3.6 Patents

The UK Intellectual Property Office says:

A patent is an exclusive right granted by government to an inventor, for a limited period, to stop others from making, using or selling the invention without the permission of the inventor. When a patent is granted, the invention becomes the property of the inventor, which – like any other form of property or business asset – can be bought, sold, rented or hired. Patents are territorial rights; UK Patent will only give the holder rights within the United Kingdom and rights to stop others from importing the patented products into the United Kingdom.

Effectively, then, a patent is a limited monopoly with a limited life.

Patents are concerned with inventions and processes – how they work, what they do, what they are made of or how they are made. To be patentable your invention must:

  • be new

  • involve an inventive step (i.e. not obvious)

  • be capable of industrial application (i.e. be useful) and

  • not be amongst a list of things that the law says cannot be patented. This list of things that are excluded differs depending on jurisdiction. In the US, pure software patents are allowed, whereas, theoretically, they are not allowed in the UK.

An invention is theoretically not patentable in the UK if it is:

  • a discovery (but in the US, R. Schlafly (1994) obtained US Patent 5,373,560 on two large prime numbers);

  • a scientific theory or mathematical method (but in an attempt to test the system in the US someone did manage to win a patent on ‘Kirchoff's law’, a long-established scientific theory about the flow of electric current);

  • an aesthetic creation such as a literary, dramatic or artistic work, because this is covered by copyright;

  • a scheme or method for performing a mental act, playing a game or doing business;

  • the presentation of information;

  • a computer program.

Note: Business process patents have been granted in the US and Europe, however, the most widely known is Amazon's ‘one-click’ patent (US Patent No. 5,960,411, ‘Method and system for placing a purchase order via a communications network’). In 1998 the US Patent and Trademark Office issued 125 business process patents for ways of doing business on the internet. In 1999 there were 2,600 applications for ‘computer-related business method’ patents, and the numbers have been increasing year by year since then. Online ordering with a credit card can only be done in a limited number of practical ways, so granting someone a monopoly right over such a process could create a problem for commerce.

Note: Computer programme patents are also the subject of much controversy. Software patents are allowed in the US (despite a 1972 Supreme Court decision which stated that a computer program was not patentable, Gottschalk, Acting Commissioner of Patents v Benson et al., 409 U.S. 63 (1972)) and have been granted in the EU. Article 10 of the 1994 international TRIPS (Trade Related Aspects of Intellectual Property) agreement declares that computer programs ‘shall be protected as literary works under the Berne Convention’. This suggests that software is protected by copyright, not patents.

Here's another quote from the UK Intellectual Property Office:

In addition, it is not possible, in the UK, to get a patent for an invention if it is a new animal or plant variety; a method of treatment of the human or animal body by surgery or therapy; or a method of diagnosis.

In the US, patents on medical treatments are allowed. In the mid-1990s a doctor sued a fellow eye surgeon over a medical procedure he claimed to own (Pallin v Singer, March 1996). This led to a limited change in the law after the public outrage it created. Doctors can still patent surgical procedures but other doctors are not liable for infringing the patent if they use the procedure in the course of their practice.

The UK statute, however, also includes a get-out clause regarding the list of things that cannot be patented. It reads: ‘… the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent application relates to that thing as such.’

The result of this is that about 15 per cent of patent applications in the UK are for software-based applications, and the proportion of these which are granted is the same as the proportion of all patent applications granted. The situation with regard to software patents is quite fluid in Europe at the moment. The European Commission is currently considering a proposal to allow the patenting of software or, as it is called in the proposal, ‘computer implemented inventions’.

As with copyright, a patent does not mean that someone has a monopoly on an idea. What the patent holder theoretically owns is the practical application of the idea, not the idea itself. (Remember that with copyright it is the expression of the idea that the copyright holder owns.) A criticism of the current patent system is that it goes beyond the notion of a patent as a practical application of an idea and allows ownership of broad concepts, such as the composition of the CCR5 gene (a gene that is involved in HIV infection), which might be useful in some future medical treatment.

The distinction is so subtle that even the experts cannot agree. Just think of it as the difference between a patent on a new fishing rod and a patent on the idea of catching fish.

Patenting has created a lot of controversy in the areas of biotechnology, communications technologies (e.g. computers and the internet, hardware and software) and business processes. Biotechnology, chemical and drugs companies (some long established and some startups) have been filing patents on tens of thousands of genes and gene sequences without necessarily fully understanding what they do or how they might be used to treat disease (the most publicised incentive for doing the gene research). Computer, communications and retailing companies have successfully filed patents on computer programs and ways of doing business that have been criticised as not involving any inventive step. Tim O'Reilly, a prominent critic of such patents, believes ‘It defies common sense, that just because we can do it on the internet, it's a new invention’. He runs O'Reilly & Associates, a publishing and information company dealing in leading-edge computing technologies.

You do not have to remember all these details on patents.

3.7 Trademarks and licences