ADMS 2610 Lecture Notes - Lecture 1: Patent Office, Hay Rake, Compulsory License
7 Feb 2018
School
Department
Course
Professor
Copyright: Robert Levine
SOME NOTES ON INTELLECTUAL PROPERTY
NOTE: what follows is in addition to the content of your text.
PATENTS:
I do not intend to get into a lengthy discussion of what can be patented under the Patent
Act. For this reason, what follows about Patents will suffice for the purpose of this
course.
The Patent Act, Canada, R.S.C. 1985, c. P-4, applies to inventions and section 2 provides
that “an invention means any new and useful art, process, machine, manufacture or
composition of matter, or any new and useful improvement in any art, process, machine,
manufacture or composition of matter.” Thus, the act applies to
1. New and Useful Arts, Processes or methods: (e.g. a system for applying a
selective herbicide to improve crop yield, or a method of cleaning
carpets).
2. New and Useful Machines (e.g. computer hardware, a hay rake, or a
vacuum cleaner).
3. New and Useful Products or compositions of matter: (e.g.
pharmaceuticals, chemical compounds, or micro-organisms, and
4. Any new and useful improvement to 1, 2 or 3.
To invent, means to produce something that is new (in terms of time) and different and
that did not exist before. This means that there are times when an addition to an existing
patented invention may itself be considered a new invention and hence patentable.
New:
The requirement that a patent be new, means that it must be new in relation to
what was previously known or used. However, the invention need not be absolutely new,
rather it can be an improvement to something that was previously patented.
New also means that, in general, the idea must not be disclosed to the public (it
must be kept secret) within a year before the application to patent it. Further, the
invention must neither be described nor disclosed by its inventor (often referred to as
being published) more than a year before the date of submitting the application for
patent. If it is disclosed/described by its inventor during this period of time, it is deemed
to be part of the public domain and cannot be patented. Finally, new means that the
invention must not be obvious, which is another way of saying that a patent will not be
granted for any type of improvement to an existing invention that would have been
obvious (or apparent) to someone with similar knowledge and skill.
find more resources at oneclass.com
find more resources at oneclass.com
Copyright: Robert Levine
2
Useful means that
(a) the invention must be functional – it must do what it claims to do or says it
will to do; and
(b) the invention must improve or help to improve society by making
production or some aspect of it more efficient or our lives more enjoyable;
Note that a patent protects an idea, not the expression (or putting into effect) of
the idea. If, however, the idea is too vague it cannot be patented, but if it is not too vague
and has not been patented, anyone else can patent that idea. In fact, there have been cases
where two inventors have come up with the same idea at the same time, but one gets to
the patent office first (applies for the patent first) and is granted the patent, while the
other inventor loses out.
Protection Afforded:
Where a patent application for an invention is accepted, the patent lasts for 20 years from
the date of the application.
Who is an Inventor:
Usually, the inventor is either the individual who comes up with the invention, in which
case the individual becomes the patent holder. In fact, even where the inventor is an
employee, subject only to the contract between the employee/inventor and the employer,
usually it is the employee who is the “inventor” and thus the person who can apply for
the patent so as to become the patent holder/owner. It should be noted that,
notwithstanding that an employee may take materials and supplies of the employer home
and use them to create the invention, if the contract of employment is silent as to
ownership, the employee will be the person entitled to the patent, and thus, the patent
holder/owner.
Compulsory Licences.
Occasionally, when a patent is obtained, the patent holder refuses to permit the
use of the patented idea, process, etc…, by anyone else, such as another manufacturer. In
such cases, the party who wishes to make use of the patented idea, process, etc… can
apply to the government which can issue a compulsory license, permitting that party to
use the patented idea, product, etc…. When this occurs it is normal for the user to pay
some form of fee to the patent holder, generally in the form of a royalty.
Infringement of Patents:
This occurs when a legal entity (individual or corporation) uses/produces the
patent of another without the patent holder’s consent. The remedy is an action for
damages for patent infringement under the Act in which an interim and permanent
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Note: what follows is in addition to the content of your text. I do not intend to get into a lengthy discussion of what can be patented under the patent. For this reason, what follows about patents will suffice for the purpose of this course. New and useful arts, processes or methods: (e. g. a system for applying a selective herbicide to improve crop yield, or a method of cleaning carpets). New and useful machines (e. g. computer hardware, a hay rake, or a vacuum cleaner). New and useful products or compositions of matter: (e. g. pharmaceuticals, chemical compounds, or micro-organisms, and. Any new and useful improvement to 1, 2 or 3. The requirement that a patent be new, means that it must be new in relation to. To invent, means to produce something that is new (in terms of time) and different and that did not exist before.
