Download Patents, TRIPs, and Access: A Crash Course in Intellectual Property

A Crash Course in
Intellectual Property
Virginia Zaunbrecher
Access to Essential Medicines De-Cal
February 22nd 2007
Goal
To understand the basics of
intellectual property, especially
patents, and set the stage for how
it affects access to medicines
Theme
IP is an attempt to balance between
providing financial incentive for
innovation and allowing for access
to technologies
What is Intellectual Property?


Intellectual Property (IP) is a person’s right
to have control over the things s/he
creates.
Things people might receive IP protection
for:




Books
Scientific innovations
Paintings
Logos
How it is IP different from
normal property?

Intangible

Not finite; an idea can be shared with many
people without losing it’s value

Must clear certain hurdles to receive protection
Vs.
Real Property
Intellectual
Property
Why Have IP?

To give people incentive to invent things (Economic
Justifications)
Sales
Economic Justifications for IP
Two years
$100,000
Joe
6 Months
$20,000
George
Economic Justifications for IP
WITHOUT INTELLECTUAL PROPERTY:
Cost per piece for research
and development
Production
costs for 10,000
$10.00/piece
$100,000/10,000 =
Total Production
Price
$20,000/10,000 =
$10
$2
$20
$12
Economic Justifications for IP
WITH INTELLECTUAL PROPERTY:
Two years
$100,000
The Balance of IP Law
Patent law is a balance between two
competing interests
Public Domain
•Allow the public to use
and benefit from the
invention
•Create competition
Property Rights
•Promote research and
protect investments
Examples of Types of IP
Patent
Copyright
Trademark
The “quid pro quo” of Patent
Law
What you give

A written description of
your invention

Enablement: disclose
how to make and use
your invention

Best mode: disclose the
best mode of patenting
your invention
What you get

An exclusive right to
exclude others from
making, selling, or using
your invention for a
limited period of time

The power to assign or
license you rights to
someone else
Subject Matter

You can only patent certain things; the
Supreme Court said “Anything under the sun
made by man.”

What can’t you patent
Laws of nature
 Physical phenomenon

Biotechnology Patents


Can patent DNA sequences even if the
amino acid sequence of the protein is
known
Must meet the other requirements for
patentability


Must know the function of the DNA
So is our DNA infringing?
Requirements for Obtaining a Patent

Novelty


Usefulness



Must not already be know to the public
Must provide some identifiable benefit
Can’t be primarily aesthetic or descriptive
Non-obviousness

Can’t patent something that would have been obvious
to a person of ordinary skill in a particular field
Product vs. Process Patents
Process
Product
Overview of Patent Rights

Time
 Rights last for 20 years from the date of filing, but are
enforceable only after the patent is approved

Right to exclude (not necessarily the right to practice the invention).

Parameters of what is covered
 The rights are limited to what is claimed in the patent, so the
language of the patent is very important

Geography- patent rights only exist in the
country or countries that the inventor files in.
Infringement

When someone uses an IP right without
permission, it is called infringement

Sue for damages or
injunction

Defenses:


Invalidity
Non-infringement
Uses for Patents

Assignment: give someone the entire patent

Licensing: letting a third party use the patented
technology under certain conditions
Licensee
 Exclusive license
Licensor

Non-exclusive license
Licensing

Is a good way to “share” IP; allows more
people to use the technology

Different licensing schemes:
Field of Use restrictions
 Royalty Payments
 Up-front licensing fees
 Free licensing

Limits on Patent Rights

Invalidating patents


The government encourages third parties to
challenge patents
Exhaustion doctrine
Exhaustion Doctrine
Inventor
Gets patent
Mass
manufacture
Parallel Imports
Y buys device in Country B and imports it into Country
A, where it sells device for $75
Country A
X holds patent
for device and
sells it for $100
Country B
X holds patent
for device and
sells it for $50
The Reality of IP law
The Patent and Trademark Office
(PTO) is overworked and can’t
always give the applications a
through review
Litigating patents costs a ton of money,
and sometimes that controls whether
bad patents are challenged
The Bayh-Dohl Act (1980)

Allows universities to patent inventions
created with federal funding

University must disclose invention to
federal funding agency

March-in provision