Unit 3 | Patents Critical Thinking Questions
Please answer the questions on the attached document below by following the guidelines.
3.1 An invention must be a process or product and not excluded because it is a law of nature, physical phenomenon, or abstract idea. Which of the following could be patented?
· Discovery of oil under Boca Raton, FL.
· Brad discovers a bacterium that eats rust. He wants to patent his finding as a natural means to combat rust.
· Ethan, a gerontologist, created a human kidney that would extend the lifespan of the human by intervening and disassembling diseases.
3.2 An invention is described in an article in a new and not well-known pharmaceutical journal. They printed 500 of the journals but never distributed them. Ronald invents an identical process. Can Ronald patent his invention even though it was described in the not well-known pharmaceutical journal? What if the article is distributed after Ronald’s date of invention? Before his date of application?
3.3 Howard patents a new type of satellite and has to sue Sheldon for building an identical satellite. Sheldon argues that the patent is invalid for obviousness. He says the claimed invention is a combination of elements that already appear in references to the relevant prior art. Nothing in the prior art suggests combining the references. But there is a high level of skill in the relevant art of satellite engineering. Sheldon argues that such a high skill level means that one skilled in the art would find the combinations obvious. Should the court accept this argument?
3.4 Amy comes up with a new idea for a baby blanket. Over several years she gives her baby blankets as gifts to friends in her church and her extended family. Several years later, Amy files a patent application on her baby blanket. Should her patent application be accepted?
3.5 The standard used to determine the right to file according to the 1952 Patent Act used the first to invent. How does the 2011 America Invents Act change this standard for inventions filed after September 16, 2013?
3.6 Joey files a patent application for a drug that will combat dementia. The method is promising, but at the time of filing the application, Joey cannot show the efficacy of the drug by using any type of lab tests. The inventor does make a good argument that the drug is highly likely to work. Does Joey meet the utility requirement?
3.7 A patented heart medication selling for $125 per pill is protected by a patent on Monday. On Tuesday, the patent expires and those with a prescription for that drug may be able to choose instead, a generic, which is that drug without the trademarked name. That generic drug may now cost $4. What does that suggest about the pharmaceutical industry?
3.8 Would a cross-licensing practice have an adverse impact on smaller companies who may not have large numbers of patents that are sufficiently attractive to use as leverage in negotiating a cross-licensing agreement?
3.9 Neko invented a slot that delivered his mail directly to his front door from his mailbox on the street. It had some problems, but he was happy with it. He applied for a patent and it was granted. He does nothing to sell or mass produce his slot. Many years later, Aaron happens to see the patent on the USPTO website. He thinks it’s a great idea and so he begins mass producing the slot and sells it online. It’s a great success. Neko sees one on the television and realizes it’s his idea. He decides to sue Aaron for infringement. Can Aaron raise the defense of laches against Neko?
3.10 One of the most significant public policy issues related to the patent system is the departure from our free-market economic system which values competition as a driving force. Yet with the patent system, we grant a twenty-year monopoly for utility and plant patents and a fifteen-year monopoly for design patents. The grant of a monopoly is sometimes justified by saying, “We, the people” get full disclosure in return for that monopoly. Certainly, in the 1800s and much of the 1900s, that would have been a fair trade-off. But the reality today is that there are very few things that cannot be reverse-engineered. Also relevant to this issue, is the fact that technology is advancing so rapidly that a 20-year monopoly for an iPhone could mean 10 generations of that product. Is it still a fair trade-off? Is the 20-year monopoly necessary or should it be less?
Examine both sides of the issue.
It is important to think systematically about these questions. Do not just evaluate on the basis od how 1 person would be affected, but think how the entire system (whether it’s the economic system, the political system, or the innovative system) that will be affected.
Rubric | For each question use the IRAC Protocol:
Critical Thinking Questions Rubric
Identify the relevant legal issue.
Cite the relevant rule, statute, case law, or legal theory that defines the issue. Also, note the relevant public policy.
Analyze the facts and compare them with the relevant rules or definitions and any public policy
Form a logical conclusion about whether the issue is being handled in such a way as to support the public policy, or if there are problems. Propose a solution if there are problems.
View this related post: Taxation Law.
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