What are patents for?
Patents provide a legal monopoly for inventions, giving the patent owner the right to stop others from using, selling, offering for sale, importing, making or keeping in a commercial setting a device protected by the patent, or, if the patent relates to a method, using or offering to use that method.
What is an invention?
An invention does not just have to be a functional device, it can also be a process or a method.
To be patentable, an invention must meet a number of criteria. It must be:
- Novel: the invention must be unique and not something that has already been disclosed to the public.
- Be inventive: the invention must not be obvious for someone to come up with in view of material that is already available to the public.
- Industrially applicable: the invention must be able to be used in industry.
- Not relate solely to subject-matter excluded from patentability: For example, in the UK, pure software, the presentation of information, business methods, methods of treatment on the human or animal body are examples of non-patentable subject matter, but only if the invention falls solely in one of these categories.
What are some of the benefits that a patent can provide?
Patents have a number of benefits, such as:
- Maintain competitors at an arm’s length: patents help businesses maintain their advantage over the competition by allowing them to take action against copycats.
- Attractive to investors: a patent is an asset which can increase the value of a company, in addition to demonstrating to investors that a company is innovative.
- Can license or sell off to others: in addition to or instead of manufacturing a product yourself, licensing or selling can provide a revenue in the form of a lump sum and/or royalties for up to 20 years (the maximum term of a patent).
- Obtain Patent Box Tax Relief: In the UK certain companies may be eligible to apply for a reduced rate of corporation tax, under the Patent Box Tax Relief scheme. A tax advisor should be consulted for more information about the Patent Box Tax Relief scheme.
When can I disclose my invention?
The subject matter to be protected must not have been disclosed publicly prior to filing the application for the patent. This is because any disclosed material before the date of filing of the application will act as “prior art”, even if the disclosure was by the very person applying for the patent (although some caveats exist). This disclosure may make the obtaining of a patent impossible or render any such patent invalid and unenforceable. Keeping the invention a secret before filing is very important!
How long is the patenting process and can I make it any faster?
The patenting process is a long one involving many steps and exchanges with the patent office, with the typical time from filing to grant being approximately 4-6 years, assuming all objections can be overcome (though grant is never guaranteed).
However, it is not a requirement, nor even advised, to wait until grant before getting the ball rolling on the commercial side. As soon as you have filed a patent application for a product you can advertise it as “patent pending,” which deters other companies from filing a patent application for your product.
Furthermore, there are options for accelerating the process, which can get a patent granted significantly faster (within a couple of years from filing in some cases), but pros and cons need to be weighed up. Albright IP can advise here on a case-by-case basis.
Do I need to use a non-disclosure agreement (NDA)?
When disclosing an invention to Chartered UK patent attorneys (such as those at Albright IP), there is no need for an NDA. The law automatically considers the discussion about IP with a Chartered UK patent attorney to be confidential.
However, this does not apply to third parties, such as manufacturers, investors, or family.
If the invention must be disclosed to other parties before filing of IP rights (ill-advised due to the risk of breach), it is critical to have a non-disclosure agreement in place. An NDA can also potentially prevent these third parties from taking advantage of you!
What happens if my patent application doesn’t get granted?
Unfortunately, there is never any guarantee of the granting of a patent.
If prosecution falters, whether due to lack of funds or identical prior art meaning that the invention is not patentable, that’s the end of the road. The patent won’t be granted, and there will be no ability to stop other parties from utilising the invention. This is where having multiple types of IP rights protecting a product can be particularly beneficial, such as a design registration to protect the appearance of the product.
However, while the applicant won’t be able to get the financial and exclusivity benefits offered by a patent, a silver lining following publication is that the invention is disclosed. This effectively prevents others from obtaining a patent of the same or a very closely related invention.
What types of intellectual property protection are available?
In some scenarios, a patent application may not be the most applicable form of intellectual property (IP) protection. IP protection can take many forms, with the main types being:
- Patents: Patents protect how an invention functions. A patent application could be considered for the following example cases:
- Mechanical devices (e.g. nail clipper, keyboard, fan).
- Chemical compositions.
- Methods of manufacturing.
- Designs: Registered designs are for protecting the appearance of a product, as opposed to the functionality. Designs are particularly useful when the aesthetics of a product are a key feature, such as in the textile industry or a pattern.
- Trade Marks: Trade Marks protect branding, such as logos, signs, symbols, words or other similar identifiers. All companies have at least a company name, and usually also branding. Trade Marking should be a priority for any company, as a Trade Mark can be used to stop others from using a similar or identical name or logo, riding on the company’s coat-tails and potentially causing reputational damage. Additionally, a trademark is an easy asset to increase the value of the company.
Copyright: Copyright is used to protect original works of authorship, such as literature, music and art. This form of protection may also be applicable when your invention is, for example, a computer program/software, which is not patentable subject matter.
Word of caution: for a product which is to be protected with different types of IP rights, such as with a patent and a registered design, the IP rights need to be filed in a specific order to avoid one type accidentally invalidating another type. Albright IP can advise here.