描述
开 本: 16开纸 张: 胶版纸包 装: 平装-胶订是否套装: 否国际标准书号ISBN: 9787509392515
本书是北京外国语大学法学精品教材“普通法案例教学系列”的一本，是针对中国学生，经过北京外国语大学法学院十多年课堂教学经验的积累，吸取国外法学教育方法中的有益成分的基础上编写而成的。共分为十四章，包括：概论、新颖性、实用性、非显而易见性、可专利性主题、公开、权利要求、专利审查、授权后修改等专利前期确权工作的课题，以及侵权、救济、许可、国际申请、发展现状等后期维权工作的内容。
Table of Contents
Chapter Ⅰ GENERAL INTRODUCTION1
A. Brief Note on American Legal System1
B. Intellectual Property Law and Patents2
Bonito Boats, Inc. v. Thunder Craft Boats, Inc.2
C. Justification of Patent System7
D. Applicable Law 8
E. Forums and Jurisdiction10
Chapter Ⅱ NOVELTY11
A. Introduction11
B. Public Sale16
Pennock v. Dialogue16
C. Use in Public21
Egbert v. Lippmann21
D. Printed Publication24
In re Hall24
Chapter Ⅲ UTILITY29
A. Introduction29
Lewell v. Lewis29
B. Chemical Compound31
Brenner, Commissioner of Patents v. Manson31
In re Brana37
C. Immorality45
Juicy Whip, Inc. v. Orange Bang, Inc.45
Chapter Ⅳ NONOBVIOUSNESS51
A. Introduction51
Hotchkiss v. Greenwood52
B. Obviousness Test56
Graham v. John Deere Co. of Kansas City56
C. Motivation to Combine Prior Arts65
KSR International Co. v. Teleflex Inc.65
Chapter Ⅴ PATENTABLE SUBJECT MATTER71
A. Introduction71
Diamond v. Chakrabarty72
B. Computer Programs81
In The Matter Of Application By Fujitsu81
C. Business Methods86
In re Bilski86
Bilski v. Kappos100
D. Laws of Nature102
Mayo Collaborative Services v. Prometheus Laboratories, Inc.102
Chapter Ⅵ DISCLOSURE111
A. Introduction111
B. Enablement112
O’Reilly v. Morse112
C. Written Description118
Ariad Pharmaceuticals, Inc. v. Eli Lilly and Company118
D. Best Mode Requirement131
Chapter Ⅶ CLAIMS133
A. Introduction133
B. Claim Structure137
C. Types of Claim140
Abbott Laboratories v. Sandoz, Inc.143
D. Claiming Technique148
Ex Parte Fressola148
E. Claim Construction151
Markman v. Westview Instruments, Inc.152
Chapter Ⅷ PATENT PROSECUTION159
A. Introduction159
B. Preparing and Filing Patent Applications164
Kingsdown Medical Consultants Ltd. v. Hollister Inc.164
C. Examination168
D. Docketing169
Chapter Ⅸ POST-ISSUANCE CORRECTION171
A. Introduction171
B. Certificate of Correction171
C. Reissue172
Seattle Box Co. v. Indus. Crating & Packing Inc.174
D. Reexamination179
Third-Party Opposition of Patent Issuance180
Chapter Ⅹ PATENT INFRINGEMENT187
A. Introduction187
B. Literary Meaning of Claim Language190
Unique Concepts, Inc. v. Brown190
C. Indirect Infringement196
Deepsouth Packing Co. v. Laitram Corp.196
Microsoft Corporation v. AT&T Corp.201
D. Contributory Infringement & Patent Misuse210
Dawson Chemical Co. v. Rohm & Haas Co.210
E. Infringing Use217
Centillion Data Systems v. Qwest Communications International217
F. Doctrine of Equivalents and Its Limitations224
Corning Glass Works v. Sumitomo Electric U.S.A., Inc.224
Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd.230
Chapter Ⅺ DEFENSE TO PATENT INFRINGEMENT239
A. Introduction239
B. Noninfringement241
C. Invalidity241
D. Unenforceability242
A.C. Aukerman Company v. R.L. Chaides Construction Co.242
Hazel-Atlas Glass Co. v. Hartford-Empire Co.252
Therasense, Inc. v. Becton, Dickinson & Co.256
E. Patent Misuse and Antitrust Counterclaims261
F. Other Defenses261
Chapter Ⅻ REMEDIES263
A. Introduction263
B. Compensatory Damages263
C. Injunctions264
City of Milwaukee v. Activated Sludge, Inc.264
eBay Inc. v. MercExchange, L.L.C.266
D. Punitive Damages and Attorney Fee270
In re Seagate Technology, LLC270
Chapter ⅫⅠ PATENT LICENSING275
A. Introduction275
B. Litigation and Settlement276
C. Compulsory Licensing277
D. Licensor Repudiation and Assignor Estoppel278
E. Antitrust Violations279
U.S. Philips Corp. v. International Trade Commission279
F.T.C. v. Activis, Inc.294
Chapter ⅩⅣ CURRENT ISSUES AND DEVELOPMENT307
A. Introduction307
B. Patent Trolling307
First-of-Its-Kind Settlement between NY and Patent Troll
Establishes Guidelines to Prevent Deceptive and Exploitative
Patent Assertion Conduct307
C. Parallel Import, Grey Market, and Exhaustion Doctrines (Domestic &
International Exhaustion)311
Adams v. Burke311
General Talking Pictures Corp. v. Western Electronics Co.316
D. Unfair Trade Practices (Patent) Investigation at USITC320
Bonito Boats, Inc. v. Thunder Craft Boats, Inc.
United States Supreme court, 1989
489 U.S. 141
O’CONNOR, JUSTICE.
Article I, § 8, cl. 8 of the Constitution gives Congress the power “To
promote the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.” The Patent Clause itself reflects a balance between the need to
encourage innovation and the avoidance of monopolies which stifle competition
without any concomitant advance in the “Progress of Science and useful Arts.” As
we have noted in the past, the Clause contains both a grant of power and certain
limitations upon the exercise of that. Congress may not create patent monopolies
of unlimited duration, nor may it “authorize the issuance of patents whose
effects are to remove existent knowledge from the public domain, or to restrict
free access to materials already available.” Graham v. John Deere Co.
(1966).
From their inception, the federal patent laws have embodied a careful
balance between the need to promote innovation and the recognition that
imitation and refinement through imitation are both necessary to invention
itself and the very lifeblood of a competitive economy. Soon after the adoption
of the Constitution, the First Congress enacted the Patent Act of 1790, which
allowed the grant of a limited monopoly of 14 years to any applicant that “hath
… invented or discovered any useful art, manufacture, … or device, or any
improvement therein not before known or used.” In addition to novelty, the 1790
Act required that the invention be “sufficiently useful and important” to merit
the 14-year right of exclusion. Section 2 of the Act required that the patentee
deposit with the Secretary of State, a specification and if possible a model of
the new invention, “which specification shall be so particular, and said models
so exact, as not only to distinguish the invention or discovery from other
things before known and used, but also to enable a workman or other person
skilled in the art or manufacture … to make, construct, or use the same, to the
end that the public may have the full benefit thereof, after the expiration of
the patent term.”
The first Patent Act established an agency known by self-designation as the
“Commissioners for the promotion of Useful Arts,” composed of the Secretary of
State, the Secretary of the Department of War, and the Attorney General, any two
of whom could grant a patent. Thomas Jefferson was the first Secretary of State,
and the driving force behind early federal patent policy. For Jefferson, a
central tenet of the patent system in a free market economy was that “a machine
of which we were possessed, might be applied by every man to any use of which it
is susceptible.” 13 Writings of Thomas Jefferson, 335 (Memorial ed. 1904). He
viewed a grant of patent rights in an idea already disclosed to the public as
akin to an ex post facto law, “obstructing others in the use of what they
possessed before.” Jefferson also played a large role in the drafting of our
Nation’s second Patent Act, which became law in 1793. The Patent Act of 1793
carried over the requirement that the subject of a patent application be “not
known or used before the application.” A defense to an infringement action was
created where “the thing, thus secured by patent, was not originally discovered
by the patentee, but had been in use, or had been described in some public work
anterior to the supposed discovery of the patentee.” Thus, from the outset,
federal patent law has been about the difficult business “of drawing a line
between the things which are worth to the public the embarrassment of an
exclusive patent, and those which are not.” 13 Writings of Thomas Jefferson, at
335.
Today’s patent statute is remarkably similar to the law as known to
Jefferson in 1793. Protection is offered to “[w]hoever invents or discovers any
new and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof.” 35 U.S.C. § 101. Since 1842, Congress has
also made protection available for “any new, original and ornamental design for
an article of manufacture.” 35 U.S.C. § 171. To qualify for protection, a design
must present an aesthetically pleasing appearance that is not dictated by
function alone, and must satisfy the other criteria of patentability. The
novelty requirement of patentability is presently expressed in 35 U.S.C. §§
102(a) and (b), which provide:
A person shall be entitled to a patent unless –
(a) 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, or
(b) 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 application for patent in the United States ….
Section 102(a) and (b) operated in tandem to exclude from consideration for
patent protection knowledge that is already available to the public. They
express a congressional determination that the creation of a monopoly in such
information would not only serve no socially useful purpose, but would in fact
injure the public by removing existing knowledge from public use. From the
Patent Act of 1790 to the present day, the public sale of an unpatented article
has acted as a complete bar to federal protection of the idea embodied in the
article thus placed in public commerce.
In the case of Pennock v. Dialogue, 2 Pet. 1, 7L.Ed. 327 (1829), Justice
Story applied these principles under the patent law of 1800. The patentee had
developed a new technique for the manufacture of rubber hose for the conveyance
of air and fluids. The invention was reduced to practice in 1811, but letters
patent were not sought and granted until 1818. In the interval, the patentee had
licensed a third party to market the hose, and over 13,000 feet of the new
product had been sold in the city of Philadelphia alone. The Court concluded
that the patent was invalid due to the prior public sale, indicating that, “if
[an inventor] suffers the thing he invented to go into public use, or to be
publicly sold for use” “[h]is voluntary act or acquiescence in the public sale
and use is an abandonment of his right.” The Court noted that under the common
law of England, letter patent were unavailable for the protection of articles in
public commerce at the time of the application, and that this same doctrine was
immediately embodied in the first patent laws passed in this country.
As the holding of Pennock makes clear, the federal patent scheme creates a
limited opportunity to obtain a property right in an idea. Once an inventor has
decided to lift the veil of secrecy from his work, he must choose the protection
of a federal patent or the dedication of his idea to the public at large. As
Judge Learned Hand once put it: “[I]t is a condition upon the inventor’s right
to a patent that he shall not exploit his discovery competitively after it is
ready for patenting; he must content himself with either secrecy or legal
monopoly.” Metalizing Engineering Co. v. Kenyon Bearing & Auto Parts Co.,
153 F.2d 516 (CA2), cert. denied, 328 U.S. 840 (1946).
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