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79 Cards in this Set
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What is needed for an invention to be patentable under section 1 pa 77 |
(a)the invention is new;
(b)it involves an inventive step;
(c)it is capable of industrial application;
(d)the grant of a patent for it is not excluded by subsections (2) and (3) below; |
New IS industrial, not excluded |
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What is excluded from patentabilty under s1 (2) pa77 |
(a) a discovery, scientific theory or mathematical method;
(b) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever;
(c) a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer;
(d) the presentation of information;
" as such." |
DSM LDMA SRM, GBM CP InFO! as such |
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What comprises the state of the art for novelty under s2 (2) pa77 |
(3) matter contained in an application for another patent
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(2) what, when, to whom, where, how? (3) earlier F/ Later P + matter requirements
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(1x) Under the European Patent Convention, what constitutes the “state of the art”? |
Art 53 EPC (2)
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What, to whom, how, when (f not p). + EP earlier/ later |
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(5x) Explain how “absolute novelty” is different from “relative novelty” and “local novelty”? Your answer should include examples of countries adopting each of the standards |
The state of the art comprises:
absolute novelty: all matter made available to the public by publication or by use both in the jurisdiction and anywhere else. E.g. UK.
Relative novelty: all matter made available to the public by publication both in the jurisdiction and anywhere else, or by use in the jurisdiction E.g. China & US (old law).
local novelty criterion comprises all matter made available to the public by publication or use in the jurisdiction E.g. New Zealand (old law). |
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Explain the test for obviousness first used in T1/80 Carbonless copier paper/BAYER [1981] OJ EPO 206. |
1. Identify the closest prior art. The closest prior art is that which requires the minimum number of structural or functional modifications to arrive at the claimed invention. 2. Determine the objective technical problem by: a. identifying the distinguishing feature between the closest prior art and the claimed inventionb. determining the technical effect of the distinguishing feature. formulating the objective technical problem to be solved 3. Asking whether it would be obvious to a person skilled in the art to arrive at the claimed solution when faced with the objective technical problem or whether it would require any degree of inventiveness. |
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What are the four steps in the Pozzoli/Windsurfing approach? |
In Pozzoli: 1. (a) Identify the notional person skilled in the art (b) Impart to him the common general knowledge of the art
2. Identify the inventive concept of the claim (or else construe it)
3. Identify what the differences are between the state of the art and the inventive concept
4. Viewed without any knowledge of the invention, do the differences constitute steps which would have been obvious or do they involve any degree of inventiveness. |
S.P CGK Construe concept Differences Steps obvious? (Without knowledge) |
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What is the term of a patent? When does it begin? |
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Begins? Term? Term begins when? As long as? Extending how?
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What is a divisional application and when might it be filed? |
• Application divided out from earlier patent application
• Same priority date as the parent application
• Sometimes used for lack of unity of invention
• Entitlement proceedings may also require a divisional in order to separate matter devised by different inventors
• Divisional can be filed at any time before grant of the patent or by 3m prior to compliance date (UK), whichever comes earlier. |
Relationship to parent? Two situations where useful. File before patent granted/ application ends (2 ways). 3m b4 R30. |
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(7x) In what circumstances is an employee entitled to an invention? |
S39 PA77 (1) … an invention made by an employee belongs to his employer if—
• it was made in the course of the normal duties of the employee or in the course of duties specifically assigned to him, and an invention might reasonably be expected to result from the carrying out of his duties; or
• the invention was made in the course of the duties of the employee and, at the time of making the invention, because of the nature of his duties and the particular responsibilities arising from the nature of his duties he had a special obligation to further the interests of the employer’s undertaking.
(2) Any other invention made by an employee belongs to the employee. |
Normal/ sp.assigned+reasonably expected
OR
Nature + Particular responsibilities = special responsibility
Otherwise... |
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What restrictions apply to co-owners of patents which do not apply to sole owners? |
S36 PA77 (2) Co-owners cannot License, Assign, Mortgage, the patent without the other owner’s consent.
S10 Co-owners must agree before Amending or Revoking patent
Co-owners can bring proceedings for infringement against a third party (S66) or raise a dispute to the courts (S55), but must make the other owners party to the proceedings. |
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In what circumstances is a patent infringed where the invention is a process? |
S60 (b) Person uses the process or offers it for use in the UK while the patent is in force and without the consent of the proprietor when he knows, or it is obvious to a reasonable person, that its use would be an infringement S60 (c) Person uses imports offers to dispose of disposes of keeps whether for disposal or otherwise. Products of a process (obtained directly) that would infringe S60 (2) in the UK while the patent is in force |
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In what circumstances is a patent infringed where the invention is a product? |
S60 (1) Person:imports;makes;offers to dispose of;keeps it whether for disposal or otherwise;uses; or disposes ofproduct in the UK at the time the patent is in force without the owner's consent. + S60 (2) indirect infringement:Person (2) supplies or offers an essential element of the invention, for putting the invention into effect . when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect. |
I'M OK to Use and Dispose, right? Not here. Not at this time. Not without asking. |
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What can be done if an application is withdrawn due to a clerical error?
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Rule 105
(1) Ted can write to the comptroller to request correction of the error in the email, clearly specifying the corrections to be made.
(2) The comptroller may request a copy of the email, showing the correction made.
S. 117(1) If your application was withdrawn due to an error in a form or document associated with the application, you can make a request to the comptroller to ‘correct the withdrawal’ (i.e. resuscitate it). (2) Third parties can oppose the requested correction(3) If the application has been published and the withdrawal request was also published, then the comptroller will also publish the request for withdrawal.
The comptroller then decides whether to allow the request |
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The renewal date for a patent is X. What can a patent proprietor do when heor she has failed to pay a renewal fee by:(i) Date within same month as X;(ii) Date within 6 months of X;(iii) Date later than 6 months but earlier than 19 months from X;(iv) Date later than 19 months from X. |
(i) Patent is not considered to have lapsed as date falls within payment period prescribed by Rule 37(2)(b) and the payment of the renewal fee can be made.
(ii) Patent is considered lapsed. BUT date falls within 6m grace period specified by S25(4). A payment of the renewal fee can be made along with an additional fee which increases with each further month missed.
(iii) Patent is considered to have lapsed. BUT if the applicant can provide evidence that the payment was missed unintentionally (on the part of the proprietor) during the payment period AND the grace period, then patent can be restored (s28).
(iv) Rule 40 states that the period in which steps in (iii) possible ends 13m after end of grace period. Therefore patent cannot be restored. |
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Identify three languages of publication under the Patent Cooperation Treaty which are NOT also official languages of the European Patent Office. |
Languages of EPO: English, French, German
Languages of publication for PCT: Chinese, German, Japanese, Korean, French, Russian, English, Arabic, Korean, Spanish |
Chinjap Gerport + FREAKS |
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What checks are performed by the receiving Office under the Patent Cooperation Treaty? |
• an indication that it is intended as an international application • designation of at least one Contracting State • name of the applicant • part which on the face of it appears to be a description • part which on the face of it appears to be claims |
A little rhyme: Indication Name. Description Designation Claim. |
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When will an international application for a patent enter the regional phase at the European Patent Office? And when would translations be required? |
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31m Languages? Further processing |
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When will an international application for a patent enter the national phase in the United Kingdom? And when would translations be required? |
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31 months is the date Plus 2 for a fee Don't forget to translate More time (if late unintentionally) |
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When does an international application enter into the national phase: (a) in the United Kingdom; and (b) in Luxembourg. |
• UK at 31 months, unless the applicant requests it earlier.• 2 month extension available upon payment of fee• Further extensions subject to “unintentional” test • Luxembourg at 20m for CH1, 30m for CHII |
31 months is the usual date PLT gives 2 more for a fee Don't forget to translate Plus extra time (if not intentional or ADC) |
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What occurs during the “international phase” of an application under the Patent Cooperation Treaty? |
• CHI - International search carried out • Written opinion on patentability issued with search results • International application published 18m from priority or earlier if applicant requests • Supplementary international search can be requested within 19m of priority • Third party observations are possible, which are filed centrally. The applicant can respond - CHII - international preliminary examination is carried out. - patentability to international standard assessment is carried out.
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CHI and CHII |
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What happens during the “national phase” of an international application? |
National phase • Application filed at national offices • Fees are paid • Translations filed • Search/ supplementary search and examination at national offices |
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What types of search are available under the Patent Cooperation Treaty? |
• International search conducted by an International Searching Authority:
o Only looks for disclosure by written disclosure;
o No search in relation to use.
o Does not have to search within excluded matter (e.g. Art 52(2)).
• Supplementary search can be requested within 19m from priority |
Written, not s1(2) not use +supplementary b4 19m too |
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What are the four basic criteria for a plant variety to be protected? |
Plant variety has to be• Distinct• Uniform• New• Stable |
DUNS |
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What are the four steps of the Aerotel/Macrossan [2006] EWCA Civ 1371 test relating to the patentability of computer programs? |
(i) Properly construe the claim
(ii) Identify the actual contribution
(iii) Does contribution fall solely within excluded subject matter?
(iv) Check if the contribution is technical in nature |
Properly... actual... Solely...? Technical...? |
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What is required to establish a date of filing under the Patents Act 1977? |
S.15 PA77: documents filed must: (a) contain indication that a UK patent is sought;
(b) identify the applicant(s) or enable contact with them (i.e. name and address not requirednecessarily); (c) contain either (i)something that appears to be a description of the invention; OR (ii) areference to an earlier application including (R.17):
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A patent application was filed in [ParisConvention member country]on [Date X],can priority be claimedfrom the [Paris Convention member country] patent application in an application filed at the UKIPO on [atleast three of the following options then appear]: (i) Date Y (Within 12 months); (ii) Date Z (Monday, one or two days after 12m anniversary ofpriority date); (iii) Date P (Within 14 m (or Monday, one or two daysafter 14m)); (iv) Date Q (>14months).
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i) Article4 C of the Paris Convention provides12 months for claiming priority in any other country of the union. ii) The patent office [in question] is not open for the filing of applications claiming priority. Article4 C also provides that, in these circumstances, the period shall be extended to the next working day.
iii) PatentLaw Treaty period, which provides an extra2 months from the end of the Paris convention period. To be eligible “all due care” or “unintentional” test isapplied depending on patent office.
iv) This is outside the Paris Conventionperiod and the PLT extension period. The applicant cannot claim priority. |
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What is the period of priority for a patent application under the Paris Convention and how does the Patent Law Treaty affect that period? |
Article 4 C of the Paris Convention provides 12 months for claiming priority in any other country of the union. Patent Law Treaty period, which provides an extra 2 months from the end of the Paris convention period. To be eligible “all due care” or “unintentional” test isapplied depending on patent office. |
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What is needed to establish a priority claim? |
• Applicant must make a declaration, either at filing or within 16 months of earlier filing; • Late declarations (in 2 month “extra period” provided by PLT) must be made at time of filing alongwith evidence of ‘unintentional’ or ‘ADC’; • Must be supported bycertified copy of original application within 16 months of priority date. |
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What haschanged under EPC 2000 in relation to second medical use claims? OR What is a “Swiss claim”? And why is nolonger as relevant as it once was? |
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(8x) A UK patent attorney, is asked to file a patent application at the [non-UK] Patent Office from a [non UK resident] client. What restrictions apply if [one orboth of the following types of subject matter appear]: (i) [somethinginnocuous]; (ii) [something prohibited under section 22PA1977] |
(i) This can depend on nationality of applicants: a. Anyone can apply at EPO but must appoint a representative for all proceedings if not resident or principal place of business in a contracting state. b. At UK IPO anyone can file
(ii) S23 PA77(1A) if the application contains (a) information which relates to military technology or may be prejudicial to national security; or (b) might be prejudicial to the safety of the public no persons resident in UK shall, , file or cause to be filed a patent application outside the UK without written authority granted by the comptroller unless:
(1) (a) application filed at UKIPO 6 weeks before filing abroad AND (b) either no directions have been given under section 22 above in relation to the application in the United Kingdom OR all such directions have been revoked.
(2) Not applicable to non-UK residents filing outside of the UK.
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List the THREE conditions under UK law where a public disclosure will not defeat the novelty of an invention |
s.2 (4) (a) The invention has been made public by a breach of confidence by someone whom the inventor had entrusted with information about the invention and the application was filed within 6m of the invention being made public
(b) made public by a breach ofconfidence by someone who had obtained it from the ‘someone’ above and theapplication was filed within 6 m of the invention being made public
(C) The invention was shown at aninternational exhibition less than 6 months prior to the filing date of the application and this was declared to UK IPO upon filing + written evidence submitted. |
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What is the 'libraryprinciple'? |
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When is commercial successrelevant to inventive step (UK)? |
· In general commercial success does not indicate inventiveness
Samuel Parkes v Cocker Bros If solution has been widely used, and used in preference to alternative devices, it is inventive
Pfizer's patent Commercial success comes into its own as a secondary indication of inventiveness where long felt need occurs. |
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When is commercial success relevant to inventive step (EPO)? |
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What occurs during formal examination and whathappens during substantive examination? |
Formal examination Formalities examiner ensures that the formal requirements met: · In the right form; · Statement of inventorship; · Claims of priority checked and substantiated. Search · Search for prior art (?)· Unity objections Substantive examination · Examination of patentability (novelty/inventivestep) · Exchange of observation and amendments · Until Examiner rejects/accepts |
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When does publicationoccur? |
S.16 PA77
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(6x) Whatis the consequence/ significance of publication in relation to infringement/the rights of the patent holder? |
S.69 PA77 (1) Applicant hasthe same rights to bring infringement proceedings for any act occurring betweenpublication and grant that would infringe the (eventual) patent. (2) …providing: (a)proceedings are begun after grant (b)act infringes patent as (originally) published and as granted, |
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What is the consequence/significance of publication in relation to novelty? |
Published application becomes relevant for the assessmentof novelty for other patent applications both under s2(2) and s2(3). |
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If a withdrawn request isreceived too late before publication to prevent publication, what are theconsequences for novelty? |
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When is an application publishedunder the EPC? And when will the rights conferred by publication come intobeing in the United Kingdom? |
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When will the rights in apatent be exhausted within the EU? |
Doctrine of exhaustion can not use patent to prevent the further disposal of an article that hasbeen placed on the market in the EEA with the patentee’s consent Doctrine of impliedlicence sale of a product implies a licence to keep, use and resell theproduct |
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When will third party rights exist under a patent (identify each of the cases)? |
If a person : (a) began in good faith an otherwise infringing act; or (b) made in good faith serious and effective preparations to do so During any of the following periods:
...then he has the right to continue to do so (but cannot license this right): NB: this does not extend to granting a license to do the act. |
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To whatextent (if any) can the grant of a patent be opposed before and after grant under the European Patent Convention? |
• TP observationspossible during examination (after publication but before grant) • Opposition proceedings can be brought any time within 9 months after grant • TP observations possibleduring opposition proceedings |
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To what extent (if any) can the grant of a patent be opposed before and after grant under the Patents Act 1977? |
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What is the time period foropposing the grant of a European patent and what are the grounds of opposition? |
Time period: Notice of opposition in writing received at EPO within 9 monthsfrom publication of grant in the European Patent Bulletin Grounds:
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When, and on what grounds,can the validity of a European patent (UK) be challenged? |
S72 UK PA77 Grounds for revocation:
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On what grounds can a European patent be opposed? |
Art 100 EPC Opposition grounds: • Patentability • Sufficiency • Added matter |
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In what circumstances can a reference be made to the Enlarged Board of Appeal of the European Patent Office? |
The Enlarged Board of Appeal, is in charge of deciding on points of law it has the following three functions. 1: to take decisions when case law of the Boards of Appeal becomes inconsistent or when an important point of law arises upon a referral from a Board of Appeal. 2: to issue an opinion upon a referral from the President of the EPC 3. to examine petitions for review of decisions of the boards of Appeal (since implementation of EPC 2000). |
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What is meant by “a licence of right?” And why might a patent proprietor grant such a right? |
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What is the difference between an exclusive licence, a sole licence and a non-exclusive patent licence? |
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When can a compulsory licence be granted in relation to a patent owned by a WTO Proprietor under section 48A of the Patents Act 1977? |
s48(1)(a) PA 1997 At any time after 3 years from grant, any person may apply to the comptroller on one or more of the relevant grounds for a (compulsory) licence.
s48A(1) For WTO Proprietors relevant grounds-
(a) invention is a product, + UKdemand for that product is not being met on reasonable terms;
(b) that by refusal of patent proprietor to grant a licence (i) technical advance of considerable economic significance is hindered in UK (ii) the establishment or development of commercial or industrial activities in the UK is unfairly prejudiced; |
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What consequences, if any,may result from failing to register the assignment of a patent? |
Assignment still legal BUT
Register operates system ofpriority - s33. you lose your rights if
Unless it was registered within 6months of the date of the transaction or as soon as practicable thereafter:
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What formalities are required to assign(a) a European patent (UK);(b) a European patent application? |
A European patent (UK);
European patent
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What formalities are needed to mortgage a European patent (UK) under English law? |
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What is meant by “services of the Crown” for the purposes of Crown use? |
s.56(2) PA77
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A giant crown Ebenezer Scrooge is inside holding swan includes Guns Drugs Uranium
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What are Supplementary Protection Certificates? What are their limitations? |
SPCs compensate owners who have not been able to market their patented product because of delays in obtained regulatory approval.
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What is indirect infringement? |
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What is ‘innocent infringement’ under section 62 of the Patents Act 1977? |
In proceedings for infringement:
against a defendant who proves at the date of theinfringement he was not aware, and had no reasonable grounds for supposing,that the patent existed; NB: not sufficient for the word patent/ patentedon product (unless it also has patent number) |
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What remedies can the court, give for infringement of a patent? |
S.61(1) a)Injunction; b) Deliverup / destruction of any goods; c)Damages; d)Account of profits e)Declaration that the patent is valid and infringed. S.61(2) but thecourt will not award both c) and d); |
ID, DAD |
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Whatremedies can the comptroller, give for infringement of apatent? |
S.61(3)
Needs consent of bothparties for Comptroller to hear case |
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What is “secret prior use”of a patented invention under section 64 PA77? |
s64 (1) Where apatent is granted for an invention, a person who in the UK before the priority date of the invention— (a) does in good faith an act which would constitute an infringement of the patent if it were in force, or (b) makes in good faith effective and serious preparations to do such an act, he has the right to continue to do the act or, as the case may be, to do the act,
NB this right does not extend to granting a licence to another person to do the act. |
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What defences may a person rely upon if that person is accused of improperly threatening someone with a claim of patent infringement? |
s70(2A) - If threatener can show acts are actually infringing (a)+ alleged infringer can't show patent is invalid in a relevant respect (b) OR threatener did not know and had no reason to suspect that the patent was invalid
s70(6) - threatenor proves that he used his best endeavours, without success, to discover the identity of the person who- (a) made or imported the product, where the alleged infringement is the OKUD of the product. (b) used the process, where alleged infringement consists of offering a process for use, (c) used the process to produce the product in question, where the alleged infringement is the IOKUD of the product produced by process.
and that threatenor notified alleged infringer accordingly,before or at the time of making the threats, identifying the endeavours used.
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(if you really tried to find the manufacturer/importer but failed, then you can go after the retailer for his infringing acts without being sued for making a groundless threat)
think about s60 a, b and c |
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When can proceedings be brought for a groundless threat of patent infringement? |
s70(1) - claimant can be merely aggrieved by a groundless threat - he doesn’t have to be the one threatened
s70(4) - a groundless threat action may not be brought for (a) a threat to bring proceedings for an infringement alleged to consist of making or importing a product or of using a process. (b) a threat, made to a person who has made or imported a product for disposal or used a process, to bring proceedings for an infringement alleged to consist of doing anything else in relation to that product or process (in summary, manufacturers can’t be sued for threatening other manufacturers)
s70(5) - the following are not threats (a) providing factual information about the patent (b) making enquiries for the sole purpose of discovering whether or by whom the patent has been infringed or (c) making an assertion about the patent for the purpose of any enquiries so made. |
1. Merely aggrieved by threats - Can sue 2. Threats made to importers or manufacturers - can't sue 3. Providing facts, making enquiries, making assertions - can't sue. |
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When can a patent application be reinstated? |
S20A (1) reinstatement possible if application for a patent is refused, or treated as having been withdrawn as a direct consequence of a failure of applicant to meetdeadline during prosecution. (2) Comptrollerreinstates only if - (a) applicant requests it; (b) request complies with the relevant requirements of rules; and (c) applicant proves unintentional. Time limit is earlier of:
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Whatare the implications of the Patent Law Treaty in relation to the priorityperiod? |
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What does Article 4 of theBiotech Directive (98/44) deem to be unpatentable? |
(1) (a) plant and animal varieties; (b) biological processes for the production of plants or animals
(2.) Inventions which concern plants or animals SHALL be patentable IF the technical feasibility of the invention is NOT CONFINED TO A PARTICULAR plant or animal variety.
(3.) Paragraph 1(b) shall be without prejudice to the patentability of inventions which concern a MICROBIOLOGICAL OR OTHER TECHNICAL PROCESS or a PRODUCT OBTAINED BY MEANS of such a process. |
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When might a biotechnologyinvention be contrary to ordre public under Directive 98/44/EC (Patents Act1977, Sch A2) |
1. Inventions shall be considered UNpatentable wheretheir commercial exploitation would be CONTRARY TO ORDRE PUBLIC (public policy)or MORALITY; however,exploitation shall NOT be deemed to be so contrary MERELY BECAUSE IT IS PROHIBITED BY LAW OR REGULATION.
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What defences to patent infringement were introduced in the United Kingdom to give effect to the Biotech Directive (98/44/EC)? |
S60 (5) UKPA1977
(g)
(h)
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Once you've sold seed to farmer, can't sue him for using his own 2nd generation seeds for sewing on his own land.
Same for use of resulting animals, if he was sold 'seed' or breeding stock. |
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What is the “trinity (aka triple identity test)” applied for determining equivalents for the purposes of US claimconstruction. |
whether the difference between the feature in the accused device and the limitation literally recited in the patent claim is "insubstantial." difference may be found to be"insubstantial" if the feature in the accused device: 1. Performs substantially the same function 2. In substantially the same way 3. To yield substantially the same result as the limitation literally recited in the patent claim.
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What is meant by a “grace period” (or the on sale bar) in US patent law? Is there an equivalent provision in Europe? |
It provides that an invention cannot be patented if there has been an impermissible sale.
An impermissible sale has occurred if there was:
The on-sale bar is triggered if the invention is both 1. the subject of a commercial offer for sale not primarily for experimental purposes and 2. ready for patenting. i.e. either that the invention was reduced to practice or that enabling disclosures existed.
No equivalent provision in Europe |
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Set out the significant differences between a Germanpatent and a German utility model. |
Patentable subject-matter A utility model only protects technical products,apparatus and substances NOT methods or processes.
Novelty German patents = absolute novelty. (harmonised with EPC) German utility models = relative novelty. Following does not form part of the state of the art: · use outside of Germany · oral disclosures anywhere · earlier filed but later published applications. · own prior use (6 month grace period)
Terms ofprotection German patents = 20 years from the filing date (may beextendible, e.g. with SPCS and paediatric extensions). Utility models = 10 years. Both subject to the payment of renewal / maintenancefees.
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On what grounds can theterm of a Japanese patent be extended? |
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Inrelation to the novelty of a patent, what grace period is available underJapanese law? |
· As long as patent application is filed within 6months of either: o Art30(1) Disclosure of an invention against will of person entitled o Art30(2) Voluntary disclosure · Then those disclosures will bot form part of thestate of the art in relation to novelty. · Declaration on filing plus written evidencewithin 30 days that disclosure and application relate to same invention. |
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On what issues in relationto a patent is it possible to get an Intellectual Property Opinion? |
ISSUES
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What are the consequencesof getting an Intellectual Property Opinion from the IPO? |
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Jameshas filed an identical patent application under both the EPC and the PatentsAct 1977. He has just been informed that the comptroller will grant him the UKpatent. What will happen if the EPO later grants his European patent (UK)? |
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What is the test for sufficiency? |
Whether skilled person would be able to reduce the invention to practice using only the information provided in the specification. |
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When can an SPC be applied for? |
Acertificate shall be granted if, in the Member State in which the applicationreferred to in Article 7 is submitted and at the date of that application: (a) the product is protected by a basic patentin force; (b) a valid authorization to place the producton the market as a medicinal product has been granted… (c) the product has not already been thesubject of a certificate; (d) the authorization referred to in (b) isthe first authorization to place the product on the market as a medicinalproduct. |
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