Hi, UJIHARA Kazuya!
Some of the answers to your question about availability of patent
downloading software in the PIUG group are not quite exact, as far as
legal effects of the WO-publication are concerned.
From: "Alan Engel" <aengel@paterra.com>
> [...] WO 01/01234 is an application and nothing more.
> It provides no rights or protection against infringement
> until it is examined and granted, [...]
Partly right he is. An /appliction/ provides no rights concerning
infringement. But this application has been /published/!
From: <simmons.es@pg.com>
> Only then, when a patent is granted, can you be sued for
> infringing the patent
This is right, but lacks one important information: Patents are granted
/backward/ from the application date - and patents nationalized from a
PCT application are granted backward from the PCT application date.
The publication should at least be considered sort of an alarm bell -
and a really loud one - until you are /sure/ either that it would never
(and in none of the designed states!) be granted or that you would not
infringe!
> and you have to be sued in each country
> where acts of infringement take place.
Sorry, that's rubbish! - You /may/ be sued in each country where
infringement takes place /and/ a patent is granted.
From: "Roy Zimmermann" <roy.zimmermann@medtronic.com>
> you cannot infringe a published application.
That's right. You may indeed /use/ a published technique. But the
applicant may demand a "reasonable compensation" for any use after
publication. (§ 33 of the german patent law - and I would think, that
similar regulation might apply for other national patent law systems,
too.) A "reasonable compensation" for example might be calculated by
license analogy.
Following Art. 29 PCT, the effects of a WO-publication are "the same as
those which the national law of the designated State provides for the
compulsory national publication of unexamined national applications as
such" (see http://www.wipo.org/pct/en/texts/index.htm).
The applicant is granted this right irrespective of novelty of the
technique - as novelty will be looked at during the examination. Only
after rejection of the application, you might demand for a
recompensation.
You should discuss your case with a patent attorney in your
country!
Yours, Frank
This archive was generated by hypermail 2b30 : Fri Feb 14 2003 - 11:56:38 GMT