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passive breach of contract A failure to perform the requirements of a contract.Under Louisiana law up to 1984, passive breach of contract was contrasted with active breach of contract, which was negligence in performing a contractual obligation. While an active breach of contract could give rise to claims in contract and in tort, a passive breach of contract usu. did not give rise to a tort claim. Cf. active breach of contract.

passive breach of contract See BREACH OF CONTRACT.

passive concealment See CONCEALMENT.

passive concealment The act of maintaining silence when one has a duty to speak.

passive conduct Behavior that does not involve exerting will on the external world. Cf. active conduct.

passive conduct See CONDUCT.

passive debt A debt that, by agreement between the debtor and creditor, is interest-free.

passive debt See DEBT.

passive duty See negative duty.

passive duty See negative duty under DUTY (1).

passive euthanasia The act of allowing a terminally ill person to die by either Withholding or withdrawing life-sustaining support such as a respirator or feeding tube.

passive euthanasia See EUTHANASIA.

passive income See INCOME.

passive income Income derived from a business, rental, or other income-producing activity that the earner does not directly participate in or has no immediate control over. See PASSIVE ACTIVITY. Cf. portfolio income.

passive investment income Investment income that does not involve or require active participation, such as gross receipts from royalties, rental income, dividends, interest, annuities, and gains from the sale or exchange of securities. IRC (26 USCA) § 1362(d).

passive investment income See INCOME.

passive loss See LOSS.

passive mercy killing See DYATHANASIA.

passive negligence See NEGLIGENCE.

passive trust See TRUST.

pass-on defense An antitrust defense that a member of the distributive chain who was overcharged or undercharged passed on the price adjustment to reflect the charge and thereby suffered no damage. Also termed passing on.

pass-on defense See DEFENSE (1).

passport 1. A formal document certifying a person identity and citizenship so that the person may travel to and from a foreign country. [Cases: Aliens, Immigration, and Citizenship (;=>674.j 2. SEA LETTER. 3. SAFE CONDUCT. A passport is the universally accepted evidence of a person identity and nationality. It does not give its bearer the right to travel in another country, but it does request that other governments permit him to travel in their territories or within their jurisdictions. It also entitles him to the protection and assistance of his own diplomatic and consular officers abroad. Burdick H. Brittin, International Law for Seagoing Officers 183 (4th ed. 1981).

Passport Office See BUREAU OF CONSULAR AFFAIRS.

pass-through adj. (Of a seller or lessor costs) chargeable to the buyer or lessee. Also termed pass-along.

pass-through taxation The taxation of an entitys owners for the entitys income without taxing the entity itself. Partnerships and S corporations are taxed under this method. So are limited liability companies and limited liability partnerships unless they elect to be taxed as corporations by "checking the box" on their income tax returns. the election is made on Form 8832 (Entity Classification Election). See Treas. Reg. § 301.7701-(3)(b)(1). - Also termed conduit taxation. 2. TAXATION OF COSTS.

pass-through security See SECURITY.

pass-through security A security that passes through payments from debtors to investors. Pass-through securities are usu. assembled and sold in packages to investors by private lenders who deduct a service fee before passing the principal and interest payments through to the investors.

pass-through taxation See TAXATION.

past consideration See CONSIDERATION (1).

past consideration An act done or a promise given by a promisee before making a promise sought to be enforced. Past consideration is not consideration for the new promise because it has not been given in exchange for this promise (although exceptions exist for new promises to pay debts barred by limitations or debts discharged in bankruptcy). See PREEXISTING-DUTY RULE. Cf. future consideration. "A past consideration is, in effect, no consideration at all; that is to say, it confers no benefit on the promisor, and involves no detriment to the promisee in respect of his promise. It is some act or forbearance in time past bywhich a man has benefited without thereby incurring any legal liability." William R. Anson, Principles ofthe Law of Contract 149 (Arthur L. Corbin ed., 3d Am. ed. 1919). '''Past Consideration.' The quotation marks suggest that there is something wrong with this phrase. Past consideration, or something given, done, or suffered in the past which purportedly supports a subsequent promise, is no consideration. If a benefit has been conferred upon the promisor or if the promisee has suffered a detriment in the past and there is a subsequent promise to pay therefor, there is no bargain for such past value. Therefore, it cannot constitute consideration." John Edward Murray Jr., Cases and Materials on Contracts 427 (2d ed. 1976).

past recollection recorded Evidence. A document concerning events that a witness once knew about but can no longer remember. The document itself is evidence and, despite being hearsay, may be admitted and read into the record if it was prepared or adopted by the witness when the events were fresh in the witness memory. Fed. R. Evid. 803(5). Also termed recorded recollection; past recorded recollection. Cf. PRESENT RECOLLECTION REFRESHED.

Pasula-Robinette test The principle that if a miner establishes a prima facie case of retaliation for filing a claim under the Mine Safety and Health Act, the mine operator can still prevail by proving, as an affirmative defense, that (1) the miner did not engage in a protected activity, (2) the adverse action was based on the miner unprotected activity, and (3) the mine operator would have taken the same action based solely on the unprotected activity. To establish a prima facie case of retaliation, the evidence must show that the miner engaged in a protected activity and that an adverse employment action occurred based at least in part on that activity. 30 USCA § 815(c); Secretary ex rei. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980); Secretary ex reI. Robinette v. United Coal Co., 3 FMSHRC 802 (1981).

pat. pend abbr. PATENT PENDING.

pat-down See FRISK.

Pate hearing A proceeding in which the trial court seeks to determine whether a criminal defendant is competent to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966); 18 GSCA § 4241. Also termed competency hearing; incompetency hearing.

pateat universis per praesentes (pat-ee-at yoo-na-var-sis par pri-zen-teez). [Law Latin) Let it be open to all men by these presents. Cf. KNOW ALL MEN BY THESE PRESENTS; NOVERINT UNIVERSI PER PRAESENTES.

patent (pay-tant), adj. Obvious; apparent <a patent mbiguity>. Cf. LATENT.

patent (pat-ant), 1. The governmental grant of a right, privilege, or authority. 2. The official document so granting. Also termed public grant. See LETTERS PATENT.

Patent Act The current federal statute governing patent registrations and rights, enacted in 1952.35 USCA §§ 1 et seq. The Act reversed several Supreme Court doctrines of patentability by liminating the synergism and "flash ofgenius" requirements for combination patents (§ 103), making "means-plus function claims valid once again (§ 112), and narrowing the patent-misuse doctrine of contributory infringement (§ 271). Also termed Patent Act of 1952.

Patent Act of 1790 The first U.S. patent statute, establishing a board to examine patent applications, specifications, and drawings to determine whether the invention is suffiCiently useful and important to justify the granting ofa patent. The examining board, comprising the Secretary of State, the Secretary of War, and the Attorney General, was abolished three years later in favor of a simple registration system.

Patent Act of 1793 An early U.S. patent law that (1) abandoned the examination process in favor of simple registration (2) established the infringement defenses of invalidity for lack of novelty or public use; and (3) articulated the four categories of patentable subject matter as machine, manufacture, composition of matter, and art (now called process). The State Department handled the registration of patents, and their question of their validity was left up to the courts.

Patent Act of 1836 The U.S. statute that charged the Patent Office with examining patent applications for novelty and utility, and that first required claims in patent applications.

Patent Act of 1870 A U.S. statute that shifted the burden of disclosing the exact nature of an invention to the patent applicant by requiring a rigorous listing of distinct claims. Before the Act was passed, patent claims were less important than the description and drawings, and the scope of the patent grant was often ambiguous.

Patent Act of 1952 See PATENT ACT.

patent agent A specialized legal professional - not necessarily a licensed lawyer who prepares and prosecutes patent applications before the Patent and Trademark Office. Patent agents must be licensed by the Patent and Trademark Office. Also termed patent solicitor; registered patent agent.

patent agent See AGENT (2).

patent ambiguity See AMBIGUITY.

patent ambiguity (pay-tant). An ambigUity that dearly appears on the face of a document, arising from the language itself <the nonperformance was excused because the two different prices expressed in the contract created a patent ambiguity>. Also termed intrinsic ambiguity; ambiguitas patens. "[L]atent ambiguity ... must be carefully distinguished from patent ambiguity, where words are omitted, or con· tradict one another; for in such cases explanatory evidence is not admissible. Where a bill of exchange was expressed in words to be drawn for 'two hundred pounds' but in figures for '£245,' evidence was not admitted to show that the figures expressed the intention of the parties." William R. Anson, Principles of the Law of Contract 401 (Arthur L Corbin ed., 3d Am. ed. 1919).

Patent and Copyright Clause The constitutional provision granting Congress the authority to promote the advancement of science and the arts by establishing a national system for patents and copyrights. U.S. Const. art. I, § 8, cl. 8.

Patent and Trademark Depository Library A library that has been designated by the U.S. Patent and Trademark Office as an official repository tor information to aid in a patent or trademark search. Abbr. PTDl

Patent and Trademark Law Amendments Act See BAYH-DOLE ACT.

Patent and Trademark Office The Department of Commerce agency that examines patent and trademark applications, issues patents, registers trademarks, and furnishes patent and trademark information and services to the public. Abbr. PTO.

patent application An inventor s request for a patent, filed with the U.S. Patent and Trademark Office and accompanied by a specification (ending with at least one claim), drawings, the filing fee, and (except for a provisional patent application) an oath or a declaration.

patent attorney A lawyer who drafts and prosecutes patent applications, and who represents inventors in infringement suits and interference hearings. In addition to a law license, a patent attorney must have a scientific or technical background, pass the patent bar examination, and be licensed by the U.S. Patent and Trademark Office.

patent claim A formal statement describing the novel features of an invention and defining the scope of the patent s protection <claim #3 of the patent describes an electrical means for driving a metal pin>. Cf. SPECIFI¬CATION (3). "[The patent] application concludes with one or more claims. which are summaries of the points of novelty of the invention disclosed by the specification. said claims also following certain fixed forms. If they are broad and in general terms, the patentee will be well protected, and will be the possessor of a worth while patent; but if, on the other hand, the claims are limited in scope, if they recite a multiplicity of exactly stated and unimportant elements, or if they are bad in anyone of a number of other ways, the chances of success are small, the patent will be full of loop• holes of which infringers will be prompt to take advantage, the inventor will not have received all he is entitled to, nor all he has paid for, and, if the claims are very limited, it is more than likely that he will have obtained a patent not worth the paper upon which it is printed." Richard B. Owen, Patents, Trademarks, Copyrights, Departmental Practice 14 (1 925).

Patent Cooperation Treaty A 1970 treaty that streamlined the process of securing patents in multiple countries by establishing a single filing date and providing for a single preliminary patent search. An inventor who wants to qualify for patents from several member countries files a standard application in one country, thus preserving the priority date, then submits a PCT filing that deSignates which other countries patents are being applied for. WIPO, the United Nations World Intellectual Property Organization, administers the treaty. Often shortened to PCT. See international application under PATENT APPLICATION.

patent danger See apparent danger (1) under DANGER.

patent danger See apparent danger (1).

patent deed See LETTERS PATENT (2).

patent defect See DEFECT.

patent defect A defect that is apparent to a normally observant person, esp. a buyer on a reasonable inspection. Also termed apparent defect.

patent disclaimer See statutory disclaimer.

patent disclaimer See statutory disclaimer under DISCLAIMER.

patent grant See PATENT (3).

patent infringement See INFRINGEMENT.

patent infringement The unauthorized making, using, offering to sell, selling, or importing into the United States of any patented invention. 35 USCA § 271{a). "In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it." Craver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855 (1950) Uackson, J.).

patent insurance (pat-ant). 1. Insurance against loss from an infringement of the insureds patent. 2. Insurance against a claim that the insured has infringed anothers patent. 3. Insurance that funds a claim against a third party for infringing the insureds patent.

patent insurance See INSURANCE.

patent marking The incorporation or affixation of a patent number to a patented article s surface or surrounding packaging. AffiXing the patent number to a product gives constructive notice of patent rights to infringers. Without the number in place, a patentee can not recover losses that occur before the infringer has actual notice of the patent. 35 USCA § 287. See PATENT NUMBER.

patent medicine A packaged drug that is protected by trademark and is available without prescription.

patent number The unique eight-character number assigned by the U.S. Patent and Trademark Office to a patent upon issuance. See PATENT MARKING.

patent of precedence A royal grant to a person by letters patent of a higher social or professional rank than the person would ordinarily hold or be entitled to. In the 19th and early 20th centuries, the patent was most often used to give certain barristers more rights and privileges. For example, a King s Counsel could not represent a party against the Crown without a patent of precedence. See PREAUDIENCE.

Patent Office See UNITED STATES PATENT AND TRADEMARK OFFICE.

Patent Office Reports The former official publication of the U.S. Patent and Trademark Office. It was replaced in 1872 by the Official Gazette of the United States Patent and Trademark Office.

patent pending The designation given to an invention while the Patent and Trademark Office is processing the patent application. No protection against infringement exists, however, unless an actual patent is granted. Abbr. pat. pend.

patent pooling The cross-licensing of patents among patentees. Patent pooling does not violate antitrust laws unless it is done to suppress competition or control an industry.

patent right 1. See PATENT (3).2. See RIGHT.

patent right A right secured by a patent.

Patent Roll A list of the letters patent issued in the United Kingdom in any given year. The first Patent Roll was issued in England in 1201. The Rolls were originally used to grant offices, lands, licenses, peerages, and pensions. In later centuries, they included grants of patents for inventions.

patent search 1. See INFRINGEMENT SEARCH. 2. See PATENTABILITY SEARCH. 3. See VALIDITY SEARCH.

patent solicitor See patent agent under AGENT (2).

patent suppression The deliberate nonuse of a patent, esp. in order to deny the public or competitors the benefit of the invention. Patent suppression is a rich source of urban legend, such as the rumor of oil companies sitting on inventions that would greatly improve gas mileage, or pantyhose companies suppressing a patent on no-run nylon. But the stories are not always fictional: in 1942 Standard Oil admitted trying to delay synthetic-rubber technology in order to protect its market in natural rubber.

patent term The period during which a patent is in force.

patent watch A system for continually monitoring published patent applications and newly issued patents in a particular scientific or technological field to detect or ensure against infringements.

patent writ See WRIT.

patentability opinion A patent attorney s or patent agent s opinion on the patent office s probable holding about the allowability of a patent application s claims. The opinion is almost a mini-examination report because it is based on consideration of the invention s subject matter, prior art, etc.

patentability opinion See OPINION (2).

patentability search An inventor s research into a field s state of the art to determine whether an invention will qualify for patent protection. Cf. INfRINGEMENT SEARCH; VALIDITY SEARCH.

patentable adj. Capable of being patented <patentable processes>.

patentable combination A series of process steps, mechanical elements, or a mixture of materials that produce a desirable result or effect that is not obvious from the qualities of the individual components or steps.

patentable subject matter Things that by law can be patented; any machine, process, manufacture, or material composition, or an improvement to such things, that (1) is discovered or invented, (2) is new and useful, and (3) meets the statutory conditions and requirements to qualify for a patent. Patents may be issued for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 USCA § 101. Patents may not be issued for laws of nature, naturally occurring materials, physical phenomena, or abstract ideas and formulas. But if a naturally occurring material is processed in a way that gives it a new use, that process may be patentable. Often shortened to subject matter. Also termed statutory subject matter.

patent-application amendment A modification to a patent application, usu. narrowing or eliminating some claims in response to an examiner s rejection.

patentee (pat-an-tee). One who either has been granted a patent or has succeeded in title to a patent. Although it might seem helpful to distingUish a patentee as a person to whom a patent is issued and a patentholder as the owner of a patent, including the original grantee s assigns, the Patent Act explicitly includes all title-holders under the term patentee, 35 USCA § 100(d). Also termed patent-holder; patent-owner.

patent-exhaustion doctrine The rule that the unconditioned sale of a patented article ends the patentee s monopoly right to control its use. That control may still be exercised by limitations in a contract or license, as long as it does not amount to anticompetitive patent misuse. Adams v. Burke, 84 U.S. (17 Wall.) 453 (1874). See FIRST-SALE DOCTRINE.

patent-holder See PATENTEE.

patent-misuse doctrine An equitable rule that patentees should not be allowed to use their patent to effectively broaden the scope of their monopoly in restraint of trade or otherwise against the public interest. Two common examples of anticompetitive broadening are (1) using a patent to restrain competition from an unpatented product or process, and (2) employing the patent beyond its lifespan to exclude others from gaining commercial advantages by using the product or process. The practical effect offinding patent misuse is the loss of patent protection. The doctrine operates independently of antitrust law but overlaps it in many ways and arose in the same era, at the turn of the 20th century. It has been described as an application of the equitable rule of unclean hands. See nonmetered license under LICENSE.

patentor (pat-en-tar or pat-an-tor). One who grants a patent.

patent-owner See PATENTEE.

patent-prosecution process See PROSECUTION (4).