Patents: A brief guide
What is a patent?
In a nutshell, patents are exclusive rights that are intended to protect inventions, typically referring to a product or process that provides a new way of doing something. Unsurprisingly, this covers a vast array of subject matter, from new drugs to telecommunications arrays, jet engines and gene therapies.
A patent grants the owner the right to exclude others from using and exploiting their invention. This means that no one can use, sell, manufacture, or import the invention without the consent of the patent owner. In return, the patent must fully disclose how the invention works, so that others can benefit from and utilise the invention once the patent expires.
Patents can be a powerful tool in turning a clever invention into a valuable commercial asset. Like any other form of property, patents can be bought and sold. A patent owner can also allow others to exploit their invention, in return for royalties; this is commonly referred to as licencing a patent.
It’s important to note what cannot be patented – this includes computer programs, “aesthetic creations”, and scientific theories. Methods of surgery, therapy and diagnostic methods are also excluded. However, the law in this area is complex, and it’s worth getting advice from a patent attorney if in doubt.
How long does patent protection last?
In most countries, once granted, a patent lasts up to 20 years from the date of filing the corresponding patent application at the relevant patent office.
In some cases (typically for new medicines), there is the option to extend the term of protection. In the UK and Europe, this is achieved through a supplementary protection certificate (SPC), which can protect the invention for up to an additional 5 years.
However, it’s worth noting that a patent can be challenged by other parties. If a patent is found to be invalid, it can be revoked, and the rights will be lost.
How do I get patent protection?
Obtaining patent protection requires the filing of a patent application, which includes a description of the invention and how it works, as well as claims which set out the protection sought.
Patents are territorial, and therefore only protect the invention in the country which they are obtained. To obtain protection in the UK for example, an application must be filed at the UK intellectual property office (UKIPO).
Once a patent application is filed, it will be examined to ensure that certain requirements are met before a patent is granted. Most importantly, the invention must comprise patentable subject matter, it must be novel (new), and it must be “inventive”. An invention is novel if it hasn’t been disclosed before filing the application. By contrast, inventiveness requires an invention to be non-obvious at the time of filing; that is, more than a trivial development or a routine improvement to an existing technology.
There are procedures that facilitate the process of obtaining patents across multiple jurisdictions. For example, the European Patent Convention (EPC) offers a centralised route to obtaining patents across Europe (including the UK). If more global protection is sought, the Patent Cooperation Treaty (PCT) allows for a centralised filing of a patent application to obtain protection in any of its contracting states.
The timescales involved in acquiring a patent should be noted; examination can often last several years. The examination process can also incur significant costs, so its worth thinking carefully about whether patent protection is best for your invention.