Patent

A patent is a statutory granted intellectual property right for an invention. The owner of the patent has the right to authorize others to use the invention or prohibit.

The German word was borrowed in the 17th century from the French patents ( " Bestallungsbrief, business license "). This is reduced from lettre patente ( " Open Letter " ) and goes back to the Latin ( littera ) patens ( "open ( credential ) letter of the sovereign "). Originally it was " an instrument of certain rights " meant that today vast importance developed with the modern patent system since the 19th century. Over 2 million patents are applied for each year.

• 3.1 innovation rates
• 3.2 announcement
• 3.3 Technology Transfer

• 4.1 Economic modeling of the issue of patenting
• 4.2 costs of patenting
• 4.3 Trade Secret
• 4.4 Tradable assets
• 4.5 Image Effect
• 4.6 Patent Strategies

History

Legal families

German legal system

Economic Analysis

The patent owner has the right to prevent copying and use of its patented invention for a certain period. This will make it possible for him to realize a monopolistic price and not only to obtain a compensation for the exploration and development costs of the invention, but also a profit.

The fundamental problem to solve, patent protection is market failure that results from the positive externality of research: In general, the social benefits of the present invention is significantly higher than the private benefit. Therefore, the private research alone would invest too little. Weak property rights lead to suboptimal rates of innovation, because investors are insufficiently remunerated. The state can combat this market failure by subsidizing research through tax dollars, or by defining intellectual property rights and protects. However, a too strong property protection is also not optimal because inventions may be too little used and further developed. The strength of the protection of property varies along different dimensions. The height is defined, which invention may be protected. The length defines how long an invention can be protected. The depth defines the scope of protected activities.

There is thus in the case of patents, a tradeoff between providing incentives for research and publication of inventions on the one hand, and the restriction of the use of protected inventions during the patent term on the other. In addition to the limitation of practical utilization of inventions, there may also have negative effects on the rate of development of scientific knowledge ( discussed since the late 1990s, the term anti - commons ): If new scientific knowledge and methods are protected by patent law, it is another researchers difficult to use the methods and build on this knowledge.

Innovation rates

As patents affect (or basic research and applied research) on the scientific and technical progress, is not fully understood. Patents on gene fragments could stop the research because a company that wants to use these gene fragments may only need to purchase multiple licenses from multiple patent owners. The same applies to the patenting of biotechnological basic concepts that are important for further research.

According to an empirical test of the anti - commons for the life sciences, a moderate negative effect on basic research (measured in citations) ago. It is not clear which mechanism is the change in citation behavior based. Maybe a patent merely displaces the focus of other researchers on other well substitutable projects; this would imply a slight negative effect by patents. It is unclear, secondly, whether especially those scientists were concerned, had already quoted the associated with the later issued patent publication beforehand, or whether the reduction is primarily due to a limitation of potentially initial citations.

An international analysis of 177 patents relevant policy measures in 60 countries over 150 years came to the conclusion that an extension of patent protection innovation (measured in granted patents per capita ) benefits when patent protection was weak at first; it hinders the other hand, if the patent was initially strong.

One other study found an associated with a strong patent right lower number of patents, however, may have a greater social benefits than those with a weak patent rights associated larger number of patents, when a larger proportion of the smaller number will continue to develop inventions and reach the product market.

Announcement

After making an invention, the inventor has the option to keep the invention secret or disclose either the public. Since a patent restricts the use of the invention by third parties, increases with the patent protection, the probability that inventions are disclosed. An announcement is for several reasons socially advantageous over a confidentiality: After the expiry of patent protection ( usually 20 years) anyone can take advantage of the invention is free. In addition, an announcement reduced the likelihood that a number of scientists working on the same invention, although it would be more efficient if they researched on different projects. Third, a notification inspire new ideas. For these reasons, patents can bring a benefit to society, even if they should not increase the rates of innovation.

One survey of U.S. and Japanese firms, according to the data associated with the announcement spillovers are relatively low, as in rapidly advancing areas of technology the information is already largely outdated by the time the patent grant.

Technology Transfer

After a patent owner has received a protection for their invention, he can decide whether to use the invention itself, or the right to use transfers through licensing to others. Empirical studies show that the strength of patent protection exerts a significant, positive impact in the direction of licensing. Strong patent rights promote vertical integration and division of labor, since they reduce the transaction costs of transfer negotiations. In the semiconductor industry, specializing in chip design companies formed out after the patent right has been strengthened. In the biotechnology sector is observed that established pharmaceutical companies cooperate with each other with small and young companies.

In this respect, corrected patent his weakness to exclude third parties from use of inventions, to a certain extent self: A stronger exclusion law promotes the transfer of inventions. The Bayh- Dole Act allowed a patent law in the United States, the universities that are funded by public funds inventions, favored the exchange of inventions between universities and the private sector.

On the other hand, can also promote anti-competitive processes a stronger patent law, such as collusion (eg by cross -licensing ) and corporate concentration. Especially in agriculture upstream industry many independent biotechnology companies were taken over by large chemical companies in the 1990s, so Calgene and Asgrow by Monsanto, Mycogen, Dow, or DuPont Pioneer.

Economic aspects

Economic Modelling of the issue of patenting

This question is about the question of whether a market participant to apply for a patent or not. This is done under a given premise, economically rational -designed patent system.

Patents are by economic calculations in a particular area of ​​development ( technology, software, plant varieties, etc.) useful if the development costs ( the costs that are necessary for the development of the invention) are significantly higher than the Plagiierungskosten ( the cost to develop have a copy of the invention necessary). Only then the inventor suffers a disadvantage that can be on the invention not be compensated based by the temporary monopoly of the initial supplier of a product. This cost structure differs greatly depending on the area of ​​development:

Such processes are lengthy development in the art. You have to try out many materials and develop several prototypes until an optimal method was found under certain circumstances. For drugs, it often takes years for a good combination of active substances was found. This optimal solution is known but quickly through market entry and can be easily copied. Thus, in the art is the development time is much larger ( for example, 7 years ) and the time to copy to entry (for example 6 months).

As part of the normative design question of patent law, the theory of property / natural law argument in economic terms commonly used in the legal field is inadmissible because together, there is no rational economic demarcation with her ( in the sense of trade-offs of advantages and disadvantages ).

Costs of patenting

Through a patent application typically incur three types of costs: official fees during the registration process, fees for patent attorneys and other service providers such as researchers or translators and annual official fees for extension of patent protection. The actual amount of the cost is highly dependent on the to be patented invention and the desired geographical scope of patent protection. In a national application is expected as a rule with minimum cost of € 5,000 up to grant. One application at the European Patent Office may easily result in costs of € 10,000 and attracts more costs for the national validation by itself. An extensive property right may cost an applicant from registration to lapse easily € 30,000, but are also € 100,000 and more can not be excluded, if the invention is protected in a variety of national markets. In addition, also may be able to costs incurred for the defense or enforcement of patent protection.

Trade secret

In addition to patent an invention, there is also the possibility of keeping this invention secret ( trade secret ). This is only possible when the invention is not apparent in a product.

Tradable assets

Patents are for accounting purposes can be detected and can have a market value.

They serve as information from market competitors on technical knowledge and Licensing: How Third duplication of innovation is spared, while the patent holder can commercialize his invention by way of licensing risk. In addition, third parties are informed with the protective rights situation looming over claims of patent infringement.

Patents are also the basis for cooperation: Patented inventions can be placed in a division of labor in innovation process or as a deposit in a company to be founded.

In bankruptcies of patents holding company sometimes, the problem is that the patents were pledged to creditors, which makes the continuation of the business by the insolvency administrator or the sale of the insolvent company or even impossible.

Image effect

Patents are used for promotional purposes. With promotions such as " patented " or "patent pending " associate consumers a higher quality, and are willing to accept higher product prices.

Patent strategies

Innovative companies that want to protect their developments against imitation, try a patent protection for such products and processes to achieve, leading to an economic, technical or even just a marketing advantage in order to gain a competitive advantage. A comprehensive patent portfolio of a company can also be helpful if the company wishes to make use of a patent of a competitor ( cross-licensing ), as it can offer the competitors the use of one or more of its patents in return.

The alternative strategy for a company to try instead of patent applications to keep developments secret, is risky in times of increasing employee turnover because of the risk of discovery of a development outside the company is large. There is also the risk that a competitor makes independently the same trends, and in turn logs for a patent. While clearing a number of countries which already companies using a so-called prior user right one, but this is not the case in all countries, so that in secrecy even the danger that the competitor may prohibit the use of the development.

If on the one hand the cost of obtaining a patent is to be avoided, but at the same time to prevent a competitor, for example, makes independent the same development, a patent is obtained in this technology can be a barrier release are made.

One does not always sharp separation of patent types is as follows: stock filed patents for inventions whose commercial exploitability at the time of registration is not yet fixed. Stock patents that improve only existing patents are referred to as expansion patents. Such stock patents bear naturally to an expansion of its own patent portfolio in ( see above).

(Not to be confused with the above blocking publication) as blocking patents refer to those patents that are not used by the patent owner, but merely a third party should deny entry into a particular market segment.

Less well known is that non-profit organizations (eg DVS ) and organizations ( eg DIN ) for the standardization of products and processes to create norms and standards. In the respective committees, the industry work, the craft, research institutions and individuals on an equal footing with. The documents created are presented to the public during an opposition period. Objections and suggestions must be treated by the committee. Products and processes that have been described in a standard or a standard that can not be patented, as they are published. Sometimes it is feared that a company bring in a patented process in a standardization process and is betrayed only afterwards that it holds on the developed standard patents, in order to increase the sales of their own standardization.

However, there is always the possibility that public interest in a compulsory license shall be granted if the patent holder has previously denied the grant of a license at a reasonable royalty.

Patent infringement

As patent infringement is defined as the unlawful use of patents. This may unintentionally and intentionally happen if a technology that is still under an intellectual property right, is used without a license. According to German patent law the respective technology must still be granted in hurting area. On suspicion of a patent infringement, this can be clarified by examining a patent attorney. In Germany 12 civil courts with patent litigation comb chambers are specially designed to patent litigation.