Biomedical Engineering Reference
In-Depth Information
of expression [6]. Since facts and ideas are not copyrightable, the results and
underlying data reported in an article are facts that are not subject to copy-
right. Similarly, the insight or idea leading to an experiment is also not subject
to copyright. In the case of journal articles, the copyright applies to the author's
creative expression, such as the choice of text to describe materials and
methods, an experiment, or its result. Tables, fi gures, charts, or other accompa-
nying material are copyrightable only if some minimally creative decisions
were required in their design.
Once the copyright vests in the author, he or she can authorize others to
use the work in one of four ways: (1) assign the entire copyright, (2) grant an
exclusive license, (3) grant a nonexclusive license, or (4) dedicate the copyright
to the public domain. An author must sign a written document to effectively
assign the copyright or grant an exclusive license. In contrast, a nonexclusive
license or permission can be granted quite casually. A verbal okay or even
conduct, such as posting a work on a publicly accessible Web server, can be
deemed to be the grant of a nonexclusive license [7].
9.2.2
Patent
The patent is a totally different property right from copyright. A patent is a
set of exclusive rights granted to a person who “invents or discovers any new
and useful process, machine, article of manufacture, or composition of matter,
or any new and useful improvement thereof” (http://www.uspto.gov/web/
offi ces/pac/doc/general/what.htm), but there is a catch. The inventor has to
apply for the patent; it is not automatically granted, and the rights are granted
as a trade, in exchange for the inventor publicly describing the invention in
enough detail that an ordinary expert in the fi eld could make use of it [8].
Like copyrights, patents are not permanent. They expire after a much
shorter period of time than copyrights, 20 years in the United States. Unlike
copyrights, they are nationally based, which means that a patent granted in the
United States is of no value in China as the inventor must fi le patent applica-
tions in multiple national jurisdictions to exercise the exclusive rights.
Patents are subject to statutory requirements as well. A patented invention
must be novel. One cannot repatent an invention already patented or one
that was disclosed publicly before by another party. A patented invention
must be “nonobvious” (this clause, predictably, creates a lot of debate in the
life sciences). A patented invention must also have some sort of use or appli-
cation. If an inventor can satisfy these three requirements, then he or she
receives the right to prevent anyone else from making, using, or selling the
invention [8] .
This is important in the life sciences, because the exclusionary nature that
the patent right carries for the inventor is innately different from the positive
rights copyright gives their creators. A scientist may acquire a patent which is
the right to exclude someone from some activity but not actually possess the
rights to practice the patent because of other preexisting patents that “block”
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