Guerra Sino-Indian

History

The first industrial patent was delivered in 1421 with Florence and it is the architect and engineer Filippo Brunelleschi who obtained it for an invention in the field of the handling of goods intended for transport by boat.

Later, it is with Venice that was granted a second patent, when in 1469, the city granted to an assistant Gutenberg, for the duration of its life, the privilege to print, other than very other, by a using system of the mobile characters.

Right

The exclusive right of exploitation is a “negative right”, prohibiting with thirds to use, produce, import or sell the invention covered by the patent without the assent of the holder. Thus, the patent is not a “substantive law” which would authorize the holder to use the invention, in particular when this one shows characteristics patented by thirds.

The systems of the current patents come from the revolutionary period: the first laws concerning of the patents themselves go back from 1790 for the the United States (law of the August 17th 1790 adopted in accordance with the principles posed by the constitution of 1787) and to 1791 for the France (law of the January 7th 1791 adopted by the revolutionary assembly). The preceding arbitrary systems of privileges and monopolies are abolished.

The objective of the patents is to support the technical developments and industrialists by granting rights to the inventors who reveal their results at the community. The system is supposed to promote research while making it possible to the inventors to be financed by selling their rights to the producers. Or this system encourages a contractor to innovate, by hoping that the monopoly of the patent will enable him to recover the investment authorized in Research and development.

To be patentable, an invention must answer three essential criteria.

It must be new, i.e. nothing identical forever be accessible to knowledge from the public, by some means that it is (written, oral, use,…), where that it is, when that it is.
Its design must be inventive, i.e. it cannot rise in an obvious way of the state of the art, for a person knowing the technical field concerned.
It must be suitable for an industrial application, i.e. it can be used or manufactured in an industrial way (what excludes the craft industry or works of art, for example).

A fourth clause retains that the complete description of the invention and the manner of reproducing it must be included in the patent, so that the technical contents are available during the publication of the request, and so that with the expiry of the patent this technology is indeed available in the public domain.

Moreover, certain provisions (which can differ from country to country concerned) exclude purely and simply from the patentability certain categories of inventions or intellectual creations, such as for example the scientific theories, the simple discoveries, the contrary inventions with the law and order and the moralities (for example a new type of letter bomb), the therapeutic methods (surgical procedures,…) or (in Europe for example) the software as such.

Various systems of patents

Initially, only existed the national systems of patents , with for consequence a duplication of the tasks of the Offices of the patents. Indeed, in various countries, they are often the same elements of the state of the art and the same arguments which are called upon to blame the validity of the patent applications and to impose of it the limitation during the official examination procedures. It also resulted from it from the costs increased for the depositors.

The idea of a " patent mondial" or of a mutual recognition between various countries being not very possible, it developed the system of the European patent , allowing, by the deposit and the examination of single a " patent application européen" , to obtain the delivery of a " patent européen" being able to exert its effects in a certain number of European countries (" country désignés") : the depositor can indicate any of (currently) the 32 contracting States (latest to date being Malta since March 1st, 2007). The European patent can also take effect, as from the delivery, in noncontracting States, 5, which recognize the validity of the granted patent in these States. This system, managed by the the European Patent Office presents two disadvantages however. Firstly its cost, about 3 times superior with that of a patent to the USA, and this because mainly of the obligation forced by the majority of the countries concerned (and not by Convention on the European patent) to completely translate a European patent, after its delivery, in (one) the national language of the country. Secondly, after the grant of a European patent, this one bursts in a " faisceau" national patents in the indicated countries. These national patents then carry out (classically) lives completely independent from/to each other, with the consequence in particular that in the event of counterfeit in several countries, it is generally necessary to bring parallel legal actions in each one of these countries, without any certainty however as for the uniformity of the decisions which will be returned. It thus results from it an increase in costs and legal uncertainty. With more than 160.000 deposits per annum, the system of the European patent is however a great success, in spite of its imperfections.

In order to stage the difficulties of the European system of patents, the protocol of London proposed the possibility of not translating the European patents.

Other systems of regional patents (within the meaning of area of the world) exist, in particular the Eurasian patent and two African systems (OAPI and ARIPO).

With the international level, OMPI, which counts 183 Member States, developed the system PCT ( Patent Co-operation Treaty ) , allowing through the deposit of only one " international request " , to obtain a provisional protection during about thirty month: the date of filing of request PCT is worth date of filing for all the countries indicated in this request. During this period, a preliminary research and a preliminary examination are carried out, which makes it possible the depositor to have a better idea as for the patentability of its invention. No international patent is however delivered at the conclusion of this " phase internationale" ; if the applicant always wishes to obtain a patent in some of the countries indicated in the initial request, it will have to engage the " phase nationale" in each one of those, according to the respective procedures. It is only at the conclusion of these national procedures that national patents (or possibly regional, for example a European patent) could be delivered, with possibly of the different ranges (according to the national rules).

To return from there to Europe, various attempts aimed to the creation of a community patent (initially in the form of an intergovernmental system, lately in the form of a Community system). This community patent would have the notable advantage to be unit including after its delivery, which would allow the central resolution of the litigations, with a legal certainty definitely higher than in the current system of the European patent. The negotiation (on the level of the Council) of the proposal for a Regulation of the Commission however encounters purely political objections of certain countries, in particular on the plan of the requirements of translation (in spite of the very broad approval of the potential users), and nothing makes it possible to envisage when a community patent could finally be available.

The Convention of Paris for the protection of the industrial property (March 20th, 1883) or Convention of Union of Paris (CUP) founded between the contracting States a union, and it provides that very national of a contracting State enjoys the same rights as regards industrial property as a national in any other State of Union.
Thus an inventor depositing Belgian enjoys in front of the American USPTO the same rights as Étasunien. And reciprocally in Belgium; because Belgium and the USA left with the CUP, like currently 169 États.
The CUP also envisages a one year deadline, known as priority period, to allow a depositor which carried out a first regular deposit in a Convention country to carry out deposits for the same invention in other contracting States.
These subsequent applications will be regarded as deposited the registration day of the 1re request. This 1er deposit is called the priority deposit, and its date the date of priorité.
To assert for example in France the priority of a 1er Belgian deposit, the depositor indicates the country, the n° initial deposit, as well as the date of priorité.
It is said that these later requests profit from a priority right with respect to possible other requests which could be deposited after the date of priority by other people for the same invention. One will not be able to either oppose to these later requests posterior publications at the date of priority. Indeed, one must place oneself, to appreciate the innovation and the inventive step of a later request under priority, at his date of priority.

The recent ones advanced in data processing posed the problems of the Software patent.

Distinction between Europe and the United States of America

To which belongs the patent, if two people carry out independently the same invention?

Taking into account of the anteriority of the invention in the case étasunien (system of the first inventor -- first-to-invent ), of the anteriority of sound deposit in the European case (system of the first depositor -- first-to-file ).

Existence in the USA of a grace period ( grace period ) resulting in a publication made by the inventor within a 12 months maximum delay before the deposit of an patent application (US) does not return this one invalidates. In Europe, on the contrary, under the terms of the mode of the absolute innovation, any disclosure former to the date of filing (or priority if necessary) anticipates the invention, thus depriving it of innovation and thus of patentability (according to the exact contents of the disclosure, of course).

Not particular clean with the French right

If the acquired rights by a third on a patent are not the subject of a beginning of realization during a given time, patented takes again all its rights on the invention . The legislator considered indeed that it was not in the general interest which an invention is put under the bushel by private interests. If one overlooks this point, which is most important, one cannot say that one spoke about the intellectual property.

This provision always does not make the deal of the multinationals, which prefer to keep patents at disposal for exchanges of licenses with competitors. They carry out a important Lobbying so that this exception which makes obstacle with their private interests disappears under cover from “European harmonization”.

Procedure of request for a Belgian patent

A Belgian patent is only valid in Belgium. There are two types: one period the Belgian patent of 20 years validity and that one period of 6 years validity.

An inventor can address to an agent to obtain an assistance specialized during the course of the procedure of request. It is about a specialist who represents the applicant during the procedure of request and then assists it in the administrative follow-up of the file.

The procedure covers the following stages, of the invention to the patent:

1. Checking of the patentability

Only the inventions of technical nature enter in account for a protection by patent. An invention can be a product, a manufactoring process or a technique of execution. The scientific discoveries, theories, mathematical methods and designs are not patentable. An invention must satisfy the criteria of:
- nouveauté
- character inventif
- industrial application.

2. Establishment of the request file

A request file comprises the following documents:
- a request in delivery of a brevet
- a description of the invention
- claims (or claims)
- dessins
- a summary (or abstract)

The language to be used for a Belgian patent application is, with the choice, French, Dutch or German. Instructions detailed for the drafting of the documents required appear in the royal Decree of December 2nd, 1986 modified by the royal Decree of May 25th, 1987.

3. Application

In Belgium, any person domiciled or established in Belgium can lodge a Belgian patent application with the Office of the Intellectual property. The people not domiciled or established in Belgium must do it via an agent.

That it is about a Belgian patent, European or international, a date of filing is granted the file at the time of the deposit of the patent application. For the countries which ratified the Convention of Paris of 1883, the date of filing establishes a priority in the other Member States of Convention, so that the protection of the patent can be wide later on with these countries if it is wished. The priority period 12 months east after the date of the first deposit. In practice, that wants to say that after having deposited an patent application, an applicant has 12 months to decide in which countries it wishes a protection by a patent and to carry out the corresponding formalities of deposit. The deposit of an international request (i.e. PCT) constitutes a solution very often used at this stage, which makes it possible to take date in more than 100 countries.

4. Examination of the request

During formal research, the request file of patent is the control object of complétude and form. This research can give place to a request for corrections or regularization of the request file.

During the investigation of innovation, the invention is evaluated as for its innovation and its unit.

For a Belgian patent, it is necessary to carry out a novelty search if the period supplements some 20 years protection is required. A one 6 years limited time patent can be obtained without novelty search. The report/ratio of innovation relative to a Belgian patent application is provided 9 months after the date of filing of the request.

On the basis of research report of innovation, the applicant is possibly invited to make modifications in the request file or to withdraw his patent application. A novelty search does not offer an absolute guarantee against a dispute in front of the courts.

5. Delivery of the patent

The contents of a patent remain secret between the date of filing of the request and the publication date. Eighteen months after the date of filing, the file of patent is published completely.

One 6 years duration the Belgian patent is delivered during the publication of the patent application. One 20 years duration a Belgian patent is delivered as soon as possible 18 months after the date of filing of the request, in so far as the novelty search proved to be positive.

6. Renewal of the patent

Opposition
Un granted patent can be declared null in all or partly by the court if it proves thereafter that one of the three criteria of validity was not filled. Any part can make opposition in front of the national court of the country in which the patent is in force.

Violation
La violation, or the infringement with the exclusive right of exploitation of the holder of the patent, falls within the competence of the national court of the country in which the patent is in force. It is to the holder of the patent that it falls to detect the violation and to denounce it. Any violation is sanctioned by a dead halt of the activities which undermine the patent, a fine and the obligation to completely compensate the holder for the patent.

Modifications
Tout change in the statute of a patent, like the transfer of property or the grant of a license, must be communicated with the national office of the patents. For a Belgian patent, it is necessary to inform the Office of the Intellectual property.

Renewal
Le renewal of a patent is conditioned with the annual payment of taxes. The patent remains into force as a long time as one pays the annual installments of maintenance. It is not possible “to reactivate” a patent thereafter. It is not possible to either prolong it at the end of the 20 years.

Blocking of the innovation?

The patentee can sometimes misuse his monopoly to prevent the diffusion of improvements. The inventor of the Draisienne for example could have employed a patent to prohibit the sale of bicycles by a third.

Commercially, such a step is not reasonable; the holder of the former patent has interest so that the bicycle develops in order to obtain licenses which it is in right to claim.

In addition, the substantive patent law contains in almost all the countries of the provisions which envisage the obligatory licensing to prevent these abuses. This grant of these obligatory licenses is however subjected to restrictive conditions.

The profession and incomes of the Councils in Industrial property

In France, the profession of Conseil in Industrial property is a regulated profession which is authorized for the representation of the thirds as regards patents at the INPI. The inscription on the list of CPI is conditioned by the success with an examination organized by the INPI. To be able to be registered with this examination, the diploma of the CEIPI is obligatory like three working years professional within a cabinet in pi. The CEIPI, located at Strasbourg, is the only organization to deliver a diploma making it possible to be registered with the examination of CPI of the INPI. It is necessary before to have a diploma of Engineer or Vat + 5 scientist or legal to be able to follow the schooling of the CEIPI.

Incomes of the Councils in Industrial property, just as those of the other comparable regulated professions, i.e. the notaries, the solicitors, the pharmacists, the official liquidators, are because of their monopoly of right, relatively high compared to the average revenue of the French. Indeed, according to the figures of the INPI, CPI have, in France, a turnover of 500 million euros for 500 professionals. That means that the average sales turnover is of 1 million euros per professional, with loads accounting for 50% of CA, a clear benefit of almost 500.000 euros.

The large Parisian cabinets are characterized by a structure at two levels: associates and employees. The associates can, thanks to the action leverage consisted the mass of the " councils salariés" to constitute incomes from 1 to 5 million euros by associates.

Most of the incomes is paradoxically made up of the incomes of translation of patents. Indeed, the absence of European patent, to which all the profession is opposed, implies for the inventors who want to largely protect their discoveries to deposit a patent in each country, which obliges corresponding translations. However, there too, CPI are titular monopoly of the " validation" translations: in fact CPI translate, they are professional translators, but all the texts must be " relus" by a CPI, allowing them to take expenses of " relecture" almost as high as the expenses of translation themselves. These incomes are almost without any load and are thus constitutive of an important margin. One includes/understands why the defense of the French language, often proposed, is a pretext more than one argument to protect this kind of second monopoly, that of the second reading of the translations of patents.

The paradox comes owing to the fact that the drafting itself of the patent is not very profitable, because the cabinet must take into account the whole of its expenses aministratifs and especially the wages of the engineer-patent which writes the text, knowing that the time of drafting is 10 to 20 times longer than that relative to a simple second reading. It is thus the whole of the incomes " annexes" such incomes related to the translations, on which, of course a margin is made, and especially with the " validations" who allow to compensate for the least profitability of the nobler activity of the drafting itself of the patent. These incomes " annexes" less unquestionable incomes, fact even of the monopoly do not represent any.

This structure of incomes makes it possible CPI to say that the suppression of this revenue, for example by the introduction of the community patent (in only one language for the simple description of the invention), project put in sleep since the years 1970, and competed with by the organization of the whole of the professionals of pi of Europe via the OIB, will ineluctably force them to increase their fees of drafting of the patents. This increase in the expenses would be prejudicial initially to the small individual inventors, those which are illustrated with the Lépine contest. Thus, the monopoly autojustifie by a desire to protect the small inventors. It would be to contain on a modest level the expenses relative to the small patents which will never be translated, that it would be desirable to maintain as many systems of patents, with translation and second reading, which there exists country where the invention must be protected, for that which deserves to be protected internationally.

The most unquestionable consequence of a suppression of the source of revenue that the translations and second readings constitute would be, more than disappearance of the small inventors, the reduction in the incomes of CPI and their probable reorganization with a search for greater productivity.

A reflection deserves to be carried out on the direction of the official positions of the profession of the Councils in Industrial property taking into consideration those and its strictly financial interest, in particular of the large cabinets, which are not inevitably the same ones as those of the independent councils.

Alternatives

Processes deliberately not patented

When a company estimates that its competitors have little chance to bore one of its trade secrets throughout cover of a possible patent, or that it will not be able to detect the counterfeit and to take advantage of its rights, it can choose not to deposit some, which involves a risk and an advantage:

the risk: if one of its competitors discovers the same process and takes a patent on him, it can be seen prohibiting to use its own invention (the French right and the American right differ on this point, one considering the proof of date of the discovery, and the other the date of its publication). The French right also comprises an exception known as of “former personal possession”, allowing a person who brings the proof that the pled invention of counterfeit was indeed already in its possession before the date of filing of the patent application continue to exploit it. In this case, the exploitation will be able to continue only for this person and that on the French territory.
the advantage: if there is no patent, the process is not published and the company can hope to exploit it in theory without time limit (in practice, of course, somebody will find the idea well elsewhere… a day).

This system of trade the secret, and thus not-deposit of patent , is used in some cases by chemical industry (see Coca-Cola with the the United States).

To prevent a taking out of patent

… on one of your inventions, or a process of which you would estimate unacceptable that it is patented, a weapon imparable: publish to it : the publication of a process prohibits definitively very taken later of patent on this process . That inevitably does not prevent however a third from patenting improvements or developments of the initial idea, in so far as the criteria of patentability are filled. Attention, however: the publication (disclosure) abusive of the invention of a third of which you are informed will not prevent the taking out of patent, of the parapets existing in the legislation.

Other

International classification of the patents

The international Classification of the patents (CIB) corresponds to English Obvious International Classification (IPC).

That classification is a hierarchical system dividing technologies into sections, classes, subclasses and groups. It is common for the patents, the models of utility and the certificates of utility, and is used by many countries. Its objective is to facilitate research on the million patents.

Initiated by the Arrangement of Strasbourg of 1971, its last revision (the eighth, of January 1st, 2006) takes account of the technological developments.

Bonds for the search for patents

the gate of the Worldwide organization of Intellectual property (OMPI) on the patents and the international system of the patents: http://www.wipo.int/patentscope/fr/ presents several new online services amongst other things (PCT Online File Inspection (international equivalent of epoline), downloadable databases, conversion chart IPC8,…).
the site of the National institute of the Industrial property : http://www.inpi.fr which contains many information as well as a national and international research service.
the site of espacenet which constitutes one of the largest networks of search for patents:

published by the European Patent Office (during the last 24 months): esp@cenet: Seek advanced
free access to 54 million patents coming from 72 countries: ep.espacenet.com

the Database of the Canadian patents of the OPIC makes it possible to seek, question and study free more than 1.500.000 patents.
the Epoline search engine of the OEB which makes it possible to consult all the parts of the procedure for an patent application European: epoline

See too

the Council in Industrial property
Convention on the European patent
Software patent
Software patent in Europe
Electronic Frontier Foundation (EFF), American organization defending freedom of expression on Internet.
Patentability of alive the
positive Patent
Right
Commercial law
Biopiraterie
License of patent

External bonds

France

INPI : http://www.inpi.fr/
the Network of national Technological development: http://www.rdt-france.org/
the Network of Technological development of Ile-de-France: http://www.idf-tech.net/

Cellule Patents of the CSTC the Cell Patents of the CSTC is a service of information concerning the patents intended for SME of the sector of construction.

Belgium

the Office of the Intellectual property the Office of the Intelluctuelle Property of the Federal Public service Economy, SME, Middle-classes and Energy (OPRI) regulates the protection of the intellectual property and industrial in Belgium.

Europe

the European Patent Office: Official site
Invention - Europe, the gate of the inventors, information on the intellectual property

the United States

United States Obvious and Trademark Office: official site

Classification'

List of international classifications

to find a classification starting from key words

To seek a patent

To seek a patent on the Obvious site Google Search

esp@cenet: Seek fast patent, Recherche advanced patent or Seeks by number of patent

Simple: Obvious

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