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Intellectual Property

Intellectual Property. Boston College Law School February 11, 2009 Patent - Subject Matter, Utility. Historical Background. 1474 – Venetian Senate Act 1500s – English Patent Acts 1600s – Colonial Patent Acts 1790 – First U.S. Patent Act 1863 – Major Revision of Act

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Intellectual Property

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  1. Intellectual Property Boston College Law School February 11, 2009 Patent - Subject Matter, Utility

  2. Historical Background • 1474 – Venetian Senate Act • 1500s – English Patent Acts • 1600s – Colonial Patent Acts • 1790 – First U.S. Patent Act • 1863 – Major Revision of Act • 1952 – Current Patent Act • 1960s – Low water mark for enforcement • 1982 – Creation of Federal Circuit

  3. Requirements • (1) Patentable Subject Matter • (2) Novelty • (3) Utility • (4) Nonobviousness • (5) Enablement

  4. Rights Obtained • Rights • Prevent others from: • making, using, selling • offering for sale, importing • Independent invention is not a defense • Term • 20 years from date of application • Formerly 17 years from issuance • Approval • Must get approval from U.S. PTO

  5. Approval Process • File application w/ PTO • Review by PTO for patentability • Back and forth between applicant and PTO • Publication of some patent applications • Issuance or rejection of patent • Appeal to review board, CAFC • Reexamination procedure

  6. Sample Patent

  7. Theories • Economic theory • Solve basic public goods problem • Questions re: proper scope and structure • Benefits? • Incentives for inventive activity • Disclosure of inventions • Costs? • Higher prices for consumers • Restrict other inventors who build on invention • Licensing costs • Administrative costs

  8. Subject Matter • 35 U.S.C. § 101 • “any … process, machine, manufacture, … composition of matter, or … improvement thereof.”

  9. Diamond v. Chakrabarty • Three claims • Process for producing bacterium • Combination of bacterium & carrier • Bacterium itself

  10. Subject Matter • Not patentable subject matter • Laws of nature • Physical phenomena • Abstract ideas • Printed matter • Formerly not patentable; now patentable • Software • Business methods

  11. State Street Bank v. Signature A data processing system … comprising: (a) a computer processor means for processing data; (b) storage means for storing data …; (c) first means for initializing the storage medium; (d) second means for processing data regarding assets in the portfolio and each of the funds from a previous day and data regarding increases or decreases in each of the funds’ assets and allocating the percentage share that each fund holds in the portfolio; …. Pooled Mutual Fund

  12. Business Method Patents? • Should business methods be patentable? • Some hypotheticals: • FedEx overnight delivery? • Netflix DVD rental? • New type of tax shelter? • More efficient athletic maneuver?

  13. Requirements • (1) Patentable Subject Matter • (2) Novelty • (3) Utility • (4) Nonobviousness • (5) Enablement

  14. Utility • General Utility • Specific Utility • Moral Utility

  15. Utility?

  16. Utility?

  17. Administrative • Next Assignment • Read into IV.B.4 – Nonobviousness • Through “Combining References”

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