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Archive for September, 2012

PATENT TUTORIALS: Basics of PATENTS: Types of Patents, Patent Searches & Patent Application

Posted by Rahul Dev on September 17, 2012

Article Source: http://techcorplegal.com/Blog_Technology_Law_Business_Research/2012/09/17/patent-tutorials-basics-of-patents-types-of-patents-patent-searches-patent-application/

PATENT TUTORIALS

Why is a Patent search required?

There are many reasons to perform a patent search. The most obvious reason to perform the search is to know if the invention can be patented or has been already patented. The other reasons for performing a patent search are listed below:

  1. To make the concept clear of how the application and patent is designed and to use the idea to prepare your own application.
  2. To acquire knowledge about a new subject.
  3. To attain information about market.
  4. To track the competitor and the technology used by him.

Explanations of types of Patents

  • Invention of a Patent – The innovation of an unconventional, non obvious and useful object, device, composition or a process defines ‘invention of a patent’.
  • Application of a Patent – The detailed description of an invention demonstrated in a printed document which is to be submitted to a Patent Office to secure a patent on the invention.
  • Patent – The government assigns the license of ownership to the inventor that gives him the claim to debar others from making, using or selling the claimed invention.
  • Reduction to Practice – The detailed description of making and using the invention compactly.
  • Prior Art – Prior art constitutes all information that has been made available to the public in any form before a given date that might be relevant to a patent’s claims of originality. If an invention has been described in the prior art, a patent on that invention is not valid.

TYPES OF PATENTS

The patents are differentiated on the basis of their nature of invention. They are broadly classified into three types:

  1. Utility Patents – The inventor inventing any unconventional object, device, composition or process can have utility patent.
  2. Design Patents – The inventor inventing any new ornamental design of an article of manufacture can have design patent.
  3. Plant Patents – The inventor inventing or discovering a new variety of plant by reproducing it asexually can have plant patent.

Patentable Inventions

Inventions of Utility – The utility patents are classified into five legal classes:

  1. Processes which include conventional process i.e. making of an article, and software processes.
  2. Machines which include conventional machines (machines with moveable parts) and software machines.
  3. Manufactured Products which include articles with non movable parts.
  4. Compositions of Matter which include chemicals, alloys and pharmaceuticals.
  5. The new changes in the above mentioned inventions.

The invention must be useful. The invention must be original that has its own valuable features and has never been seen before. The invention should be noticeable to the skilled people of the area of invention.

  • Inventions of Design
  • Invention of Asexually Reproducible Plants

Non-Patentable Inventions

  • Changed size, shape, or form.
  • Adjustability.
  • Natural Laws
  • Brief Ideas
  • Seniority over Secondary
  • Usage of old Art
  • Deduction of Parts
  • Musical and Dramatic works
  • Inventions made for illegal purposes
  • Inventions made against law of nature

Fictions related to Patents

  • Valuable Patents

This is not true as the patents have monetary value only, that is also when they are used to protect the patent’s claim by excluding others from making, using or selling the invention.

  • Government verified Patents

This is not true as the patents are not verified by the government. The government is not involved in seeing whether the patent will work or not. 

  • Provisional Patent

This is not true as the term ‘Provisional Patent’ does not exist. A provisional application can be filed in most jurisdictions, which provides a date for priority placeholder. If the filing of full application is not done within one year, the priority date is lost. 

  • Just the idea is described in the Provisional Application

This is not true as full disclosure is required for filing the provisional application and the information should also be detailed in the application. The formal structure, the disclosure and the claims of the full application are not required by the provisional application.

  • Patent for an Idea

This is not true as patent is not obtained for an idea or just a suggestion. Patents are granted to those who invent or discover a new and useful object, device, composition or a process, or make any useful improvement. Complete and enabling disclosure is also required. 

  • The owner is given the exclusive rights to make, use and sell the invention

This is not true as the owner is given the right to exclude others from making, using and selling the patent’s claims. An inventor having broader claims in a prior patent can prevent the inventor, with narrow claims from using the inventor’s own patent. 

  • Honoring US Patent worldwide

This is not true as US patent is enforced only in US. The US inventor can stop from importing what is covered in US, but the inventor is free to make, use and sell the invention in any country. 

  • Infringement of Patent is a Crime

This is not true as a patent in combination with a legal opinion will only give the right to sue in a civil case against the alleged offender. Infringement of a patent is not a crime. For enforcing the rights the responsibility is granted by a patent and it is in the hands of the patent owner. 

Patent Classification

Patent Classification helps in categorizing an invention. It is characteristically expressed as “482/1”. The class of the invention is expressed by 482. The following number is the subclass. In the USPC there are 450 classes and 150000 subclasses. Short descriptions are provided by the titles of classes and sub classes. For classification process, the patents are always classified under sub class level. Each patent and published application is assigned to one or more classification.

Importance of Patent Classification

  • Used as a tool to search patents.
  • For assisting the patent application to examiner for examination process.
  • Have definitions.
  • Have relationships with one another.

Keywords: patent application, US Patent and Trademark Office, provisional application, non provisional application, foreign patents, patent search, patent application, types of patents, unconventional products, patent application, detailed description of a patent, utility patents, design patents, plant patents, ornamental design, utility inventions, design inventions, plant inventions, conventional process, conventional machines, manufactured products, compositions of matter, valuable patents, patentable, adjustability, natural laws, illegal purposes, law of nature, patent classification, classes, sub classes, patent titles, published patent application, patent classification, patent search, patent examination process, comprehensive patents.

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Contributors: Prity Khastgir and Rahul Dev 

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APP LAW: Mobile & Software Applications, Patents & Legal Issues [Software Patents | Business Method Patents]

Posted by Rahul Dev on September 16, 2012

Article Source: http://techcorplegal.com/Blog_Technology_Law_Business_Research/2012/09/08/app-law-mobile-software-applications-patents-legal-issues/

If we look back and analyse the recent developments in the field of mobile devices, we would observe that the rate of iOS and Android device adoption has surpassed that of any consumer technology in history. If this rate is compared to recent technologies, it is interestingly observed that smart device adoption is being adopted 10 times faster than that of the 80s PC revolution. In a span of almost five years, expansion of this new technology is rapidly expanding beyond early adopter markets such as such as North America and Western Europe. Based on current figures, it is estimated that there were over approximately 640 million iOS and Android devices in use during the month of July 2012.

As a result of such massive growth in this sector, a new term, “App Law” is regularly discussed these days, which is basically a new development taking place in other areas of law. It includes four main sectors, which are PATENTS, COPYRIGHT, TRADEMARK and PRIVACY. Generally, the following list focuses on common issues that should be considered while developing the app business:

  1. Problems can be faced if too much is borrowed from someone’s work. Ideas are not protected only their expressions are protected.
  2. The inventor should legally own all the aspects of the app including the story, images and sound. If the work is copied, the inventor is put on a direct path with a lawsuit. Licensing is often more complicated and expensive than original work.
  3. The app must be registered with the Copyright Office to have federal protection right in order to sue others from someone infringing the app. Registering also provides notices for those searching the copyright database.
  4. A competent attorney should be consulted for liabilities and tax influence the type of business formed. Failure to do so may expose you to additional liability.
  5. Information should be collected, processed and developed in a proper manner.
  6. A marketing plan should be developed at an early stage to avoid wastage of time.

Mobile Applications: Patents

Software and Mobile Apps, including those sold in Apple’s App Store for the iPhone and the Android Market for Android phones, are an increasingly profitable market with huge commercial benefits. Mobile apps are similar to other software and business methods when it comes to patent eligibility and patentability, which effectively implies that apps are patentable.

For example, Google has been recently awarded a patent, called "Login to a computing device based on facial recognition," that describes a technology for identifying a person’s face and delivering to that person full access to personal information on a device. In use, Google’s patent requires a camera that can identify a person’s face. If that face matches a "predetermined identity," then the person is logged into the respective device. If multiple people want to access a computer, the next person would get in front of the camera, and the device’s software would automatically transition to the new user’s profile.

To satisfy the patentability and patent eligibility in US, an invention must meet the requirements of 35 U.S.C. §§ 101, 102, 103 and 112 of the US Patents Act, which may be summarized as follows:

35 U.S.C. § 101 – Inventions Patentable – Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

35 U.S.C. § 102 – Conditions for patentability; novelty and loss of right to patent – 35 USC § 102(a):  A person shall be entitled to a patent unless the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent. 35 USC § 102(b) – A person shall be entitled to a patent unless the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.

35 U.S.C. § 112 – Specification – 35 USC § 112(a):  The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

Mobile Applications: Legal Issues

For even small and start-up technology companies, one of the largest and quickest revenue generators is the MOBILE APPLICATION DEVELOPMENT. However, the more important and serious issues for mobile application development companies are legal protection and agreement for their applications. The laws governing the mobile applications widely depend on nature of subject, nature of consumer and the business model used for developing the application, it is necessary to consider the following points:

Intellectual Property Right (IPRs) in Application Software

A copyright is given to the intellectual property right in the application software which is enjoyed by the authors from the moment the code is written by them. If the application development code is outsourced to a vendor, which is either achieved through a joint venture or taken from open source software, in any case the ownership to the copyright may be complicated.  When a part or complete application development has been outsourced, the vendor agreement should safeguard the financing party that all the IPRs have been acquired through a properly legal drafted “work for hire” clause. Moreover, while the application is being developed it is very important that the vendor should be bound with a non disclosure agreement so that confidentiality is ensured.

When an application is developed and owned by a partnership, the IPR only over the subject is owned by each company. If any party of the partnership wants to further exploit the application for commercial or non-commercial purposes, then the partnership agreement should be executed. Each party will be required to account the financial benefits derived from the usage of the application to the other party.

Open Source Software

Open source software is used in 88% of Android phones and 41% of the IOS phones. OSS licenses have special requirement for attribution, distribution and non-discrimination with respect to the platform. Further, a single application may use a combination of OSSs, each governed by a different license.

Intellectually Property Right in Content

Copyright content such as images, videos and sound recordings might be used in the development of the application. “Right Clearance” is required by the developers from the copyright owners in order to be protected against infringement claims. It is important to receive permission for use where such rights have not been licensed.

If the application or its features are similar to a prior registered or recognized trademark, Trademark issues might also arise. The actual test of the infringement is recognizing the use of another’s trademark which is not confusing the user regarding the origin of the application. This could lead to the infringement in a number of different ways which include:

  1. Name of the application.
  2. Layout of the application.
  3. Existing trademark used in the marketing of the application.

In order to avoid the infringement issues, the developer should identify the use of prior trademarks and inform the user that the application is not endorsed by the trademark owner. If the requirements of the safe harbor clause are followed by the developer, Digital Millennium Copyright Act might help avoiding the liability. The requirements include:

  1. When a complaint is received remove the infringing material.
  2. Disable the repeat infringers from using the application.
  3. No direct financial benefit from the infringing activity.
  4. Adopt technical measures to avoid infringement.

Privacy and Data Collection Issues

Recent studies show that privacy and data storage have become real concerns for the users. Failure to address the end user’s privacy may result in a negative way to the application’s consumer support and sale.

Privacy and data protection can be addressed by making effective terms of use and privacy policy statements that are reflective of the developer’s consumer base practices. The privacy statements must include:

  1. Information collected
  2. Way of storing
  3. Usage by the developer
  4. Privacy on the information
  5. Providing information
  6. Contact information for user complaints

Specific laws govern the use of information if the target is towards the application that collects financial, personal or health data.

Jurisdiction

The application developer needs to consult the laws in the country where the application would be distributed. Laws like consumer protection, privacy and data protection are different in U.S. as compared to Europe, China and India. If the App is being distributed in country apart from U.S., it is highly advisable to consult with an attorney or other expert in mobile and consumer laws of those countries.

Visit our Business Blog homepage: http://research.techcorplegal.com/

International Technology Business & Patent Law Firm in India: Patent Drafting, Patent Searching, Patent Filing in India, PCT National Phase Filings in India: http://www.techcorplegal.com/

International Business & Management Company in Singapore: Starting a Business in Singapore: http://www.techcorpgroup.com/

Contributors: Prity Khastgir and Rahul Dev 

We regularly update our Facebook page and share similar stories on Twitter. You can also check out our premium service offerings for Mobile Applications, Social Media & Cyber Laws and Pharmaceuticals, Biotechnology, Food & Healthcare 
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Infographic: APP LAW: Mobile & Software Applications, Patents & Legal Issues [Software Patents | Business Method Patents]

Posted by Rahul Dev on September 16, 2012

Article Source: http://techcorplegal.com/Blog_Technology_Law_Business_Research/2012/09/08/infographic-app-law-mobile-software-applications-patents-legal-issues/

Image003

Visit our Business Blog homepage: http://research.techcorplegal.com/

International Technology Business & Patent Law Firm in India: Patent Drafting, Patent Searching, Patent Filing in India, PCT National Phase Filings in India: http://www.techcorplegal.com/

International Business & Management Company in Singapore: Starting a Business in Singapore: http://www.techcorpgroup.com/

Contributors: Prity Khastgir and Rahul Dev 

We regularly update our Facebook page and share similar stories on Twitter. You can also check out our premium service offerings for Mobile Applications, Social Media & Cyber Laws and Pharmaceuticals, Biotechnology, Food & Healthcare 
To know more about us, get connected with us on LinkedIn or mail us at info [at] techcorplegal [dot] com

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Apple iPhone5: Disappointment, Expected Pricing & Threat of Potential Patent Litigation [Infographic]

Posted by Rahul Dev on September 13, 2012

Image001

Mashable’s Comparison of iPhone 5 with competitors (Samsung, Motorola, Nokia): http://mashable.com/2012/09/12/iphone-5-compared/#879758-7  

Korea Times Report regarding Samsung’s Potential Patent Litigation Threat: http://www.koreatimes.co.kr/www/news/nation/2012/09/182_119602.html   

Visit our Business Blog homepage: http://research.techcorplegal.com/

Contributors: Prity Khastgir and Rahul Dev 

We regularly update our Facebook page and share similar stories on Twitter. You can also check out our premium service offerings for Mobile Applications, Social Media & Cyber Laws and Pharmaceuticals, Biotechnology, Food & Healthcare 
To know more about us, get connected with us on LinkedIn or mail us at info [at] techcorplegal [dot] com

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