USA patent law | Pro Laywers

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This is an article in December 31, 2002

* * Patent Law Review

Today we are going to introduce a very important problem in Commercial Law: the patent right. The provisions of the eighth paragraph of American constitution first 1789 through security to authors and inventors in their writings and the invention of proprietary rights in a certain period of time, in order to promote the progress of science and useful arts. In 1790, American government carried out the first patent law, then Secretary of state Thomas Jefferson personally approving each patent application. In 1793, Congress passed the patent law, it does not require a review of the invention, the inventor as long as submitted described, image or model, and pay a fee can obtain a patent for invention, the effectiveness of the decision by the court, but also resulting in a lot of litigation. In 1836, the patent law increased censorship. After that, the patent law American several modifications. The patent office from the initial by Secretary of state leaders, and later to the Ministry of the interior management, until now become a subordinate department of the Ministry of commerce.

* patents and patent protection standards *

Speaking of patent itself, it is a kind of intellectual property, patent inventor and the patent owner to prevent others allow the sale, manufacture and use of his invention. To be patentable invention has the preparation method, combination machine, manufacturing and material etc.. In contrast, can not be patentable invention includes mathematical formula, natural phenomena, the laws of physics and logic deduction.

American patent and Trademark Office is responsible for the patent of director Nicholas Godic (Nicholas Godici), an invention must be novel, practical, non obviously, but is artificial or invention, is not a product of nature. He said, this is for many years in the establishment of court trial process about the case of a standard, USA patent and Trademark Office to determine which inventions can be patented according to these standards.

Director Sun Yuanzhao performs the American Asia Pacific Law Research (Andy Sun) said, in the assessment of an invention patent Is it right? Accord with the condition, first to see it Is it right? Is novel, that is to say, Is it right? Before has been made the same technology. If there is, there is no way to obtain a patent. If only slightly modified, these modifications are considered in the technical field of people know things, they do not meet the requirements of non obviously, also cannot get a patent, or do things absolutely no practical value, is not.

Sun Yuanzhao for example, at the beginning of twentieth Century, American Wright brothers invented the airplane, although the material manufacturing aircraft is in daily life can buy, but by special design, new technology has a breakthrough, it is regarded as a great invention. However, the Wright brothers to America patent and Trademark Office to apply for a patent protection when encountered difficulties. The censor initially written examination, the bold, new invention half-believe in, later in the Wright brothers fully explained his invention meets the standards of patent protection, to grant them the invention patent.

Godic said that, unlike the trademark law is USA, only the Federal Patent Law, no state patent law, so the patent application must be American patent and Trademark Office, trademark law is federal and state, people can be registered trademarks in the state, also can be to the federal government registered trademark, also can get the protection of trademark rights a certain degree of the common law. Godic said, USA patent and Trademark Office approved each year about one hundred and seventy thousand patents, and forty-five percent patents for America abroad from. He said, America patent system is widely used to foreigners. America outside the person or any other person once American patent, can obtain patent protection in America, and America market is vast, therefore, protection of original technology application has been American patent right is very important, so that their products into the America market can get protection.

* * patent infringement

Next, we'll talk about patent infringement. Patent infringement is simply without the consent of the owner and the use of his patent patent, it is intruded into his private property without the consent of the owner. Sun Yuanzhao said, in America, tort liability can be divided into direct and indirect responsibility responsibility. He said, the direct infringement is you know is other people's patents, but not by his consent unauthorized use, manufacturing and sales, which is the direct infringement. Indirect infringement and vicarious infringement or infringement. For example, someone a production equipment, know people with this equipment, the main function is to do something, and this will constitute an infringement. Although on the surface this person is not directly infringes the rights of others, but this thing through his design, others manufacturing constitute direct infringement, he may be liable for indirect infringement liability.

Sun Yuanzhao pointed out that, from the perspective of the content, the patent infringement can be divided into literal infringement (literal Infringement) and equivalent infringement (infringement under the doctrine of equivalents). He said, the court ruled on this issue is the accused and the inventor patent above written text comparison, and then have a look inside the products of every part and component Is it right? Conform to the plaintiff, is also the inventor was described in the patent application of each of the elements. If each element and it's like, constitute the infringement. If the plaintiff's invention, his technique from a, B, C three things, but also found a, B, C three things in the technology, which constitute the so-called literal infringement. Sun Yuanzhao said, the so-called "doctrine of equivalents" mean, the plaintiff has a, B, C three things, the defendant that Fang Ye has a, B, C three things, but a little change of some. This time, both seem very similar, but if not completely consistent, this is not the right infringement?

Sun Yuanzhao said, standing in the right position, he would say that although on the surface the defendant for his techniques do not constitute the infringement, but he managed to make some changes slightly or equal to his technique, therefore constitute the equivalent infringement.

If the patent owner found someone without his permission to use his patent invention, he may bring suit to federal court, if the lawsuit is successful, the court would ban, don't allow the infringer to continue to use or sale is the patent infringement, and awarded the patent owner compensation. The court also can reach an agreement with the parties concerned, the infringement of patent owner to pay the fees for the use of direction, in return for the use of patent licensing.

* two equivalent infringement case *

Here, we introduce with equivalent infringement case, Varna Jenkinson company sued Hilton Davies chemical company (Warner-Jenkinson v. Hilton Davis). Jenkinson and Davies are the production of dye company, because of their dye is mainly used for food, so the Federal Food and Drug Administration very high purity required of it, must not have any adverse effect. In addition, in the refining process, the cost is very high. In twentieth Century 80, the Davies Company in order to reduce costs, developed the extraction method of high purity of the new, and applied for a patent. The company described in the letters patent, produced by the method of stain very high purity, pH value (pH value is between 6 to 9). Davies Company is the pH value as the upper limit of 9 is because people are already invented a pH above 9 in the technology before it, it does so in order to avoid the infringement of the patent. Jenkinson company also developed high purity refining methods of its own in 1986, pH 5.

Davies Company filed a patent infringement lawsuit to the district court for the Southern District of Ohio in 1991. It means, method of making Zhan Jinsen company and it's like, the only difference is that the pH value. Since 6 to 9 is the Davies Company's pH value, the 5 is Zhan Jinsen, pH, apparently Zhan Jinsen did not constitute the infringement.

However, Davies Company, Zhan Jinsen's invention is equivalent to its invention, constitute the equivalent infringement. The jury after several days of consideration of the last judgment, Zhan Jinsen equivalent infringement. The jury also judge, Zhan Jinsen is not intentional torts, so Davies Company finally received only requested compensation for 20%. The Federal Circuit Court of appeals also support the decision of the lower court. Jenkinson against the company, filed an appeal to the Supreme Court of the USA.

In October 15, 1996, the Supreme Court held a hearing. This case is involved in determining, between a new invention and existing patent how similar to constitute infringement issues, equivalent infringement principle could be used as a legal standard? In March 3, 1997, the Federal Supreme Court made a positive answer. The court's decision to continue to follow the principle of equivalent infringement. Award points out at the same time, the court of appeals did not consider all the requirements of the principle of equal, so the case back for retrial.

However, in this case the outcome of some beyond all expectations. When the two food dye company in order to involve hundreds of billions of dollars worth of business to fight, the people very much like to see who wins and who loses, the two companies have been another company merger and acquisition has become the same company, the dispute this. Although people have not seen the legal solution. However, American Federal Supreme Court recognized the doctrine of equivalents for the future law played an important role.

Another case is the tiger limited prosecution of scientific research fund project (SunTiger, Inc. v. Scientific Research Funding Group), also relates to the equivalent infringement problems. This case is about twentieth Century, at the end of the 70's, America NASA scientists have invented a sunglass lens technology, can block the harmful ultraviolet radiation, protect eyesight. According to this technique made glasses containing orange paint, this technology in the domestic and international America obtained several patents, sun tiger Limited is the result of America Aerospace Bureau approval only sell this technology company. However, in 1994, the scientific research foundation of making a commercial film, after the sale of Eagle Eye Sunglasses,, it reached sales agreement and another TV, broadcast the film on television and the sale of Eagle Eye Sunglasses, also with another company to reach retail contract.

The tiger company alleged, the scientific research foundation of the infringement, the court's ruling agree with them. Award points out, although the scientific research fund of infringing products with the orange paint like sun tiger company outside, also added a layer of gray paint, therefore is not literal infringement, however, the infringing products don't need and elements of patent products exactly the same, it is the patent infringement, as long as part of the same a equivalent infringement. At last the sun tiger company received $two million seven hundred thousand in damages.

Deputy director of American Georgetown University Law Center Fei Nengwen (James Feinerman) points out, USA patent law in the same infringement principle and some of the other countries practices vary. He said, America patent law protection is not only the patent of invention patent protection, also behind the idea. He said, if someone on the "back door" to achieve the same result, but also called his approach and the existing patent approach is somewhat different, America court generally judge, patent covers a similar approach. However, in many other countries, even a millimeter is poor, different patent, so it is not affected by other existing patents.

* NEW * patent protection

After understanding the American patent law, let us have a look some developments of patent protection. Sun Yuanzhao pointed out that, over the past twenty years and thirty years for computer software, whether can obtain patent protection caused much controversy in the USA. The judgment of the court on the issue from the initial basically do not give patent protection to the mid of 90's of twentieth Century given patent protection, which is a very famous case called "State Street bank (State Street Bank case)".

Sun Yuanzhao said, "State Street bank" is very famous Boston, it developed a business method software can engage in mutual fund investment, put a lot of portfolio together, can get high profit, pay less the cost, but also to the stock market closing time, immediately can be calculated on the same day how much profit and loss. However, if this program can obtain patent protection? Sun Yuanzhao said, the decision of the court is in the affirmative. He said, at present, in the American, all computer software as long as the novel, useful and non - obviously standard, can apply for patent protection, while Europe and Japan as the rule is more conservative, generally do not casually give the patent protection of computer software.

Sun Yuanzhao added that, in the patent protection, USA, EU and Japan are the three major market is trying to seek international integration, its purpose is to in the procedure as simple as possible, at the same time as far as possible synergistic in content and standards. He thinks, if can obtain patent protection for the three markets, to obtain the market to protect the global eighty-five percent to ninety percent, so a great influence.

Professor Fei Nengwen talks about the matters needing attention in the China Company and Usa Inc in the communication process. He said, first of all, the China Company should know, the Usa Inc to protect their patent technology, they are on the infringement proceedings are active. Therefore, the China Company must be very careful not to violate the patent and intellectual property Usa Inc. However, fee Wen pointed out, the China Company should also understand, even for patent infringement lawsuit can eat, but also to find a solution through consultations. He said, Usa Inc know, into the China market is very expensive and difficult, if the China Company to pay their patent royalties, they are willing to give them permission to use, because they may fight to the international market, their products can enter the China market.