WHAT IS A PATENT?

What Are Patents?

Patents are one form of Intellectual Property which is intended to protect new and useful inventions. An inventor who is granted a patent has the right to exclude others from making, using, selling or importing the invention for a certain period of time, which is usually 20 years from the date of filing the patent. In exchange for giving the inventor a time limited monopoly to practice and benefit from the invention, full disclosure of the invention and how it works is required. Patents encourage inventors to innovate and create new and useful products by ensuring that they will economically benefit from doing so. At the same time, by requiring inventors to disclose their invention, patents promote innovation in general as other people can learn from and improve upon the inventions of others.

What are the Requirements for Obtaining a Patent

There are many requirements for obtaining patent protection, and some of these vary between patent offices. However, there are some general requirements that represent the most important conditions for obtaining a patent, and these are listed below:

1. Novelty: The invention has to be new and must not have been disclosed publicly by the inventor or anyone else anywhere in the world prior to filing the patent.

2. Non-Obviousness (Inventive Step): The invention must also not be an obvious modification to an existing innovation. It must represent an “inventive step” over existing technology.

3. Utility: The invention must be useful, and it must accomplish what it is intended to do.

4. Patentable Subject Matter: In general, an invention must be a new method, process, machine, manufacture or composition of matter. Also, certain types of subject matter are excluded from patentability, and this varies by jurisdiction. For example, many patent offices will not grant patents to living things, methods of medical treatment, works of art and laws of nature.

5. Enabling Disclosure: The inventor must provide a complete disclosure that would enable a skilled person in the particular field of technology to put the invention to practice.

What is the Process for Obtaining a Patent?

The specific processes for obtaining patents vary in each country or jurisdiction. But typically the inventor would file a patent application, including a description, drawings and claims. The description and drawings explain the inventor and how to put it into practice. The claims define exactly what scope of protection the inventor is seeking. The application is typically accompanied by other required forms and fees. Once an application is filed, the inventor would receive a filing date, which is the relevant date that is used to determine novelty and obviousness, and it is also the date as of which the inventor receives protection for their invention. The application is then published such that the general public can review the application and are made aware of the proposed patent. Patent applications are typically published 18 months after the filing date.

A patent examiner is then assigned to review the patent application to ensure that it complies with the rules and regulations. The patent examiner will issue “office actions”, which are letters to the applicant to outline any issues with the patent application, and the applicant will respond to each of these letters within a specified time frame. Once the application is found to comply with the rules and regulations, the patent examiner will “allow” the application, and it is then subsequently “granted” and comes into effect. The examiner can also refuse to allow the application if all of their concerns are not addressed, in which case the application will not be granted. In most cases, the applicant can appeal the examiner’s decision not to allow an application.

Where Are Patents Valid?

Patents are issued by Intellectual Property Offices of various governments around the world, and are enforced through the court system which has jurisdiction in the particular region where they are valid. Most patents provide protection only within the borders of the country that grants them. For example, a patent issued in the United States will allow the owner of the patent to exclude others from making or selling the invention within the United States, but offers no protection outside of the United States. In additional to patent protection within specific counties, there are also some regional Patent Offices that issue patents which are valid in several countries within a particular region. The most important example is the European Patent Office, which issues patents that are valid in several member European countries.

What is Infringement? What Can a Patent Owner Do About It?

Patent infringement is when an entity makes, uses or sells an invention without permission from a patent holder. This can happen either intentionally or unintentionally. Patent owners will typically monitor the market and competitors in particular to uncover infringement of their patents. Patent owners will sometimes perform reverse engineering on products in order to determine if their patented technology has been used.

When patent infringement is detected, the patent owner can choose to either ask the infringing party to stop making, using or selling the patent, or they can seek to license the patent to the infringing party. A patent license is an agreement that grants a party rights to a patent in exchange for some compensation. Patent licences can take many forms and compensation can also be in various forms, as negotiated between the parties. A patent owner can use the court system to enforce their patent rights and seek damages from an infringing party that refuses to stop infringing or to agree to a license.

How Can Patent Owners Make Money From Their Patents?

There are three ways that a patent owner can make money from their patent:

1) Commercialize: This simply means that the patent owner develops the technology such that it can be sold directly into the market.

2) License to Others to Commercialize: If a patent owner is an individual or company without the ability to develop the technology and bring it to the market, or if they are simply not interested in commercializing the technology themselves, they can seek to license the technology to other interested parties to commercialize, in exchange for compensation.

3) Detect Infringement: Patent owners, whether they have commercialized the technology themselves or not, have the right to enforce their patent. Which means that if they detect infringement of their patent, they are able to seek a license agreement with the infringing party in exchange for compensation, or they can seek damages in court.

4) Sell: Patents are also often sold by patent owners to other parties. This is similar to licensing, except that a sale is a complete transfer of all rights to a patent, while a license is a negotiated agreement that grants only certain rights in exchange for compensation.