IP| Patents | B2

 .

Blog 2:     Patents

 

Patents  were  one  of  the  first  types  of intellectual  property  to be recognized in modern legal systems.

By patenting an invention, the patent owner gets exclusive rights over it, meaning that he or she can stop anyone from using, making or selling the invention without permission. The patent lasts for a limited period of time, generally 20 years. In return, the patent owner has to disclose full details of the invention in the published patent documents. Once the period of protection has come to an end, the invention becomes off patent, meaning anyone is free to make, sell or use it.

In this way, the patent system aims to benefit everyone:

       ·         Firms and inventors can maximize profits from their inventions during the patent protection period.

·         This rewards them for their effort and so encourages more innovation, which in turn benefits consumers and the general public.

·         Disclosure of the invention adds to the body of public knowledge, enabling and inspiring further research and invention.

What can be patented?

 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.

 To qualify for patent protection, an invention must be of some practical use and must offer something new which is not part of the existing body of knowledge in the relevant technical field (what lawyers call the prior art). But these requirements of utility and novelty are not enough; the invention must also involve an inventive step – something non-obvious that could not just have been deduced by someone with average knowledge of the technical field.

 Furthermore, the invention must not fall under non-patentable subject matter. Patent laws in many countries, for example, exclude scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods and methods of medical treatment (as opposed to medical products) as not generally patentable.

Obtaining a patent

Like most IP rights, patents are territorial: protection is granted within a country under its national law.

 Different countries have somewhat different laws, but generally in order to gain protection, an 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 usually include drawings, plans or diagrams.

 The application also contains various claims, that is, information to help determine the extent of protection to be granted by the patent. The application will then be examined by the patent office to determine if it qualifies for protection.

Patent rights and enforcement

Patent owners have 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.

They 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. Or they may decide not to use the patented invention themselves, but to stop their competitors from using it during the patent period.

 If someone else 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. Courts usually have the power to stop infringing behavior and may also award financial compensation to the patent owner for the unauthorized use of the invention.

 But a patent can also be challenged in court, and if it is judged to be invalid, for example because the court decides it is insufficiently novel, it will be struck down and the owner will lose protection in that territory.

Inventors and firms must decide in which territories they want patent protection. Each patent office usually charges fees for filing and processing applications, plus periodic fees for maintaining a patent once it has been granted. The cost of dealing with different national legal systems can be high, as laws and practices can vary widely and applicants will usually need to pay for representation by an authorized patent agent in each country.

Several groups of countries have developed regional patent systems that help reduce these costs, for example the African Regional Intellectual Property Organization (ARIPO). Under most of these systems, an applicant requests protection for an invention in one or more countries in the group, and each country then decides whether to offer patent protection within its borders.

WIPO administers the PCT System, an international system that allows applicants to request protection under the Patent Cooperation Treaty in as many signatory states as they wish through a single application.

___________________________________________________________________________________________