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Date added: 02 December 2011

To patent or not to patent? – that is the question! 

Robert McDougall of Phillips & Leigh explains the finer points of patents
 
Robert McDougall
It seems these days, that IP (Intellectual Property) is rearing its head in the news increasingly more often with big companies fighting over Patent rights, having Trade Mark disputes etc.
 
In my career as a patent attorney I’ve seen a lot of people and small businesses fall foul of IP, sometimes through not knowing key facts about IP, and sometimes for not even considering it at all when starting a new business venture!
 
This short introductory article is simply set out to answer some of the most common questions and dispel the most common misconceptions people have about patents.
 
Can I get a single worldwide granted patent?
 
No. Patents are generally granted on a country by country basis. If you want worldwide patent protection, you will need separate patents in all of the countries that you require the protection to be in. For example you cannot use a French patent to stop a competitor making/copying your product in the UK – you need a UK patent for that.  
 
There is no single pan-world patent right. There is also not, at present, a European wide single granted patent right. However, there are streamlined procedures available from different organisations that allow you to centrally apply for patents.  The European Patent Office (EPO) is one such organisation that allows you to submit a single European patent ‘application’. 
 
The EPO will examine and review your application and has the power to grant separate national patent rights in the majority of countries in Europe from your European patent application.
 
What can I get a patent for?
 
The answer depends on which country you want the patent right to be in, but for the purpose of this article we shall assume UK/European law. On the whole, patents may be granted for both products and/or processes that are ‘industrially applicable’ – i.e. not purely abstract in nature. 
 
The law does however have some types of invention that are excluded from being patentable even if they are industrially applicable, including methods of surgery, purely business methods, artistic works, as-well as a few others. 
 
If you have made an invention that is industrially applicable and not excluded, then the patent office requires your invention to be both novel (new) and inventive (not obvious even if it is new) before it can grant you a patent. 
 
Novelty is a worldwide requirement and requires your invention not to have been made available to the public anywhere in the world. Being ‘available to the public’ covers all forms of disclosure, written, verbal or otherwise. 
 
For example, if before filing a patent application you were in Australia and verbally disclosed full details of your invention to a room full of random people, then that disclosure could prejudice you filing patents for your invention in most countries around the world. It is therefore very important to keep your invention secret until you file your patent application. 
 
If you do need to talk to external parties about your invention before you file a patent application, make sure that any meetings and correspondences are in strict confidence. Preferably arrange for a Non-Disclosure Agreement (NDA) between you and the external party before you start having discussions regarding the invention.
  
Phillips & Leigh Swindon
  
Do I need a patent to make my product, use my process?
 
No. There is nothing currently in the law that states you absolutely need a patent to make your product, however whether someone else out there has a patent right to stop you is another question; if you are going to start launching products, it is advisable to check out what other IP is out there already!
 
Does a patent give me a legal right to make my product/use my process?
 
No. This is one of the most common misconceptions about patents. If you have a granted patent, it only gives you the right to stop others making products (or using processes) covered in the claims of your granted patent. 
 
What rights does a patent give me?
 
Firstly, in the UK and most other countries, you can only take preventative legal action against a third party once your patent is granted. In the UK, you cannot sue someone using a patent ‘application’. 
 
The scope of protection of your patent is dependent upon what is contained in the ‘claims’ of your granted patent. The claims of your patent should describe the key essential features of your invention.
 
A granted UK Patent gives you the right to stop others within the UK making products covered by your claims, disposing of the products (for example selling) and keeping the products. It also allows you to stop the importation of the products into the UK. If your granted UK patent claims a process then your patent allows you to stop others in the UK using the process or offering to use the process as well as the disposal, use or importation of a product directly made by the process.
 
How long does my patent last for?
 
In the UK and the majority of major industrial countries in the world, your patent can last for up to 20 years from the date you file your patent application. The continuance of your patent for the full duration of 20 years requires you to pay ‘renewal’ fees. For a UK Patent, these are due annually after your patent is granted.
 
Can I keep my invention secret to the world and still have a granted patent?
 
Generally, no. The standard procedure for the patent office is to publish your patent ‘application’ around 18 months after you file it. This publication of the application is not a grant of the patent but a simple public disclosure of your application to give the public a chance to comment on whether your application should be granted.
 
Are patents only worthwhile for large businesses?
 
While it may seem from the news that patents are only used by large corporations in fighting technology wars, many smaller companies, even single individuals reap the benefits of having a targeted patent strategy. One of the more un-measurable benefits of patents is the ‘keep off the grass’ effect. By having a patent in place for your product, it is a clear warning sign to your competitors not to copy your product. 
 
Dr Robert McDougall is a Chartered UK and European qualified patent attorney working for Phillips & Leigh. Phillips & Leigh are a London based firm of Patent and Trade Mark Attorneys who have just set up a satellite office in Swindon. 
 
For further information or to get in touch please visit the Phillips & Leigh website via the link below.
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