A patent is an agreement between an inventor and the government: the inventor teaches the public how to make and use the invention and, in return, is given the right to preclude the public from making, using or selling the invention for a [certain] period." (Michael Lechter, Successful Patenting for Engineers and Scientists, IEEE Press, 1995).
A patent is an exclusive right granted for an invention, which is generally a product or a process that provides a new technical solution to a problem. A patent is granted by a national patent office or by a regional office that does the work for a number of countries, such as the European Patent Office.
A patent provides protection for the invention to the owner of the patent for a limited period which is generally 20 years.
The right conferred by the patent grant is generally a right to exclude others from making, using, offering for sale or selling the invention. Accordingly, what is granted is not the right to make, sell or import but the right to exclude others from making, selling or importing the invention.
Patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party.
Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their inventions. Another purpose of the patent system is to promote technological innovation for the benefit of society as a whole.
All patent owners are obliged, in return for patent protection, to publicly disclose information on their invention in order to enrich the total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity and innovation in others. In this way, patents provide not only protection for the owner but valuable information and inspiration for future inventions.
In general a patent will be granted for an invention so long as it:
The rules governing what is "patentable" vary slightly from one country to another. Most inventions are new machines, products or industrial processes, and these generally can be patented. However aesthetic creations, or scientific discoveries without specified application, cannot be patented. Things that exist in nature, which are discovered and not invented, machines that defy the laws of nature, scientific theories or mathematical methods cannot be patented.
The patent law has been updated in Europe to reflect advances in the fast moving areas of biotechnology and computer software. According to recent changes in the legislation, biological material isolated from its natural environment or produced by a technical process may be the subject of invention even if it previously occurred in nature. However, the human body or human genes cannot be patented. Computer program products can be patentable if they resulted in additional technical effects which went beyond the "normal" physical interaction between software and hardware associated with running the program.
In the USA, one can patent a computer program, an animal and a variety of plant. This is not so in other countries, although alternative protection may be obtained in some cases through Registered Designs or the laws of Copyright.
We have herein below described some of the major steps of the procedure for obtaining a patent.
The first step in the patenting process is to obtain a priority right. A priority right is a time-limited right of 12 months, triggered by the first filing of a patent application. The period of priority is often referred to as the "priority year".
When a priority is validly claimed, the date of filing of the first application, called the "priority date," is considered to be the "effective date of filing" for the examination of novelty and inventive step or non-obviousness for the subsequent application claiming the priority of the first application. In other words, the prior art which is taken into account for examining the novelty and inventive step or non-obviousness of the invention claimed in the subsequent application would not be everything made available to the public before the filing date (of the subsequent application) but everything made available to the public before the priority date, i.e. the date of filing of the first application.
Usually an international patent application is filed before expiry of the priority year. The Patent Cooperation Treaty (PCT) is an international patent law treaty which provides a unified procedure for filing patent applications to protect inventions in each of its contracting states.
A patent application filed under the PCT is called an international application, or PCT application. The main advantages of the PCT procedure are the possibility to delay as much as possible the national or regional procedures, and the respective fees and translation costs, and the unified filing procedure.
An international patent application has two phases – i.e. the international phase and the national phase.
In the international phase the patent application is pending under a single patent application filed with the patent office of a contracting state of the PCT. A search is performed by an International Searching Authority (ISA) in order to find the most relevant prior art documents regarding the claimed subject matter. The search results in an International Search Report (ISR), together with a written opinion regarding patentability. The international search is optionally followed by a preliminary examination, performed by an International Preliminary Examining Authority (IPEA).
The international search report can help the applicant to decide whether it is worthwhile to seek national protection for the invention, and if so, in how many countries. Yet another advantage of filing an international application under the PCT is that many national patent authorities will rely on the international search report.
18 months after the filing date or the priority date, the international application is published by the International Bureau at the WIPO.
At 30 months from the filing date of the international application or from the earliest priority date of the application if priority is claimed, the international phase ends and the international application enters in national and/or regional phase. However, any national law may state a time limit for national entry which expires later than 30 months. For instance, it is possible to enter the European regional phase at 31 months from the earliest priority date. National and regional phases can also be started earlier on the express request of the applicant.
The relevant national or regional authorities administer matters related to the examination of the application and issuance of the patent.
At present, no world patent exists. Accordingly, an application for a patent must be filed, and a patent shall be granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents, which have the same effect as applications filed, or patents granted, in the member States of that region.
Further, any resident or national of a Contracting State of the Patent Cooperation Treaty (PCT) may file an international application under the PCT. A single international patent application has the same effect as national applications filed in each designated Contracting State of the PCT. However, under the PCT system, in order to obtain patent protection in the designated States, a patent shall be granted by each designated State to the claimed invention contained in the international application.
The right conferred by the patent grant is generally a right to exclude others from making, using, offering for sale or selling the invention. Patent rights are usually enforced in a court, which, in most systems, holds the authority to stop patent infringement.
A patent owner has the right to decide who may - or may not - use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain, that is, the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.
"Freedom to operate", abbreviated "FTO", is usually used to mean determining whether a particular action, such commercializing a product, can be done without infringing valid intellectual property rights of third parties.
Since IP rights are specific to different jurisdictions, a "freedom to operate" analysis should relate to particular countries or regions where you want to commercialize your invention.
The links herein below will direct you to information regarding patent prosecution in the international and national phase.
Denmark
Europe
WIPO
National phase