Patent Acquisition Research Articles

Analysis of Patent Acquisition Competition between Small Company and Big Company: A Game Theoretical Real Options Approach

Analysis of Patent Acquisition Competition between Small Company and Big Company: A Game Theoretical Real Options Approach

Cooperative Patent Prosecution: Viewing Patents Through a Pragmatics Lens

Conversation is easy. We communicate with other people every day without giving conscious thought as to how we understand the information exchanged in the course of the conversation. Patents, by contrast, are hard. Understanding information conveyed by a patent is difficult, despite deliberate and conscious efforts to shape or improve the process. Scholars have not yet seen the connection between the two concepts. We have not viewed patents as conversation – but perhaps we should. Viewing patents as conversations allows us to tap into a rich body of scholarship from the pragmatics branch of linguistics – the study of language and how we understand it – and turn traditional wisdom about interpretation of patents on its head. Understanding patents can be as easy as having a conversation. What needs to change is not the interpretation process, but rather the conversation itself. The key difference between everyday conversation and patents is the lack of cooperation in patent prosecution, the conversations that give rise to patents. If we can create a greater air of cooperation in the patent acquisition process, then we can rely on linguistics to help understand what is being conveyed. We can make interpretation of patents much more like understanding everyday conversation – easy.

Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights

Genetic engineering is one of the most advanced technologies in the world and can bring vast profits to developers by patenting resultant achievements. But genetic engineering must be based on original genetic materials. For obtaining such materials, developers travel around the world, especially to genetically rich areas in developing countries, to prospect for valuable genetic resources and bring back for research and patent derivate products. However a lot of disputes have arisen from such patents, such as the Enola patent dispute on Mexican traditional crop mayocoba bean and the patent dispute on sacred plant Ayahuasca between people and one U.S. Company. Indigenous people, who live in the origin areas of genetic resources for a long history, have established traditional and cultural genuine relation with some living species. These disputes revealed that some genetic engineering exploitation and patents based on certain species may be severely offensive against indigenous people’s spiritual, religious, or cultural traditions. Although genetic engineering achievements’ patentability has been argued for a long time, the TRIPs Agreement requirement and the world’s legislation trend, either in developed countries such as the U.S., European Union or in developing countries such as China, have indicated that genetic engineering products and processes are legitimately patentable. But some loophole exists in the patent acquisition procedure of current legislation, which allows such offensive patents to be granted. To prevent such offensive patents, one prior consents solution is proposed in this article, which requires genetic engineering developers to obtain prior consents from origin countries of genetic resources before they exploit these resources and patent derivate achievements. This solution is based on the Convention on Biological Diversity, which affirmed country’s sovereignty over their genetic resources and allowed countries to regulate and manage genetic resources in their territory. The Convention on Biological Diversity does not conflict with IPR legislation, in particular the TRIPs Agreement and the obligations under both treaties should be respected. The implementation of this proposed solution is based on the establishment of national genetic resources authority, which generally manages its country’s genetic resources and works as indigenous people’s representative with the authorization of state government. This solution should be implemented in three levels: domestically, transnationally and globally. Therefore, offensive genetic engineering patents could be prevented both by such authority’s examination and granting prior consents before developers’ access to genetic resources and by national patent administration’s examination on prior consents proof from origin country’s authority before granting patents.

Intellectual Property Protection for Plant Innovation: Unresolved Issues After J.E.M. v. Pioneer

In December 2001, the U.S. Supreme Court confirmed that plants are eligible subject matter for protection under the utility patent regime, notwithstanding the existence of limited forms of intellectual property protection for plants under the Plant Patent Act (PPA) and the Plant Variety Protection Act (PVPA). As fundamental as the J.E.M. decision may be, the Supreme Court confronted only one relatively narrow issue of patent acquisition in J.E.M. It will now fall to the lower courts to work out how numerous other issues of patent law doctrine apply to plants, and to Congress to consider broader policy issues concerning the relationship among IP regimes for plants. In this article, we analyze the J.E.M. decision, identify issues that J.E.M. leaves unresolved, and explain how those issues have begun to manifest themselves in recent plant IP disputes. The J.E.M. case concerned an issue of patent acquisition, and so the Court had no occasion to comment on issues of patent scope and enforcement of patents on plant-related innovation. One such issue is whether patent infringement can occur as a consequence of pollen drift. In this case, we conclude that courts (and legislatures) would be well-advised to not craft a special infringement regime for patented plants. Seed saving by farmers raises issues that are analytically similar to those surrounding experimental use in patent law. Whereas the utility patent statute includes no express exemption from infringement for patented seed that a farmer saves and re-uses, the PVPA does include a narrow saved-seed exemption. Sellers can limit the scope of an implied license by employing express license restrictions as a condition on the sale of the patented item. Whether these agreements can be enforced has recently been the subject of litigation. Major seed producers typically include express license restrictions on seed bags (called bag tag or licenses), when purchasing seed. In a recent decision, the Court of Appeals for the Federal Circuit upheld Monsanto's Roundup Ready technology agreement against a challenge mounted by a Mississippi farmer, Homan McFarling. The McFarling case and others like it are likely to spur state legislatures into passing legislation that will seek to regulate contracting practices in seed producer-grower transactions. Within the past year, seed-contract legislation has been proposed in numerous states in the Farm Belt. Some legislative proposals purport to outlaw contract provisions that prohibit seed saving. Some prohibit contract provisions that specify where the grower will be subject to suit for patent infringement. Proposals of this type may well prove controversial. Although states have authority to regulate contracts (including IP contracts) affecting their citizens, states lack authority to enact regulations that conflict with federal IP regime. Courts may well be called upon to draw the line in future cases involving seed-wrap license agreements that arguably conflict with state regulations. Turning away from patent law doctrine towards broader policy concerns, one major policy question after J.E.M. is whether there remains a meaningful long-term role for plant variety protection under the PVPA. PVPA protection is cheaper to obtain than is utility patent protection, and may facilitate branding. In addition, PVPA protection may be superior to trade secret protection in that trade secret protection does not preclude reverse engineering. However, we expect that utility patent protection will quickly emerge as the dominant form of IP protection for the domestic seed industry. Whether this arrangement is optimal will be an important future question for IP policymakers.

Organizational behavior in the R&D process based on patent analysis:: Strategic R&D management in a Japanese electronics firm

In the previous study [Tsuji, Org. Sci. 33 (2000) 62], the author showed that Canon's patent acquisition strategy effectively promotes their research and development (R&D). In the present study, the author investigated Canon's R&D process from the viewpoint of organizational behavior, paying particular attention to researchers' behavioral patterns, the significance of their patent acquisition strategy, and the role of the Patent Section. Patent application data reflecting performance of researchers in R&D activity relating to inkjet printers were analyzed. The results show that: first, Canon's R&D practice is mainly carried out by teams of researchers; second, each team usually focuses its research effort on a single specified element of technology or device; finally, at times, several teams combine to form larger groups, corresponding to certain stages of product development. Such flexible team behavior exemplifies a new type of unification–regulation system that effectively promotes the R&D process. The author also discusses the useful method of selecting key patents from medley patent gathering for organizational studies.

J.L. Baird: success and failure

From about 1923 until his death in 1946, J.L. Baird devoted his energies to the advancement of various aspects of television engineering. He produced 178 patents in this field, and was the first person anywhere to demonstrate television, albeit in a rudimentary form. He endeavoured to anticipate many likely developments of television, and was the first inventor to succeed in establishing the feasibility of an all-electronic high-definition colour television receiver using a single cathode-ray tube. Notwithstanding his efforts, Baird suffered much criticism during his life, and his work is still subject to considerable controversy. Furthermore, none of the companies which bore Baird's name now exist. On the other hand, Marconi was very successful. There are several points of similarity between the early work and aspirations of Baird and Marconi, and these are brought out in the paper. In addition, the paper examines the various factors which had a bearing on Baird's fortunes and compares his attitudes to business advancement, patent holding and patent acquisition, the employment of professional engineers and consultants, and new developments, inter alia with those of Marconi. It is concluded that, for the progress of the various Baird companies, too much reliance was placed on the ideas and patents of one person, whereas the well being of the Marconi companies depended on the ideas and patents of many persons: as a consequence, these companies prospered.