The Question for Wide Circle: How Long You Should Endure Yet Patent Systems Without the Legal Definitions of Invention and its Derivation - Patentable One?

Abstract

The patent systems lack logic. These postulates something phenomenon called ‘invention’, but in fact no satisfactory legal definition of ‘invention’ has ever appeared, and the courts, in their search for guiding rules, have produced an almost incredible tangle of conflicting doctrines and the needful decisions are often made by the help of case law. Aaron X. Fellmeth, professor of Law (USA, 2012) has accentuated this situation especially pointedly: “After 220 years of progressively developed patent statutes and jurisprudence, the concept of invention, so central and fundamental to patent law, has become one of the most misunderstood”. Honestly, majority patent systems, including large ones as USA, Germany, United Kingdom, etc. and international agreements and conventions - TRIPS, PCT, EPC have not been able to this day to define the basic concepts of patent law - ‘invention’ and its derivation - ‘patentable one’. It should be also patent practitioners concern who are preparing for Unitary Patent and Unified Patent Court nowadays. In this connection professor of law Lemley, Mark A. (USA, 2012) has mentioned thought-provokingly in his scholarly paper ‘Point of Novelty’: “We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new. It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention are in fact new. A patented invention is legally defined by its claims - written definitions of the invention. And those written definitions virtually never call out what it is that is new about the patentee’s invention... As that court (United States Court of Appeals - T.T) has put it, there is no legally recognizable . . . ‘gist,’ or ‘heart’ of the invention”. In this paper I dare to point out and once more verify (in addition to my earlier papers) that there is still exists legally recognizable ‘gist’ or ‘heart’ of the invention, namely the novel inventive idea for solving concrete (old or new) technical problem. Therefore in the future we must in addition to the technical features meet in the claim of a patented invention - written definition of the invention - the explicitly formulated concrete technical problem and for solving it n o v e l inventive idea what the patentee actually created, i.e. all in all in fact a new thing (in the case in question - information or knowledge item as the patentable invention) that did not exist before. And as the result of it the updated claim construction will correspond to the legal definition of patentable invention and the claim of concrete patentable invention would successfully and concurrently replace traditional summary of essence of the invention in the patent application as well in the title page of patent document. In order to comprehend the latter it must be first make clear that Patent Law as property one does not create things. Patent Law only provides a structural framework and a set of rules that specify and control the legal relationships between persons and intangible things. Thus inventive idea exists even in the absence of all law. And it can be considered as axiom, that due to the nature of such idea, it cannot be possessed if others know it. In any case the inventive idea, as legally recognizable ‘gist’ or ‘heart’ of the invention must be novel before the invention can be considered as property. It does not also forget that the most general meaning of the notion ‘invention’ in the present context is ‘the act of inventing’.