The term “patent” is related to “disclosure”. So, in broad terms, to patent something means not only to protect the invention (a solution of a technical problem), but to disclose the solution as well. Looking at patenting from a different perspective, a patent is a legal title that gives the owner the right to exclude others from the commercial exploitation of the patented invention in a certain geographical area for a certain period, usually 20 years.
In order to get a patent, you have to file an application with the organization that has the authority to issue this title within the legal system in question. The filing date is an important milestone in the life of a patent. The organization where an application is filed is normally the industrial property office of a country, or of a group of countries cooperating in this matter. In the USA this is the United States Patent and Trademark Office (USPTO). In Europe there is a regional office, the European Patent Office (EPO), which, after a single procedure, grants patents for up to 38 cooperating countries.
The owner of the patent right is not always the inventor. In most legal systems the person that files the application for a patent, gets the patent as well. That could well be the employer of the inventor if the law says so.
An invention is usually a device, a method, a product or a process that has some technical relevance, meaning it solves a technical problem. But patenting is subject to certain conditions. In order to get a patent, the invention has to be new, inventive, fully disclosed and find application in industry. Broadly speaking, new means that the invention should not have been published before the filing date of the application for a patent. Quite difficult for academic researchers who seek broad publicity with their research. Inventive means that the solution of the technical problem should not be obvious to a technically skilled person. Full disclosure (also known as “enabling disclosure”) is there to secure technical progress in general. This is also one of the main reasons behind the concept: the knowledge behind the invention is disclosed so that others can push technology further.
But what happens if the applicant for a patent wishes to protect the invention beyond the local borders? Not a problem, because the applicant can file follow-up patent applications in other countries, and hopefully get protection in those countries as well. In Europe a single filing with the EPO can lead to protection in up to 39 states. Such follow-up applications should normally be filed within 12 months from the filing date of the first application, which gives the applicant certain advantages. Anyway, patenting is a complex and usually costly procedure, and anyone is advised to get professional support from a so-called patent attorney.
And if the applicant wishes to have “global” protection? Well, there is still no “world patent”, but there is a way out: one can file an “international application” with the World Intellectual Property Organization (WIPO). This kind of application is equivalent to provisional applications with up to 155 states. What does the applicant get? An indication of patentability and the right to file patent applications in any of these 156 states within 30 months from the initial patent application.
I already see some questions coming up. For instance, some more detailed information on the conditions for patenting? Or the interrelation between the various ways to get a patent, starting with a national office, or starting with an international application? Or, even more intriguing, how to reconcile the urge of academic researchers to publish their papers as soon as possible on one hand, and the need to keep the invention secret before applying for a patent on the other?
These and other matters will be dealt with in future postings. Just be sure to watch this space!
JAN STUDIO