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What is a patent?

by | Sep 17, 2013

Mind Patents

If you have invented something and want to make use of it commercially, how do you prevent someone else from exploiting your invention? The best way to protect yourself in this instance would be to obtain a patent.

A patent is the set of rights afforded to you by a sovereign state which allow you to prevent other people from making, using, disposing of, offering to dispose of, import or keep your invention, within the territory for which your patent is granted, essentially conferring a monopoly upon you for your invention. The requirement upon you is to then publicly disclose your invention within your patent application.

Should your patent be granted, you will then be the owner of the patent, since a patent is considered as property. However, you will have to renew your patent within the territory in order to keep it in force, by payment of renewal fees to the relevant patent office.

A patent does not in itself give the right to make, use, dispose of, offer to dispose of, import or keep an invention. For instance, if someone patented an improvement to your patented invention, they would be unable to sell it in conjunction with your invention without your approval.

What can you patent?

So, what makes an invention worthy of being granted a patent? The critical constraints are that the invention must be novel (i.e. unique), inventive (i.e. not obvious) and capable of industrial application (i.e. useful). The novelty requirement prevents people from patenting things which already exist, whereas the inventiveness requirement prevents someone from patenting simple modifications to existing inventions. Furthermore, there is the requirement for industrial applicability, preventing people from patenting things which have no use. Since there is a large global backlog of patents awaiting examination, it is not worth the time or cost for anyone to patent useless inventions.

There are also significant exemptions from patentability within territories. For instance, in the UK, one cannot patent: discoveries, scientific theories or mathematical methods; literary, dramatic, musical or artistic works, or aesthetic creations; schemes, rules or methods for performing a purely mental act, playing a game, or doing business, or a program for a computer; the mere presentation of information; or methods of treatment or diagnosis of humans or animals. The exemptions are in place to prevent the patenting of non-technical matter.

Scientific or mathematical discoveries cannot be patented, as this would be an impediment to research and development. However, products or processes which are created as a result of such research can generally be patented, since these will likely have a technical character. The restriction on methods of treatment and diagnosis is restricted for similar reasons.

Aesthetic works also fall under the umbrella of non-technical matter. However, artistic works will be covered by copyright, and specific aesthetic features of a product can be covered by design rights, so there is scope for intellectual property coverage within these exemptions.

The arguments against schemes, rules and methods for mental acts are that there is nothing really inventive about them; given enough time, anyone could perform the mental acts without the schemes. For the patenting of games, there needs to be proof of technical character. The restriction on presentation of information arises from similar grounds.

How do you create a patent?

To obtain a patent, you must apply to the relevant office (the UK Intellectual Property Office in Britain). To obtain ‘patent pending’ status in the UK, you must provide your identity and means of contact, and a description of the invention along with your request for a patent. This satisfies the public disclosure requirement for getting a patent.

There are further requirements, however, before a patent can be granted. The patent application must have one or more claims, as well as formal drawings.

Whilst the description of the invention is your public disclosure, the claims are what define the scope of the protection of your patent, and as such, can be considered to be the most important part. It is advisable to make your claims as broad as possible to prevent others from bypassing the protection of the patent by making minor amendments to your invention. The claims must be supported by the description, and not be so broad as to be covered by existing inventions.

If you require advice or guidance on filing a patent application for your invention, please contact the attorneys at Albright IP.