Patent Law

Jody Blanke, ProfessorComputer Information

Systems and LawMercer University, Atlanta

U.S. Constitution Article I, Section 8 of the

Constitution To promote the progress of science

and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Protection Patents protect the underlying idea

whereas copyrights protect only an expression (of an idea)

e.g., Thomas Edison v. Joe Schmoe Patents last for 20 years (from date of filing) Patents protect from independent creation

copyrights do not U.S. protects first to invent, not first to file

§ 101 Subject Matter Invention must be new and useful

process machine manufacture, or composition of matter

Can include “anything under the sun that is made by man.”

Cannot include laws of nature, scientific principles, mathematical formulas

§ 102 Novelty Cannot get a patent if

the inventor did not himself invent the subject matter

the invention was known or used by others in the U.S. or patented or described in a printed publication anywhere, or

the invention was in public use or on sale in the U.S. more than one year prior to filing

§ 103 Nonobviousness The differences between the

invention and the prior art must not have been obvious at the time of invention to a person having ordinary skill in the art e.g., cable ties

Sword or Shield Patents can be used offensively or

defensively may be held like a trump card e.g., Amazon v. Barnes & Noble

Patent holders may get greedy e.g., Compton’s Media, British

Telecom

Opening of the Floodgates Software patents Business method patents

State Street Bank & Trust (1998)