A form of intellectual property right. Derived from the Latin word pat re, which means to be open or public.
Intellectual property can be broadly classified into two categories: copyright and industrial property. Industrial property can be further classified into six categories: patent, geographical indications, industrial designs, trademarks, layout designs of integrated circuits, and trade secrets. These are now governed under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO).
A patent is a form of government grant allowing monopoly use of an invention for a limited amount of time. Patents are a method by which the innovator or inventor can protect his or her innovation or invention and have rights to exclude others from using it. Patents are useful because protecting an invention and creating rights of the originator on his invention give impetus to further research and technological development.
Patents have a long history. In Britain, patents can be traced to the fifteenth 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 and 1590, Elizabeth I granted fifty patents. These patents covered various items, including soap, salt peter, alum, leather, salt, glass, knives, sailcloth, sulphur, starch, iron, and paper. An example of refusal to grant a patent is related to the case in 1596 of John Harrington’s design for a water closet. In the United States, the first patent was granted for a method for making potash. This patent was issued in 1790. Before 1793, the secretary of state, secretary of war, and attorney general examined the patents applications.
The importance of patents can be understood in the context of the development of the telegraph. A patent was used for dominating the market and preventing competition. During the 1870s, there was great competition between the financiers Cornelius Vanderbilt and Jay Gould to get control of Thomas Alva Edison’s telegraph patents. A patent was indeed a financial asset for a business. In the case of the radio, the Radio Corporation of America purchased the patents of Guglielmo Marconi. However, during the depression years of the 1930s the patent system received a setback as it was felt that patents led to monopolization.
A patent is a legal document. Patents are protection accorded by national governments to an inventor and are valid for a fixed number of years. During this period, the patent holder has an exclusive right to use his or her 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 having the right to exclude. In return for this right, the patent holder discloses details of his or her invention to the people by filing the details with the Patent Office. Usually in most countries, the patent is given for a period of twenty years from the date of filing. After the expiration 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, patents have two limitations—of time period and of territorial applicability.
By guaranteeing exclusive ownership over a new invention or process method for a set period, patents are designed to spur innovation. Here, Thomas E. Robertson, the commissioner of patents, displays patented machinery, tools, and an umbrella in 1930. (Library of Congress)
The issue of international protection emerged during the International Exhibition on Inventions in Vienna in 1873. Inventors were afraid that their ideas would be stolen for commercial purposes in foreign countries. This finally led to the the Paris Convention for the Protection of Industrial Property in 1883. This treaty, which was enforced in 1884, helped patent holders receive protection in foreign countries. To this was added the Bern Convention for the Protection of Literary and Artistic Works (1886), both of which were admin istered by an international bureau, the Bureau Interationaux pour la Protection de la Propriété Intellectuelle. This led to the formation of the World Intellectual Property Organization (WIPO) in 1967. WIPO became a specialized agency of the United Nations in 1974 charged with administering intellectual property issues of its member states. WIPO also helped put in place treaty arrangements for a single international patent application through agreements like the Patent Cooperation Treaty. Provisions of the WTO under the TRIPs Agreement give an added benefit that patents filed in one country will be valid in all signatory countries to the TRIPS Agreement. This also means that the signatory countries for any issue or dispute are under the jurisdiction of the WTO dispute settlement mechanism. WIPO and TRIPS now have a cooperation arrangement between the two organizations.
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. Plant patents are granted for inventions or discoveries of plants, 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 nonobvious processes, machines, articles of manufacture, or compositions of matter, or any new and useful improvement on an existing product or thing.
For the future, there are important issues that concern the topic of patents, for example, the patent of lifesaving drugs. Particularly with diseases like AIDS, patented drugs are usually too costly for poor people in 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.
Many inventions come out of small and medium-sized enterprises, but many of these lack the awareness and resources to be able to use patent systems. In such cases, bigger firms that have the power to commercialize their patented inventions have an advantage over the smaller firms.
Anup Mukherjee
See also: United Nations; World Trade Organization.
Beier, Friedrich-Karl, and Gerhard Schricker, eds. From GATT to TRIPS: The Agreement on Trade-Related Aspects of Intellectual Property Rights. New York: VCH, 1996.
Correa, Carlos M., and Abdulquwi A. Yusuf. Intellectual Property and International Trade: The TRIPS Agreement. Boston: Kluwer Law International, 1998.