must make a decision whether to grant a patent within three years from the date of
filing a patent application. For the payment of approximately $5,000, inventors can move their
patent application to the top of the list of other patent applications for review by the PTO and
receive an answer within one year. The PTO can grant priority to patent applications for
products, processes, or technologies that are important to the national economy or national
competiveness.
The patent system added the fuel of interest to the fire of genius.
Abraham Lincoln
An inventor may file a provisional application with the PTO. This provisional right gives an
inventor 3 months to prepare and file a final and complete patent application.
provisional application
An application that an inventor may file with the PTO to obtain 3 months to prepare a
final patent application.
Third parties may file a pre-issuance challenge to a pending patent application by submitting
prior art references that assert that the sought-after patent is not patentable. There is also a ninemonth period after the issuance of a patent for a third party to seek post-grant review of a patent
by submitting prior art references and other information that assert that the patent holder’s claim
is not patentable.
The Patent Trial and Appeal Board (PTAB), a section within the PTO, reviews adverse decisions
by patent examiners, reviews reexaminations, conducts post-grant reviews, and conducts other
patent challenge proceedings. By permitting pre-issuance and post-grant challenges within the
PTO, the law attempts to have disputes resolved within the PTO before reaching the litigation
stage.
Patent Number
If a patent is granted, the invention is assigned a patent number. Patent holders usually affix the
word patent or pat. and the patent number on the patented article. A patent holder may mark an
item “Patent” or “Pat” and direct a party to a freely accessible Web address that identifies the
product covered by the patent number. If a patent application is filed but a patent has not yet
been issued, the applicant usually places the words patent pending on the article.
Exhibit 8.1 shows the abstract from the patent application for the Facebook social networking
system (U.S. Patent 20070192299).
Systems and Methods for Social Mapping
Abstract
A system, method, and computer program for social mapping is provided. Data about a plurality
of social network members is received. A first member of the plurality of social network
members is allowed to identify a second member of the plurality of social network members with
whom the first member wishes to establish a relationship. The data is then sent to the second
member about the first member based on the identification. Input from the second member is
received in response to the data. The relationship between the first member and the second
member is confirmed based on the input in order to map the first member to the second member.
Exhibit 8.1 Patent Application for the
Facebook Social Networking System
Subject Matter That Can Be Patented
Most patents are utility patents ; that is, they protect the functionality of the item. The term
patent is commonly used in place of the words utility patent. Only certain subject matter can be
patented. Federal patent law recognizes categories of innovation that can be patented, including:
utility patent
A patent that protects the functionality of the invention.
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Machines
Processes
Compositions of matter
Improvements to existing machines, processes, or compositions of matter
Designs for an article of manufacture
Asexually reproduced plants
Living material invented by a person
Patent law prohibits the issuance of a patent encompassing a human organism. The law also bans
the ability to patent tax strategies. Abstractions and scientific principles cannot be patented
unless they are part of the tangible environment.
Example
Einstein’s theory of relativity (E = mc 2) cannot be patented.
For centuries, most patents involved tangible inventions and machines, such as the telephone and
the lightbulb. Next, chemical and polymer inventions were patented. Then biotechnology patents
were granted. More recently, subject matter involving the computer, Internet, and e-commerce
has been added to what can be patented.
Requirements for Obtaining a Patent
To be patented, an invention must be (1) novel, (2) useful, and (3) nonobvious. An invention
must meet all three of these requirements. If an invention is found not to meet any one of these
requirements , it cannot be patented:
requirements for obtaining a patent
To be patented, an invention must be (1) novel, (2) useful, and (3) nonobvious.
1. Novel. An invention is novel if it is new and has not been invented and used in the past.
If an invention has been used in “prior art,” it is not novel and cannot be patented.
Example
College and professional football games are often shown on television. It is often
difficult, however, for a viewer to tell how far the offensive team must go to get a first
down and keep possession of the football. Inventors invented a system whereby a yellow
line is digitally drawn across the football field at the distance that a team has to go to
obtain a first down. This yellow line qualified for a patent because it was novel.
2. Useful. An invention is useful if it has some practical purpose. If an invention has only
theoretical benefit and no useful purpose, it cannot be patented.
Example
A cardboard or heavy paper sleeve that can be placed over the outside of a paper coffee
cup so that the cup will not be too hot to hold serves a useful purpose. Many coffee shops
use these sleeves. The sleeve serves a useful purpose and therefore qualifies to be
patented.
3. Nonobvious. If an invention is nonobvious, it qualifies for a patent; if it is obvious, then it
does not qualify for a patent.
Example
An invention called “Forkchops” was found to be nonobvious and was granted a patent.
Forkchops consist of chopsticks with a spoon on one end of one of the chopsticks and a
fork on one end of the other chopstick. Thus, when eating, a user can use either the
chopstick ends or the spoon and fork ends.
Example
An inventor filed for a patent for a waffle fry, which is a fried slice of potato with a
waffle shape that is not as thick as a typical french fry but is thicker than a potato chip.
Thus, the thickness of a waffle fry is somewhere between the thickness of a french fry
and a potato chip. The court rejected a patent for the waffle fry because it was obvious
that a potato could be sliced into different sizes.
CONCEPT SUMMARY Requirements for
Obtaining a Patent
1. Novel. An invention is novel if it is new and has not been invented and used in the past.
If an invention has been used in “prior art,” it is not novel and cannot be patented.
2. Useful. An invention is useful if it has some practical purpose. If an invention has only
theoretical benefit and no useful purpose, it cannot be patented.
3. Nonobvious. If an invention is nonobvious, it qualifies for a patent; if it is obvious, then it
does not qualify for a patent.
The following U.S. Supreme Court case involves the question of what is patentable subject
matter.
CASE 8.1 U.S. SUPREME COURT CASE
Patent Association for Molecular Pathology v.
Myriad Genetics, Inc.
133 S.Ct. 2107, 2013 U.S. Lexis 4540 (2013) Supreme Court of the United States
“Laws of nature, natural phenomena, and abstract ideas are not patentable.”
—Thomas, Justice
Facts
After substantial research and expenditure of money and resources, Myriad Genetics, Inc.
(Myriad) discovered the precise location and sequence of two naturally occurring segments of
deoxyribonucleic acid (DNA) known as BRCA1 and BRCA2. Mutations in these genes can
dramatically increase a female’s risk of developing breast and ovarian cancer. The average
American woman has a 12 to 13 percent risk of developing breast cancer, but in a woman with
the genetic mutations discovered by Myriad, the risk can range between 50 and 80 percent for
breast cancer and between 20 and 50 percent for ovarian cancer. Before Myriad’s discovery of
the BRCA1 and BRCA2 genes, scientists knew that heredity played a role in establishing a
woman’s risk of developing breast and ovarian cancer, but they did not know which genes were
associated with those cancers. For women who are tested and found to have the dangerous
mutations of BRCA1 and BRCA2, medical measures can be taken to reduce the risks of breast
and ovarian cancer developing.
Myriad obtained a patent from the U.S. Patent and Trademark Office based on its discovery. The
Association for Molecular Pathology sued Myriad, seeking a declaration that Myriad’s patent
was invalid. The U.S. district court held that Myriad’s claim was invalid because it covered a
product of nature and was therefore unpatentable. The Federal Circuit Court of Appeals held that
the isolated DNA was patent eligible. The U.S. Supreme Court granted review.
Issue
Is a naturally occurring segment of DNA patent eligible?
Language of the U.S. Supreme Court
Laws of nature, natural phenomena, and abstract ideas are not patentable. It is undisputed that
Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2
genes. The location and order of the nucleotides existed in nature before Myriad found them. Nor
did Myriad create or alter the genetic structure of DNA. Instead, Myriad’s principal contribution
was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes.
Myriad did not create anything. To be sure, it found an important and useful gene, but separating
that gene from its surrounding genetic material is not an act of invention.
Decision
The U.S. Supreme Court held that a naturally occurring DNA segment is a product of nature and
not patent eligible merely because it has been isolated. The U.S. Supreme Court reversed the
decision of the Federal Circuit Court of Appeals on this issue.
Ethics Questions
1. Will the Supreme Court’s decision affect the amount of research that is conducted to find
naturally occurring disease-causing DNA sequences? Should Myriad be compensated by
the government for its research costs?
Patent Period
In 2011, Congress passed the Leahy-Smith America Invents Act (AIA). 3 The act stipulates a
first-to-file rule for determining the priority of a patent. This means that the first party to file a
patent on an invention receives the patent even though some other party was the first to invent
the invention. Previously, the United States followed the first-to-invent rule whereby the party
that first invented the invention was awarded the patent even if another party had previously filed
for and received the patent. The adoption of the first-to-file rule is a major change in U.S. patent
law.
Leahy-Smith America Invents Act (AIA)
A federal statute that significantly amended federal patent law.
Utility patents for inventions are valid for 20 years. The patent term begins to run from the date
the patent application is filed.
After the patent period runs out, the invention or design enters the public domain, which means
that anyone can produce and sell the invention without paying the prior patent holder.
WEB EXERCISE
Go to www.uspto.gov . Go to the left column titled “Patents.” Click on number 2 “Search.”
Toward the middle of the page that appears, find the term “Patent Number Search.” Click on this
term. In the open line under the term “Query,” type in the patent number 3741662. Click on the
term “Search.” Read the information about this patent.
Example
On January 12, 2016, an inventor invents a formula for a new prescription drug. On March 1,
2016, the inventor files for and is eventually granted a 20-year patent for this invention. Twenty
years after the filing of the patent application, on March 1, 2036, the patent expires. The next day
the patent enters the public domain, and anyone can use the formula to produce exactly the same
prescription drug.
In the following case, the U.S. Supreme Court had to decide whether a financial model was
patentable.
CASE 8.2 U.S. SUPREME COURT CASE
Patent Alice Corporation v. CLS Bank
International
134 S.Ct. 2347, 2014 U.S. Lexis 4303 (2014) Supreme Court of the United States
“The abstract ideas category embodies the longstanding rule than an idea itself is not
patentable.”
—Thomas, Justice
Facts
Alice Corporation owns several patents that use computers to calculate the intermediated
settlement risk that a party to an agreed-upon financial exchange will satisfy its obligation. CLS
Bank International, which operates a network that facilitates financial transactions, filed a
lawsuit against Alice Corporation seeking a declaratory judgment that Alice Corporation’s
patents are invalid. The U.S. district court held that claims were patent ineligible because they
merely use computers directed to the abstract idea of minimizing risk. The en banc U.S. court of
appeals affirmed the judgment. Alice Corporation appealed to the U.S. Supreme Court.
Issue
Are the claims patent eligible, or are they patent ineligible abstract ideas?
Language of the U.S. Supreme Court
The abstract ideas category embodies the longstanding rule than an idea itself is not patentable.
The concept of intermediated settlement is a fundamental economic practice long prevalent in
our system of commerce. Viewed as a whole, petitioner’s method claims simply recite the
concept of intermediated settlement as performed by a generic computer. Under our precedents,
that is not enough to transform an abstract idea into a patent eligible invention.
Decision
The U.S. Supreme Court held that Alice Corporation’s claims of using generic computer
implementation adds nothing of substance to the underlying abstract idea of intermediate
settlement and are therefore patent ineligible.
Ethics Questions
1. Do companies sometimes overreach in their patent claims? Why do they do this?
Patent Infringement
Patent holders own exclusive rights to use and exploit their patents. Patent infringement occurs
when someone makes unauthorized use of another’s patent. Patent infringement claims must be
brought in the U.S. district court that has jurisdiction to hear the case. Patent decisions of the
U.S. district courts can be appealed to the U.S. Court of Appeals for the Federal Circuit.
patent infringement
Unauthorized use of another’s patent. A patent holder may recover damages and other
remedies against a patent infringer.
In a suit for patent infringement, a successful plaintiff can recover (1) money damages equal to a
reasonable royalty rate on the sale of the infringed articles, (2) other damages caused by the
infringement (e.g., loss of customers), (3) an order requiring the destruction of the infringing
article, and (4) an injunction preventing the infringer from such action in the future. The court
has the discretion to award up to treble damages if the infringement was intentional. It costs
between several hundred thousand dollars to several million dollars to bring an infringement case
to trial.
Design Patent
In addition to utility patents, a party can obtain a design patent. A design patent is a patent that
may be obtained for the ornamental nonfunctional design of an item. A design patent is valid for
14 years.
design patent
A patent that may be obtained for the ornamental nonfunctional design of an item.
Examples
The design of a chair, a door knob, a perfume bottle, and the outside of a computer are examples
of design patents.
Statue of Liberty
The Statue of Liberty is one of the most famous design patents. It was patented in the United
States by Auguste Bartholdi on February 18, 1879. Patent No. 11,023.
Copyright
Article I, Section 8, of the Constitution of the United States of America authorizes Congress to
enact statutes to protect the works of writers for limited times.
Pursuant to this authority, Congress has enacted copyright statutes that establish the requirement
for obtaining a copyright. Copyright is a legal right that gives the author of qualifying subject
matter and who meets other requirements established by copyright law the exclusive right to
publish, produce, sell, license, and distribute the work.
copyright
A legal right that gives the author of qualifying subject matter, who meets other
requirements established by copyright law, the exclusive right to publish, produce, sell,
license, and distribute the work.
The Copyright Revision Act of 1976 currently governs copyright law.4 The act establishes the
requirements for obtaining a copyright and protects copyrighted works from infringement.
Federal copyright law is exclusive; there are no state copyright laws. Federal copyright law
protects the work of authors and other creative persons from the unauthorized use of their
copyrighted materials and provides a financial incentive for authors to write, thereby increasing
the number of creative works available in society. Copyrights can be sold or licensed to others,
whose rights are then protected by copyright law.
Copyright Revision Act
A federal statute that (1) establishes the requirements for obtaining a copyright and (2)
protects copyrighted works from infringement.
Tangible Writing
Only tangible writings—writings that can be physically seen—are subject to copyright
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