To Patent Or Not To Patent…. 10 Basic Things You Need To Know About Patents

Most people know what patents are, and why they are necessary, why you should patent, when to file an application, what can be patented etc., or do they…?
When asking people in the street and even in business about patents, one quickly learns there are a lot of misconceptions. Therefore, let me list the 10 basic things you need to know about patents:

1. What is a patent?

A patent is a set of exclusive rights granted by a government for a limited amount of time (generally 20 years) to the inventor or assignee.
It is a document describing the invention, which is a product or process that provides a new way of doing something, or offers a new technical solution to a problem. The precise scope of the invention is defined it in a set of claims. [ref. 1, 2]

2. What can be patented?

A product or process is generally patentable when it follows three basic guidelines:

  1. it must be novel, which means: it should not be known to the public;
  2. it should involve an inventive step, which means: it should be non-obvious to a person skilled in the art;
  3. it should be industrially applicable, which means ; it may not be a wish-list.

However, even when all these requirements can be met, you should ask yourself whether filing a patent is necessary (see figure 1).

Patent Drawing
Figure 1. Apparatus for facilitating the birth of a child by centrifugal force (US 3,216,423)

3. Who grants patents?

Each country or region has its own patent office, where  applications are examined and granted. These examinations are being handled by patent examiners, which have a scientific or engineering background. They examine whether an application meets the criteria for a grant of patent. As mentioned above, the invention should be novel, contain inventive steps or be non-obvious, industrially applicable and sufficiently disclosed. The five largest patent offices (IP5) [ref. 3] are the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the State Intellectual Property Office of the People’s Republic of China (SIPO), and the United States Patent and Trademark Office (USPTO). These offices account for 90% of all patent applications filed worldwide, which is approximately 2 million applications per year [ref. 5]. They jointly grant approximately 900.000 patents per year [ref. 5].

4. Why are patents necessary?

Patents are an incentive for the inventor, for the time and money invested in a particular invention. Thereby, they encourage innovation [ref 1].
Bringing innovation to market can be time consuming and costly, especially in the healthcare industry. Therefore, in most cases the intellectual property regarding innovations in the healthcare industry is protected by at least one patent. Furthermore, if no intellectual property rights can be obtained for an innovation, it may never see the light of day, simply because there is no justification for a company to invest in it.

5. Does a worldwide patent exist?

There is no such thing as a worldwide patent and at present there is not even a European patent. There is, however, the Patent Cooperation Treaty (PCT) [ref. 4], which is an international agreement between a large set of countries for filing patents. As mentioned, the PCT-application does not grant an international patent, but rather provides a central filing means for patent applications in PCT-member states. Following the PCT stage, a patent application will be filed in each of the member states the inventor wishes to seek protection for. Therefore, a PCT-application simplifies the process for filing patent applications in multiple countries and it delays the expenses associated with filing patent applications in each country separately.

6. How long does it take to grant a patent?

The duration of the procedure to grant a patent strongly depends on the choices made by the applicant (e.g. application route, countries), but in general it ranges from 3-6 years.

7. How much does a patent cost?

Like the time required for a grant of a patent application, the costs also depend on choices made by the applicant (e.g. application route, countries), but in general it ranges from €10.000 – €100.000. After the grant of patent, a periodic fee will be charged by each of the countries, where the patent is to be maintained.

8. What uses does a patent have?

A granted patent for a new product or process can be used to prohibit others from using your invention without your consent [ref. 1]. Furthermore, it can be used to leverage deals with other parties like investors or parties active in the field of the invention. It is by no means a right you require to make, use, distribute or sell your invention yourself.
That being said, in case of infringement, the rights of a patent have to be enforced. This is both time consuming and costly, which is why most disputes are settled between parties.

9. When should you file for a patent?

You should consider patenting your invention, when it can easily be copied by others. For instance, a complicated mixture like a beverage as Coca-Cola is best served by secrecy, because it is cheaper than maintaining a patent and litigating infringement cases. Furthermore, a good kept secret outlasts the limited amount of time a patent is valid. On the other hand, a LEGO-brick can be copied easily by others and requires a patent to keep others from making, using distributing or selling an identical product.

10. Who can help me apply for a patent?

Patent attorneys and specialized consultants are highly skilled and trained to assist you with your application. They generally have a scientific or engineering background and they possess the specialized qualifications required for representing your case at one or more patent offices. These qualifications differ between countries.

This article describes some of the basics about patents and you may have a lot more questions relating to handling intellectual property. Please feel free to write me an email, drop me a line or simply leave your message in the comment box below.



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