Conditions of Patent and its applicability in Protection
Keywords:
Patent, Novelty, Inventive Step, Industrial ProcessAbstract
This article intends to provide the issues of patent and its applicability in Tanzania when it comes to own the invention. The author categorised this article into five aspects of which, each aspect provide its own information for the same purpose. For instance, part one (1) of this article provide for the brief introduction in order to apprehend general idea of the legal instruments governing patent worldwide; at part two (2) the author provide the definition and contents of patents serves for the proper manner as to which the patent should be taken or considered is; the third (3) part provide for the worldwide conditions which should be considered as well once a person wants to protect and register its innovation; the fourth (4) part stipulate the applicability and practice of patent protection in order to see to what extent does the patent is safe and adequate under the legal system. And the last party, chapter five (5) provides for the summary of the previous parts, and conclusion for the entire article.
References
1. The Paris Convention for the Protection of Industrial Property, 1883
2. Summary of the Paris Convention for the Protection of Industrial Property,1883
3. Patent Cooperation Treaty, 1970
4. Art. 1(1) of the Patent Cooperation Treaty, 1970
5. Patent Law Treaty, 1982
6. The Harare Protocol on Patents and Industrial Design, 1982
7. See also Kihwelo PF and Nditi NNN Intellectual Property Law Manual , the Open University of Tanzania, 1 st Edition, 2008
8. Patent Act, 1987
9. The Trade Related Aspects of Intellectual Property Agreements.
10. Section 7 of the Patent Act, 1987
11. Section 7(1) of the Patent Act, 1987
12. A patent is an official legal right of the inventor to make or sell his or her invention for a particular period of time.
13. See also Blackeway JR at all the patent infringement litigation handbook: avoidance & management (2010:9).
14. Kihwelo and Nditi (2008:26); see also section 2 of the UK patent Act, 1977
15. Durhan AL Patent Law Essentials: A Concise Guide (204:14).
16. See also Durhan (2004:14).
17. Section 8 of the Patent Act
18. Section 9 of the Patent Act
19. similarly, section 1(1) of the UK Patent Act of 1977 provide that A patent may be granted only for an invention in respect of which the following conditi ons are satisfied, and that is to say a) The invention is new, b) It involves an inventive step, c) It is capable of industrial application, d) ………………….
20. Art.27(1) of the Trade Related Aspects of Intellectual Property Agreements, Annex C1
21. Art. 27(1) of the TRIPs
22. Art. 2 of the Patent Cooperation Treaty of 1970 (Modified 2001).
23. Kihwelo and Nditi (2008:39)
24. Inhale Therapeutic System v. Quadrant 1 (2001) IP&T 1229
25. Art 10 of the patent act, 1987
26. See also the case of Windsurfing International Inc. v Tabur Marine (GB) Ltd [1985] RPC 59.
27. Article 11 of the patent Act, 1987
28. See also section 6(1) of the UK Patent Act, 1977; Kihwelo and Nditi (2008:40) further provide that to prove that the invention is not novelty because of contemplation in the art, two points are to be satisfied. These are the application should disclose the invention in a claim albeit the law accommodates a regulated disclosure. The requiring is called disclosure. The second is that an ordinary skilled man should be able to perform the disclosed invention if he attempts to do so by using the disclosed matter and common general knowledge. This requirement is called enablement.
29. Guru M and Rao MB Patent Law in India (2010:8); authors further state that A patent was noted as a name of the document containing a command from a sovereign and authenticated by a present of a wax with the expression of great seal of the realm. The system provide s for grant of letters of patent for the sole working or making a new manufacture to the first inventor for manufacture.
30. Article 3(1) of the PCT
31. See also Durhan (2004:14)
32. Article 3(2) of the PCT JIPRL (2018) 21-25 © Law Journals 2018. All Rights Reserved Page 25
33. Hartranft v. wigmann 121 U.S. 609,615 (1887)
34. Diamond, Commissioner of patents and trademark v. Chakrabarty 447 US 303, 206 USPQ 193
35. With similar perception, Kihwelo and Ndity (2008:38) emphasis that Novelty has references to newness and the invention is new if it is not anticipated by prior art. That means it must have not existed in the prior art of if existed there must be a difference between the prior art.
36. Hill v Evans (1862) 31 LJ (NS) 457
37. Sarkaria Jin Bishwanath Prasad Radhey Shyam V Hindustan Metal Industries (1979) 2SCC 511
38. Kihwelo PF, Nditi NNN. Intellectual Property Law Manual the Open University of Tanzania, 1st Edition (2008).
39. Guru M, Rao MB, Patent Law in India (2010).
40. Blackeway JR , et al. The Patent Infringement Litigation Handbook: Avoidance & Management (2010).
41. Durhan AL, Patent Law Essentials: A Concise Guide, 2nd Edition (2004).
42. Patent Act, 1987.
43. Patent Law Treaty, 1982.
44. The Harare Protocol on Patents and Industrial Design, 1982.
45. The Paris Convention for the Protection of Industrial Property, 1883.
46. The Patent Cooperation Treaty, 1970.
47. The Trade Related Aspects of Intellectual Property Agreements.
48. UK Patent Act of 1977.
49. Diamond, Commissioner of Patents and Trademark v. Chakraba rty 447 US 303, 206 USPQ 1903.
50. Hartranft v. Wigmann 121 U.S. 609,615 (1887).
51. Inhale Therapeutic System v. Quadrant (2001) IP&T 1229.
52. Hill v Evans (1862) 31 LJ (NS) 457.
53. Sarkaria Jin Bishwanath Prasad Radhey Shyam V Hindustan Metal Industries (1979) 2SCC 511. Cite this Article Bullu Saphy L. Applicability in Protection . Journal of Intellectual Property Rights Law . 2018; 1(1): 21–25p.
