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Topic: Product patents (Read 2793 times) |
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rahulvartak
Newbie
Posts: 27
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Re: Product patents
« Reply #15 on: May 11th, 2004, 8:50pm » |
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Dear Arthur and Cicy,
Thanks for your opinions.
I have really dicussed this issue in details and I have realised that the Universal opinion is that the selection patent is valid.
But somehow I feel it goes against the very spirit of patenting. I had the feeling that the patents are granted so that the inventor does not lose his invention and the public is also benifitted with the information.
If a company has been granted exclusivity for 20 years, it should not become greedy and keep on patenting on the same lines and increase the life of the commercial product patent, once it has already covered the product generically in the first patent.
Or the other way round , the original patent should not have so many claims that it covers everthing generically and very few claims are specific.Rather the generic claim should not be included in the patent specifications.This is a personal view in light of the discusion so far.
Please opine.
Rahul Vartak.
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Gail Silver
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My question is would you infringe a genus patent if you manufactured a selection. For instance if the genus patent disclosed a compond, but did not mention the hydration state, and no discussion of hydration state was made in the specification. If the genus patent had examples, but they all led to only one hydration state, e.g. tridydrate. Could you manufacture the anhydrous or monohydrate form w/o infringing?
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sans
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Gail Silver,
You would infringe under the doctrine of equivalents, if the patent has an independent claim for the compound, except under certain circumstances as given below
1) The claim for the compound in the patent is a product-by-process claim and you manufacture the hydrate/anhydrous form by a totally different process
2) You are able to prove that your hydrate/anhydrous form is not a mere polymorphic form functionally equivalent to the compound in the patent, that you do not follow the process in the patent at any stage during your manufacture and that you do not manufacture your hydrate starting from the compound in the patent.
3) The specific hydrates you manufacture have been removed from the claims during the prosecution of the patent in question
There could be several similar situations where you could argue against infringement. Unless the specifics of the case are provided, it would be difficult to make out the distinction, from an infringement point of view, between the product covered in the patent claim and the compound you propose to manufacture.
sans
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