The patent is the most common protection mechanism used for technical invention. The patent provides the patent holder the exclusive right to commercially make, sell, distribute, import and use their patented inventions within the territory covered by the patent during the period of protection. Patent holders may choose to make, sell or use the invention themselves, let someone else make or use it for a fee (known as licensing), or sell the patent outright to someone else who then becomes the patent owner (known as ownership transfer or assignment). Or they may decide not to use the patented invention themselves, but to stop their competitors from using it during the patent period. If other party uses a patented invention without the patent owner’s permission, the patent owner can seek to enforce the rights by suing for patent infringement in the relevant national court.
The patent is a type of Intellectual Property under the Industrial Property category. It is defined as the exclusive right granted to an invention to prevent third parties from commercially exploiting – making, using, offering for sale, selling or importing the invention, which is protected by patent for a limited period of time (generally 20 years).
An invention can be defined as a product or process that offers a new way of doing something, or a new technical solution to a problem. An invention could be patented if the following patentability conditions are satisfied:
- The invention must show some new characteristic not included in the state of the art.
- Inventive step (non-obviousness). The invention must show an inventive step that could not be deduced by a person with average knowledge of the technical field.
- Industrial applicability (utility). The invention must be of practical use, or capable of some kind of industrial application.
- Disclosure of the invention. The invention must be disclosed in a clear and complete manner in the patent application to be carried out by a person skilled in the art.
- Patentable subject matter. The invention must fall within the scope of patentable subject matter as defined by national law. Patent laws in many countries exclude scientific theories, mathematical methods, plant or animal varieties, methods of medical treatment as not generally patentable.
To obtain a patent, the inventor or firm will need to file an application with a patent office describing the invention clearly and in sufficient detail to allow someone with an average knowledge of the technical field to use or reproduce it. Such descriptions may include drawings, plans or diagrams.
Patents are territorial, that means that the protection is granted within a country under its national law. In this regard, inventors and firms must decide in which territories they want to the patent protection.
There are three routes for the patent protection.
- National patent system: single patent application in the patent office of every country of interest. This requires to fill in the patent in the national language and pay the fee accordingly.
- European patent system: it makes it possible to obtain patent protection in all the member countries desired (38 countries in 2017) using a single patent application. Once granted, the European patent has the same effect in each of the countries for which it is granted as a national patent subject to the legislation of the respective country. It is processed by the European Patent Office (EPO).
- International patent system: Patent application, processed in accordance with the Patent Cooperation Treaty (PCT), that enables protection for an invention to be applied for simultaneously in a large number of countries (152 countries in 2017) through the submission of an “international” patent application. The WIPO – World Intellectual Property Organization- administers the PCT System.
At this stage it is important to highlight the right of priority. The right of priority, is regulated by the Paris Convention and it means that, having filed an application in one member country of the Paris Convention, the same applicant (or their successor in title) may, within a specified time period (12 months), apply for protection for the same invention in any of the other member countries, maintaining the priority date ( the filing date of the earlier application) as the current patent filling date, having priority over other patent applications for the same invention.
Source: WIPO, EPO