Patents

Key point: A 20 year absolute monopoly in new and inventive technical innovations.

Patent protection can be obtained for many types of technical innovation, for example, for a new apparatus for carrying out a particular operation, a method or process for performing an operation or forming a product or the use of an apparatus or product for a particular purpose.

In order to determine whether patent protection can be obtained it is necessary to consider whether the technical innovation is both novel and inventive. Both of these terms have legal definition. Despite this it is usually relatively straight forward to determine whether a technical innovation is novel or not - this is based upon whether the innovation is different from that which has gone before. The determination as to whether an innovation is inventive or not is more difficult to assess, and depends upon whether it will be obvious, given what has gone before, to arrive at the invention. Unfortunately, this is a legal definition which cannot be applied without knowledge of the considerable body of case law on the subject.

Patent protection is not available for every innovation, as certain types of innovation are excluded. Excluded innovations are generally artistic, non-technical innovations and those which are not industrially applicable. Once again, these are strict legal definitions and a thorough knowledge of case law is needed to accurately assess whether an invention is excluded or not.

Patents are obtained via an application procedure that involves a search and an examination. Once any objections raised are dealt with, the application can proceed to grant. Once a UK patent has been granted, it remains in force for 20 years, subject to payment of annual renewal fees, and a granted patent provides a patentee with an absolute legal monopoly that can be used to prevent unauthorised use of the patented invention.

Generally speaking, it is necessary to obtain a patent in each country in which protection is required. A patent in a particular country does, however, enable a patentee to prevent importation into that country of an infringing product. Therefore, it is common for patentees to protect their inventions in the countries which constitute either their major markets, or which contain a manufacturing site of a major competitor. Whilst patents are essentially territorial, there are a number of international conventions which aim to make the process of applying for patent protection internationally more simple and cost effective than simply filing a national patent application in every country of interest.

The most important of these international conventions are the European Patent Convention and the Patent Cooperation Treaty (PCT). Both systems allow a single application to be made, which (if successful) will give rise to national patents in the states required. Equally importantly, they allow applicants to defer the costs associated with filing in several countries in different languages. The European Patent Convention covers most countries in Europe, and has a unified system of examination and grant, whilst the PCT covers the majority of the countries of the world, but the application is later divided into a series of national and regional applications which are examined separately.

To find out more information on patents, please click here to request a copy of our Patents leaflet.

 

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