Archive for the ‘Patent’ Category
The concept of a patent pool is fairly new, if not totally unknown in the South African IP protection context.
The concept of a patent pool is however not new in the world. The first example of a patent pool date back to 1856 where sewing machine manufacturers, Grover, Baker, Singer, Wheeler and Wilson had patents and were in the process of instituting patent infringement actions against each other. This obviously led to the danger that profits can be diluted because of legal fees.
The parties then entered into cross-licensing agreements to make technology available to each other whilst limiting cross-licensing fees and thereby to lower the costs of products to the consumer.
Another example of a patent pool dates back to 1917 when patent held by the Wright Company and the Curtiss Company hampered the development of new airplanes that were needed for World War I. The solution was that the parties "pooled patents" by entering into cross-licensing agreements which allowed the relevant parties to use each other technologies whilst earning a realistic income from their patents.
In essence the basis of a patent pool is a cross licensing arrangement, to the benefit of the patent contributors and administered by an independent administrator.
However, in most instances patent pools are complex arrangements, which need to be set up by experienced practitioners in order to achieve their aims for the benefit of the contributors, and the end user, whilst avoiding anti-trust/price, fixing enquiries.
For more information on Patent Pools, Cross-Licensing, and Intellectual Partnering, you are welcome to contact Smit & Van Wyk, Inc.
Some of this information has been taken from Wikipedia, and for further reading, the following links make for interesting reading matter:
http://en.wikipedia.org/wiki/Patent_pool
http://en.wikipedia.org/wiki/The_Wright_brothers_patent_war#The_patent_pool_solution
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The remark is often made that institutions do not protect their IP because they favour an "open source development" or "open source innovation" model.
The basis of this viewpoint is that knowledgeable individuals contribute "free of charge" to provide products (software etc.) which is available to other contributors. In exchange such individuals has access to the development of other contributors "free of charge". This development model is used to develop cutting edge technology in a rapid changing technological environment.
Opposed to the open source development model there is the "Legally protected" development model, which use legal tools to protect IP for the benefit of the individual or the institution. The advantage of this system is that the individual or institution can recover their investment in research and development over a period of 20 years. This model is used by pharmaceutical companies to develop new health solutions for the benefit of mankind, but with the knowledge that their (very costly) investment will be recovered in future.
These viewpoints are often presented as opposing viewpoints with proponents of each justifying the one against the other. However it is a widely accepted fact that each of these models has its own benefits and their own drawbacks.
Smit & Van Wyk, Inc. with individuals coming from a background of high technology development, but being at the forefront of legal protection of our clients rights, have the view that these two diverse models can be combined into a new "Legally protected open source model" (LPOSM) to maximise the benefits of each model whilst minimising the disadvantages of each model.
The LPOSM model incorporate use of open source technologies as input to new development and making available new developments to the open source community where appropriate, but to incorporate certain technologies (normally not available in the open source market) into products by using patent pools and commercial agreements to access such technology whilst legally protecting certain core competencies.
Smit & Van Wyk, Inc. can be contacted for more information on open source development, the LPOSM model, and legal protection of IP rights.
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April 7, 2010 | Patent
South Africa patent attorneys assist clients in the application process to obtain invention rights. They help with the completion of forms, description of the invention, signing of documents, setting up the specifications, and also agreements with third parties. Once the patent has been granted to the client, the South Africa patent attorneys will remind the client of payments due to the South African Patent Office for renewal of rights. The patent attorneys also assist with international patent applications once the application has been filed in South Africa. Where the client wants to transfer rights to another party, the South Africa patent attorneys will help to setup agreements. In addition any disputes or litigation required will be handled by the attorneys.
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April 7, 2010 | Patent
The Smit & Van Wyk Pretoria patent attorneys assist clients in the international patent rights application process. A patent is not valid in another country, unless it is registered there. As such the next step in the patent registration process once done in South Africa is to file for registration in the countries required. It would have been a tremendous task if it wasn’t for the Patent Co-operation Treaty allowing for the registration of a patent in 133 countries at once. The whole process is best handled by the Pretoria patent attorneys. Under the treaty the applicant doesn’t have to apply for registration in each individual country, but can file one application to be valid in all the participating countries. It is still a complicated process and best handled by experienced lawyers such as the Smit & Van Wyk team.
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April 7, 2010 | Patent
Role of Pretoria patent lawyers in defending patent rights
Since South Africa doesn’t have an investigating patent office, the applicants must make sure that their inventions meet the minimum requirements for patents. As such it can happen that the patentability of an invention can be questioned by another party even when the patent has been registered. The Pretoria patent lawyers of Smit & Van Wyk make sure that every application that goes through our office does indeed meet the minimum requirements and more for patentability. Areas that can be challenged include that of obviousness of the invention, originality, and usefulness. If a patent has been disclosed previously before filing for registration, another party may question its validity. If you find yourself in such a situation get in contact with the team of Pretoria patent lawyers to help with litigation.
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April 7, 2010 | Patent
Role of Gauteng patent attorneys regarding applications in other countries
To register an invention for patent rights in another country, you need to file and international patent application. The Smit & Van Wyk Gauteng patent attorneys have extensive experience in this regard and will be able to do so for you. Under the Paris Patent Cooperation Treaty, only one application is required for registration of a patent in 133 member countries. South Africa is also a member country ensuring cost and time savings when it comes to international patent applications. The process however, must be done correctly to ensure that you will not waste money. As such the expertise of the Smit & Van Wyk Gauteng patent attorneys becomes all the more important. We will also arrange for an international search of databases and ensure the full assessment of your invention at the European Patent Office.
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April 7, 2010 | Patent
Some of the key responsibilities regarding patent applications of the Smit & Van Wyk Gauteng patent lawyers are briefly described below.
The Smit & Van Wyk Gauteng patent lawyers assess the inventiveness of the application and assist in the completion of all relevant documents to ensure that the applicant’s rights are protected to the maximum. Our team of Gauteng patent lawyers provide a range of consultation and litigation services including that of agreement setup and review, and the taking of steps against parties guilty of patent rights infringement. Our team furthermore handles the renewals, conducts novelty searches, helps with the filing of claims, and assists with writing the descriptions for the patent applications ensuring that the applications are done professionally.
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April 7, 2010 | Patent
The Smit & Van Wyk Gauteng patent Attorneys assist clients in various ways including that of consultation. One example of a situation where the guidance of the Smit & Van Wyk Attorneys will be useful is that of knowing the rights that are obtained when a patent application is successful. Advice will be provided such as that the patent rights are only valid for 20 years according to the specific country’s laws and subject to the renewal fees payment. In addition the client will be advised on the exploitation rights associated with the invention. If for example, a person invented a soda machine that is an improvement on another type of soda machine, the rights owner will only be able to commercially exploit their patent rights on the improved machine if the permission of the original rights owner of the machine improved upon is obtained.
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South Africa Patent Laws favour the usage of attorneys Even though it is possible to file a patent application directly without the usage of a patent lawyer or attorney, it cannot be recommended. The reason is simple. The South Africa patent laws favour the usage of an attorney. The South African Patent Office is a non-investigating office. This means that you can complete the application, file it and even receive the patent right upon payment of the required fees without the invention complying with all the requirements. It is not a loophole in the system. It simply means that the responsibility lies with the applicant to ensure that the invention is indeed patentable and that the application will be done correctly. The snag comes in when another applicant or company questions the patentability of the invention down the line or argues that the idea was not original at all. Lawsuits may follow and all the money already spent in the commercial development of the patent may be lost forever. You will need the help of a patent lawyer who knows the South Africa patent laws and will conduct the novelty searches and apply in the correct manner right from the word go.
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The term "inventor" is not defined in the South African Patents Act.
It can however be assumed that an inventor is a person that makes an invention that qualifies as an invention in terms of the Patents Act.
Taking into account what the requirements of patentability are, it can be assumed that a person that come up with an invention that is novel, inventive and has application in trade or industry, qualifies as an inventor.
In the same way as patent claims are construed, i.e. in terms of integers (or essential elements), it can be assumed that a person that bring those integers together will be the inventor. The question is therefore: Who the person(s) is(are) that brought those integers together?
It may be that one person brought together the integers in one claim and another person contributed to the integers in another claim. They will then be co-inventors (or joint inventors). It may also be that both persons contributed to the integers in a single claim, then they will also be co-inventors (or joint inventors). If a single person brought together all the integers of the claims in a patent specification, that person will be a sole inventor.
In event of a dispute to inventorship in which one person inventively contributed to certain claims and another person contributed to certain other claims, the claims to which the inventor cannot lay claim to, may be excised from the set of claims, so as to overcome such a dispute.
Upon filing a patent application the inventor signs a declaration that he/she is the true inventor. A misrepresentation on this declaration may be grounds for revocation of a patent.
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