What is a Patent?

A patent for an invention is a legal right granted by a government to the inventor. This gives the inventor the right for a limited period to stop others from making, using, or selling the invention without permission from the inventor. The maximum term of a patent in the UK is 20 years. When a patent is granted, the invention becomes the property of the inventor, which – like any other form of property or business asset – can be bought, sold, rented or hired.

Patents are territorial rights. A UK patent gives the holder rights within the United Kingdom. Similarly a patent registered in the USA only has effect in the USA. Patents must be applied for and enforced independently in other countries (this includes individual EU member states), and the regulations and outcomes are not always the same.

In 1970, the Patent Cooperation Treaty (PCT) was concluded. It is is an international patent law treaty, that provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under the PCT is called an international application, or PCT application.

Compared to registered designs, patents protect the more conceptual aspects of a product or process. The scope of protection is set out in the “claims” wording of a patent, and is not restricted to drawings. As words, rather than pictures, are used to outline the scope of protection, the patent rights can be applied more broadly than in registered designs.

What kinds of things do patents cover?

Patents are generally intended to cover products or processes that possess, or contain, new functional or technical aspects. Patents are therefore concerned with, for example, how things work, what they do, how they do it, what they are made of, or how they are made.

Most patents are for incremental improvements in known technology; that is evolution rather than revolution. The technology does not have to be complex.

US patent laws are generally considered to be the most liberal and patent-friendly in the world, particularly for inventions implemented on computers. By contrast, UK and European patent laws are generally more rigorous as to what can be patented.

Who owns a patent?

The inventor owns the patent. If the inventor was an employee, and the invention was made during the course of the inventor’s employment, then the employer is the patent owner. A patent can be sold or licensed for others to use the invention.

Criteria for patentability
To be patentable your invention must meet all the following criteria:

  • Be new
  • Involve an inventive step
  • Be capable of industrial application
  • Not be in an excluded category

The invention must never have been made public (this includes publication or orally) in any way, anywhere in the world, before the date on which an application for a patent is filed.

The invention should not be obvious to someone with a good knowledge and experience of the subject.

An invention must be capable of being made or used in some kind of industry. This means that the invention must take the practical form of an apparatus or device, a product such as some new material or substance or an industrial process or method of operation. “Industry” is meant in its broadest sense as anything distinct from purely intellectual or aesthetic activity. It does not necessarily imply the use of a machine or the manufacture of an article.

An invention is not patentable if it is:

  • a discovery;
  • a scientific theory or mathematical method;
  • an aesthetic creation such as a literary, dramatic or artistic work;
  • a scheme or method for performing a mental act, playing a game or doing business;
  • the presentation of information, or a computer program (however it is possible to patent the ‘technical effect’ of a computer program).
  • involves more than these abstract aspects so that it has physical features (such as a special apparatus to play a new game) then it may be patentable.

How can I get a patent?

A patent application can be filed by the inventor, or by a patent attorney who is qualified and skilled in drafting, applying and prosecuting an application.

Timelines

If you plan to file in multiple countries, you must adhere to strict deadlines. An effective cost saving approach is by filing a PCT application (see above) to cover multiple countries that are WIPO members. An experienced patent attorney can carve out an effective strategy to gain patent protection in multiple countries.

Beware:
There is a significant difference between a patent and a patent application. The latter cannot be enforced. It can take many years – alongside many amendments and restrictions to the patent application ‘claims’ – before a patent is granted. Therefore, when analysing third party patent rights, it is crucial to ensure that it is a published patent that is being examined, not a patent application.

Next steps?

At BRAND PROTECT we are happy to advise on the exploitation and protection of patents. We have years of experience putting together some of the most watertight licences and agreements to ensure that all the rewards of the innovation flow to the owner of the patent in the shortest time possible.
As litigation experts, we can advise you as to the most economical way of protecting your invention against infringment and, if needed, we can represent you in court.