A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. In order to be patentable, the invention must fulfill certain conditions (please see the answer to the question below ” what kinds of inventions can be patented?“).
A patent provides protection for the invention to the owner of the patent. The protection is granted for a limited period, generally 20 years.
Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. These patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.
A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.
Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced.
Patented inventions have, in fact, pervaded every aspect of human life, from electric lighting (patents held by Edison and Swan) and plastic (patents held by Baekeland), to ballpoint pens (patents held by Biro) and microprocessors (patents held by Intel, for example).
All patent owners are obliged, in return for patent protection, to publicly disclose information on their invention in order to enrich the total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity and innovation in others. In this way, patents provide not only protection for the owner but valuable information and inspiration for future generations of researchers and inventors.
The first step in securing a patent is the filing of a patent application. The patent application generally contains the title of the invention, as well as an indication of its technical field; it must include the background and a description of the invention, in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied byvisual materials such as drawings, plans, or diagrams to better describe the invention. The application also contains various “claims”, that is, information which determines the extent of protection granted by the patent.
An invention must, in general, fulfill the following conditions to be protected by a patent. It must be of practical use; it must show an element of novelty, that is, some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called ” prior art“. The invention must show an inventive step which could not be deduced by a person with average knowledge of the technical field. Finally, its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, or methods for medical treatment (as opposed to medical products) are generally not patentable.
A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office and the African Regional Intellectual Property Organization. Under such regional systems, an applicant requests protection for the invention in one or more countries, and each country decides as to whether to offer patent protection within its borders. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application which has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.
At present, no world patents or international patents exist.
In general, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.
Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application. Further information concerning the PCT is available.
Procedural and substantive requirements for the grant of patents as well as the amount of fees required are different from one country/region to the other. It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection. A list of URLs and a directory of national and regional intellectual property offices are available.
In order to search patent applications and granted patents, some national or regional patent offices provide free-of charge electronic databases via Internet. A list of URLs of web-based databases is available:.
WIPO provides access to a comprehensive electronic database on published international patent applications filed under the PCT system from 1978 to the present day in image format and to fully searchable text of descriptions and claims for PCT International Applications filed as from July 1998.
Wherever web-based databases are not available, patent information may be consulted on paper, on microfilms or CD-ROMs, at the national or regional patent offices.
Searchable Internet patent databases have significantly facilitated the access to patent information. However, given the complexity of patent documents and the technical and legal skills required, it is advisable to contact a professional patent attorney if a high-quality patent search is required.
WIPO Patent Information Services (WPIS) provides free-of-charge services for users in developing countries who wish to obtain technical search results in relation to their inventions.
The Collection of Laws for Electronic Access (CLEA) provides easy access to intellectual property legislation from a wide range of countries and regions as well as to treaties on intellectual property administered by WIPO.
Many national or regional patent Offices provide information concerning national or regional legislation on their web sites. A list of URLs of national and regional intellectual property offices are available.
Procedural and substantive requirements for the grant of patents are different from one country/region to the other. In particular, practices and case law regarding the patentability of software-related inventions vary significantly in different countries. For example, in some countries, inventions within the meaning of patent law must have a technical character and software as such is not considered a patentable invention, while in others, such requirements do not exist, so that sofrware is generally patentable subject matter.
It is therefore recommend that you consult a practicing lawyer who is specialized in intellectual property or the intellectual property offices of those countries in which you are interested to get protection. A list of URLs and a directory of national and regional intellectual property offices are available.
On the other hand, computer programs may be protected under copyright. However, according to a well-established principle, copyright protection extends only to expressions, not to ideas, procedures, methods of operation or mathematical concepts as such.
Can I discuss the details of my invention with a potential investor before filing a patent application?
It is important to file a patent application before publicly disclosing the details of the invention. In general, any invention which is made public before an application is filed would be considered prior art (although the definition of the term “prior art” is not unified at the international level, in many countries, it consists of any information which has been made available to the public anywhere in the world by written or oral disclosure). In countries which apply the above definition of the term “prior art”, the applicant’s public disclosure of the invention prior to filing a patent application would prevent him/her from obtaining a valid patent for that invention, since such invention would not comply with the novelty requirement. Some countries, however, allow for a grace period, which provides a safeguard for applicants who disclosed their inventions before filing a patent application, and the novelty criteria may be interpreted differently depending on the applicable law.
If it is inevitable to disclose your invention to, for example, a potential investor or a business partner, before filing a patent application, such a disclosure should be accompanied by a confidentiality agreement.