Patents

Patents can be used to protect new and non-obvious inventions for up to 20 years.

Generally speaking, an “invention” is a new idea that can be put to some practical use.  At its core, an “invention” is somehow technical, which is what sets it apart from other types of ideas & innovations, which may be more aesthetic or brand-related in nature.

In most cases, inventions are improvements or modifications to existing technology, which provide some sort of technical or commercial advantage. The technical or commercial advantage is what makes inventions valuable, and thus worth the investment of time and money in protecting them.

If your business can produce a product, or carry out a process better, quicker or at a lower cost than your competitors, then this provides your business with an advantage.  If your invention is not protected, for example, by way of a patent, then your competitors are effectively able to jump straight to copying your invention, but without having had to make the investment that you did in R&D, experimentation, etc..

A patent is a form of legal protection for inventions.  It provides a fixed-term exclusive right to exploit an invention, in return for full public disclosure of that invention.  The idea is that in return for being granted exclusivity by The State, everyone else is able to benefit by learning from your invention, and being free to exploit it themselves once the patent has expired.

Not all inventions can be protected by a patent (“patented”) – only those that are:

  • Technical, i.e. capable of any form of “industrial application” – therefore, mere ideas, rules, schemes, mental acts, business methods, aesthetic creations, branding, etc. cannot be protected by a patent.
  • New, i.e. not having been known by, to shown to, the public, in any way, prior to the patent’s filing date.
  • Inventive, i.e. the differences between the invention and everything that was known before the patent’s filing date cannot have been obvious at the time the application was filed. “Inventive step” is assessed through the eyes of the notional “person skilled in the art” – essentially, whether a person (or team of people) working in the filed of the invention would have thought to make the invention without any ingenuity – given the problem that the invention seeks to solve.

There are some further exclusions, for example: inventions, which if patented, might interfere with doctors’ ability to save/improve human life; computer programs per se, and other inventions that are contrary to public policy or morality.

The main obstacle to obtaining a patent is invariably “inventive step”, as this can be quite subjective.  However, it is not the size of the leap from what was known before to the invention that is critical, but rather whether that leap, however small, would (not could) have been obvious.  Therefore, even relatively minor improvements and modifications to existing technology can, potentially, be patented, provided all of the legal and formal requirements are met.

Patents are normally obtained by making an application to the Patent Office (nowadays, the Intellectual Property Office) of the country or countries in which protection is sought. In most cases, patent applications are searched and examined by the Patent Office concerned to check whether they meet the relevant criteria (which vary from country to country), and if so, a patent can be granted. Thereafter, the patent must be maintained (normally by paying renewal fees) and enforced (usually via Court action) by the patentee.

Patents do not provide a positive legal right to do something, but rather a legal basis to sue if a third party commits an infringing act. Therefore, even though you may have a patent, your making, selling, importing, using etc. products or processes falling within the scope of that patent may nevertheless infringe the rights of an earlier patentee. Conversely, if a competitor were to commit an infringing act, it would be the responsibility of the patentee to detect this and to take appropriate legal action to prevent it.