Patents

What is a patent?

Patents protect the technical and functional aspects of products and processes.

A patent is a form of intellectual property which, like trade marks and registered designs is a territorial right, but which protects ideas of a technical or technological nature - inventions that cover how things work, what they do, how they do it, what they are made of and how they are made. It gives the owner the right to prevent others from making, using, importing or selling the invention without permission.

To be potentially patentable the innovative idea must be new, have an inventive step that is not obvious to someone with knowledge and experience in the subject and be capable of being made or used in some kind of industry.

Certain exclusions apply to the subject matter of patents. An invention cannot be patented if it is:

• A scientific or mathematical discovery, theory or method;
• A literary, dramatic, musical or artistic work;
• A way of performing a mental act, playing a game or doing business;
• The presentation of information, or some computer programs;
• An animal or plant variety;
• A method of medical treatment or diagnosis;
• Aanything immoral or contrary to public policy.

A legal requirement for a patent to be issued is that it should not have been made public in any way, for example by talking openly and indiscriminately about it, by demonstration, advertisement, or article in a journal, before it is officially applied for. In other words the idea must be kept secret. Those to whom the idea needs to be shared, for example a potential business investor, should be required to sign a confidentiality agreement before the idea is revealed.

Doing a check before applying for a patent to see if the invention is in fact new (and whether if you were to use it there would be no infringement of someone else’s rights), could be very worth while. Investment in a search through published patents and other documents such as trade catalogues could be a very big cost saver in terms of wasted effort and financial outlays as well as potential damages paid to a claimant.

How does one apply for a patent?

The invention has to be described in a careful and technical way within what is called a ‘patent specification’ - a written description and drawings of the invention with claims for what it does and a summary (‘abstract’) which includes all the important technical parts of the invention. At this stage it is well worth employing the skills of a qualified Patent Attorney to prepare this legal document.

After the application has been filed the UK Patent Office conducts a search of the claims to determine whether the invention is new and whether the subject matter is patentable and inventive. Negotiations between the Patent Office and the applicant or his/her representative follow at this stage, not infrequently resulting in the claims needing to be narrowed to ensure that they do not overlap with something already known. If a novel and inventive set of claims is allowed a patent will be issued, the date of effective protection being the day on which the application was filed.

Once granted, as long as renewal fees are paid every year, a UK patent has a life of 20 years and provides protection throughout the UK.

For protection overseas, the procedure is to apply with separate applications to patent offices in individual countries or through the international patent system, known as the Patent Co-operation Treaty (PCT). Patent protection in most European countries can also be obtained by filing an application under the European Patent Convention (EPC).