Market of the knowledge-intensive products. Market of patents and licenses

Date: 2015-10-07; view: 412.

Knowledge Intensive Business Services (commonly known as KIBS) are services and business operations heavily reliant on professional knowledge. They are mainly concerned with providing knowledge-intensive support for the business processes of other organizations. As a result, their employment structures are heavily weighted towards scientists, engineers, and other experts. It is common to distinguish between T-KIBS, (those with high use of scientific and technological knowledge - R&D services, engineering services, computer services, etc.), and P-KIBS, who are more traditional professional services - legal, accountancy, and many management consultancy and marketing services. These services either supply products which are themselves primary sources of information and knowledge, or use their specialist knowledge to produce services which facilitate their clients own activities. Consequently, KIBS usually have other businesses as their main clients, though the public sector and sometimes voluntary organisations can be important customers, and to some extent households will feature as consumers of, for instance, legal and accountancy services.

A patent (/ˈpætənt/ or /ˈpeɪtənt/) is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, and may be a product or a process.

The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the invention. These claims must meet relevant patentability requirements, such as novelty and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others from making, using, selling, or distributing the patented invention without permission.

Under the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any invention, in all fields of technology, and the term of protection available should be a minimum of twenty years. Nevertheless, there are variations on what is patentable subject matter from country to country.

Primary incentives embodied in the patent system include incentives to invent in the first place; to disclose the invention once made; to invest the sums necessary to experiment, produce and market the invention; and to design around and improve upon earlier patents.

1. Patents provide incentives for economically efficient research and development (R&D). A study conducted annually by the IPTS shows that the 2,000 largest global companies invested more than 430 billion euros in 2008 in their R&D departments. If the investments can be considered as inputs of R&D, real products and patents are the outputs. Based on these groups, a project named Corporate Invention Board, had measured and analyzed the patent portfolios to produce an original picture of their technological profiles. Supporters of patents argue that without patent protection, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs.Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic ideas underlying traditional property rights.

2. In accordance with the original definition of the term "patent," patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they would prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's invention is not lost to humanity.

3. In many industries (especially those with high fixed costs and either low marginal costs or low reverse engineering costs — computer processors, and pharmaceuticals for example), once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (For example, the internal "rule of thumb" at several computer companies in the 1980s was that post-R&D costs were 7-to-1). Unless there is some way to prevent copies from competing at the marginal cost of production, companies don't invest in making the invention a product.

One effect of modern patent usage is that a small-time inventor can use the exclusive right status to become a licensor. This allows the inventor to accumulate capital from licensing the invention and may allow innovation to occur because he or she may choose not to manage a manufacturing buildup for the invention. Thus the inventor's time and energy can be spent on pure innovation, allowing others to concentrate on manufacturability.

Another effect of modern patent usage is to both enable and incentivize competitors to design around (or to "invent around" according to R S Praveen Raj) the patented invention. This may promote healthy competition among manufacturers, resulting in gradual improvements of the technology base. This may help augment national economies and confer better living standards to the citizens. The 1970 Indian Patent Act allowed the Indian pharmaceutical industry to develop local technological capabilities in this industry. This act transformed India from a bulk importer of pharmaceutical drugs to a leading exporter. The rapid evolution of Indian pharmaceutical industry since the mid-1970s highlights the fact that the design of the patent act was instrumental in building local capabilities even in a poor country like India.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.

The TRIPS agreement introduced intellectual property law into the international trading system for the first time and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries, concerned that developed countries were insisting on an overly narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration. The Doha declaration is a WTO statement that clarifies the scope of TRIPS, stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all."

Specifically, TRIPS contains requirements that nations' laws must meet for copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures. Protection and enforcement of all intellectual property rights shall meet the objectives to contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention (the patent specification), together with official forms and correspondence relating to the application. The term patent application is also used to refer to the process of applying for a patent, or to the patent specification itself (i.e. the content of the document filed with a view to initiating the process of applying for a patent).

In order to obtain the grant of a patent, a person, either legal or natural, must file an application at a patent office with jurisdiction to grant a patent in the geographic area over which coverage is required. This will often be a national patent office but could be a regional body, such as the European Patent Office. Once the patent specification complies with the laws of the office concerned, a patent may be granted for the invention described and claimed by the specification.

The process of "negotiating" or "arguing" with a patent office for the grant of a patent, and interaction with a patent office with regard to a patent after its grant, is known as patent prosecution. Patent prosecution is distinct from patent litigation which relates to legal proceedings for infringement of a patent after it is granted.

Patent prosecution describes the interaction between applicants and their representatives, and a patent office with regard to a patent, or an application for a patent. Broadly, patent prosecution can be split into pre-grant prosecution, which involves negotiation with a patent office for the grant of a patent, and post-grant prosecution, which involves issues such as post-grant amendment and opposition.

Patent prosecution is distinct from patent litigation, which describes legal action relating to the infringement of patents.

The rules and laws governing patent prosecution are often laid out in manuals released by the Patent Offices of various governments, such as the Manual of Patent Examining Procedure (MPEP) in the United States, or the Manual of Patent Office Practice (MOPOP) in Canada.

Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention. In many countries, a use is required to be commercial (or to have a commercial purpose) to constitute patent infringement.

The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder.

Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is filed in the United States, then anyone in the United States is prohibited from making, using, selling or importing the patented item, while people in other countries may be free to make the patented item in their country. The scope of protection may vary from country to country, because the patent is examined by the patent office in each country or region and may have some difference of patentability, so that a granted patent is difficult to enforce worldwide.

In particular, a license may be issued by authorities, to allow an activity that would otherwise be forbidden. It may require paying a fee and/or proving a capability. The requirement may also serve to keep the authorities informed on a type of activity, and to give them the opportunity to set conditions and limitations.

Licensing agreements vary depending on:

- they allow the export of licensed products, to completely or partially restrict it;

- the presence or absence of an obligation to the licensor during the term of the agreement grants the licensee (the licensee) the information about the new enhancements to the licensed technology;

- by transmission technology, it means license is granted independently or simultaneously with the conclusion of a contract for construction of the facility, supply of complete equipment and engineering services (individual or co-licensing agreements).

Person having the right to "know-how", can transfer this right under the contract to another person. In this case, his rights are terminated and there in the acquirer (transferee).

Contracts for the transfer of "know-how" different from licensing agreements that the owner of the technology or invention rejected by considerations of their patents, without giving at the same time from the sale of the technology itself. Lack of legal protection has identified specific treaties "know-how", which contains a clause of confidentiality of transmitted information and for damages in the event of a breach.

The assignment of the "know-how" there is also due to inheritance and the reorganization of legal entities.

According to the agreement for a license to "know-how" of one party (the licensor) shall be used to report information and give permission for their use, and the other party (the licensee) is obligated to keep confidential information, to pay compensation for the use, unless the contract provides otherwise. Licensor can only winner of the "know-how". Licensor shall give accurate information sufficient to implement the "know-how". You may use the "know-how" to the extent provided by the contract. The contract may contain other conditions provided by the agreement of each sides.

You may enter into a sub-license agreement on "know-how" with written permission of the licensor. When the licensee to the licensor is responsible for the acts committed by sublicense, unless the licensing agreement provides otherwise.

Contract for a license to "know-how" may be included in a patent license agreement.

The license agreement is valid for the period prescribed them. If the term of the contract is not specified, either party may at any time terminate the contract notice to the other party not later than six months.