A version of this essay was published in the Encyclopedia of World Trade published by ME Sharpe Publishers, Armonk, New York.
Patent © Anup Mukherjee
The word ‘Patent’ is derived from the Latin word patere, which means to be open or public. Patent is a form of intellectual property right (IPR). The intellectual property can be broadly classified into two categories- Copyright and Industrial Property. The industrial property can be further classified into six categories: 1) Patent, 2) Geographical Indications, 3) Industrial designs, 4) Trademarks, 5) Layout designs of Integrated Circuits, and 6) Trade secrets. These are now governed under the TRIPS Agreement of WTO.
Patent is kind of government grant to monopoly use of an invention for a limited amount of time. Patent is a method by which the innovator or inventor can protect his innovation or invention and have rights to exclude others from using it. Patent is useful because by protecting invention and creating rights of the originator on his invention, it gives impetus to further research and technological development.
Patents have a long history. In Britain it can be traced to 15th century, when special privileges started to be given to manufacturers and traders by the Crown. Henry VI granted the earliest known English patent to John of Utynam in 1449 for a method of making stained glass that was required for the windows of Eton College. This granted John a twenty-year monopoly on his invention. Such granting of patents expanded under the Tudors. Between 1561-90, Elizabeth I granted 50 patents. These patents covered various items ranging from soap, saltpetre, alum, leather, salt, glass, knives, sailcloth, sulphur, starch, iron and paper. An example of refusal to grant patent related to the case in 1596 of John Harrington’s design for a water closet.
In USA, the first patent was granted for a method for making potash. This patent was issued in 1790. Before 1793, Secretary of State, Secretary of War, and Attorney General examined the patents applications.
The importance of patents can be understood in the context of development of Telegraph. Patent was used for dominating the market and keeping off competition. During 1870s, there was great competition between the financiers Cornelius Vanderbilt and Jay Gould to get control of Thomas Edison’s telegraph patents. Patent was indeed a financial asset for business. In case of Radio, RCA purchased the patents of Marconi. However during the depression years of 1930s, Patent system received a setback as it was felt that patents led to monopolisation.
Patent is a legal document. Patents are protection accorded by national governments to an inventor. This patent is valid for a fixed number of years. During this period, the patent holder has an exclusive right to use his product. The patent holder has a right to exclude others from making, using, offering for sale, or selling the invention or importing the invention into the country. Having a patent means the ‘right to exclude’. In return for this right, the patent holder discloses details of his invention to the people by filing the details with the Patent Office. Usually in most of the countries the patent is given for a period of twenty years from the date of filing. After the expiry of the period, any third party can use the patent for free. Also, the patent granted is usually valid within the territories of a country. Thus Patent has two limitations of time period and of territorial applicability.
The issue of international protection emerged during the International Exhibition on Inventions in Vienna in 1873. The inventors were afraid that their ideas would be stolen for commercial purposes in foreign countries. This finally led to the outcome of Paris Convention for the Protection of Industrial Property in 1883. This treaty that was enforced in 1884 helped the patents of inventions get protected in foreign countries. To this was added the Berne Convention (1886) on Copyrights, both of which were administered by an international bureau, BIRPI. This was the beginning that in 1967 led to formation of WIPO. WIPO became a specialised agency of UNO in 1974 to administer intellectual property issues of its member states. WIPO also helped to put in putting in place treaty arrangements for single international patent application through agreements like the Patent Cooperation Treaty etc. Provisions of the WTO under the TRIPS agreement gives an added benefit that patents filed in one country would be valid in all signatory countries to the TRIPS agreement. This also means that the signatory countries for any issue or dispute would be under the jurisdiction of the WTO dispute settlement mechanism. Both WIPO and TRIPs now have cooperation arrangement between them.
Patents have different dimensions. There are related concepts like the design patent, plant patent and utility patent. Design patents are granted for inventions that are new and original, and for ornamental design for an article of manufacture. This is particularly useful in the area of industrial products and gives it specific connotation. Plant patent are granted for invention or discovery or asexually reproducing any distinct and new variety of plant. A utility patent is granted for inventions and discoveries that are new and useful, and are non-obvious processes, machine, article of manufacture, or composition of matter, or any new and useful improvement.
For the future there are certain important issues that concern the area of Patents. In area of patented life saving drugs, particularly in cases like AIDS, these are too costly for the poor people of the developing countries. The problem becomes acute when under the product patent system it is not possible to replicate these drugs through other processes. Thus it becomes an issue of how to balance the public health requirements with the interests of the patent holder.
Much of the inventions are being done by the small and medium sized enterprises. Many of these lack the awareness and resources to be able to use Patent system, as Patents mean an additional costs for most of the small firms. In such case, they can lose out in competition to bigger firms who have power to commercialise their patented inventions.
Another important area is that of patenting of genetic resources and traditional knowledge by the bigger companies. This is effectively encroaching and monopolisation of the rights of the indigenous people who have developed this knowledge over centuries of community existence.
References:
Documents of WIPO, USTPO, UK Patent Office & WTO relating to TRIPS