(i) Inventions and patent criteria
Patentability[1]. A patent can be granted for:
- any invention;
- which is susceptible to industrial application (it must be of practical use);
- which is new; and
- which involves an inventive step.
An invention is ‘new’ (i.e. novelty criterion) if it does not form part of the state of the art. The state of the art (or state of technology) comprises everything in the public domain, whether made available by publication, oral description, use or in any other way before the date of filing of the patent application. An invention involves an ‘inventive step’ if, in view of the state of the art, the invention is not obvious to a person skilled in the art.
Patented inventions vs. copyrighted works. Inventions are considered new ideas or solutions to technical problems. Unlike protection of inventions, copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is in the choice and arrangement of words, musical notes, colours and shapes.
From this basic difference between inventions and works of authorship, it follows that also the legal protection differs. Because a patent gives a monopoly right to exploit the invention, such protection is shorter in duration (usually 20 years). The essentials of the invention must be disclosed publicly in an official register. Because the protection of a work of authorship only prevents unauthorised use of the expressions of an idea, the term of protection is much longer, without any risk of damage to the public interest. Also, because copyright law entitles the author of a work to prohibit other persons from copying or otherwise using the work (a) the work is protected as soon as it is created, and (b) a public register of copyright protected works is unnecessary.
Scope of the patent. The scope of the patent is determined on the basis of the ‘claims’ in the patent registration. The patent claims are accompanied by descriptions (e.g. specifications, explanations, illustrations, calculations, examples, drawings) supporting the interpretation of the patent claims. The scope of patent protection is usually a strict, literal interpretation of the wording of the claims. The purpose of the descriptions is to resolve any ambiguity in the claims. The claim does not serve as a guideline for the descriptions.
Scope of patent protection. The scope of patent law protection is a matter of the national patent law of a State in which the patent is granted. Generally, the patent owner’s exclusive rights consist of the following:
- in case of a product patent, the right to prevent third parties (non-licensees) from making, using, offering for sale, selling, distributing or importing the product;
- in case of a process patent the right to prevent third parties (non-licensees) from:
- applying or using the process; and
- making, using, offering for sale, selling, distributing or importing products which are created directly by that process.
If a patent has been granted in a particular jurisdiction, others who wish to exploit the invention in that jurisdiction must obtain the authorisation (e.g. a licence) from the patent owner (or from a licensee of the patent owner who has the right to grant sub-licences). Unauthorised and non-licensed use or application constitutes a crime.
Encouraging inventions. Many large technological companies have an internal association of inventors. Many companies have adopted a policy to reward employees who make an invention. Such a policy facilitates the revelation of inventive ideas within the company and prevents that inventive ideas remain unprotected. In large organisations, this is often the result of a lack of awareness about the existence of inventions or the inventors’ failing to acknowledge the importance of their creations. Also, it incentivises an employee to report a potentially patentable invention and thereby earn a nice bonus. Such policy could also be extended to external suppliers (whose inventions are even less visible).
Identifying a patent. Every patent is registered with a unique number (European patents are preceded by the letters EP). In a patent licence or deed of patent transfer, it is common to include the title which the patent has been given, as well as the date as of which the patent was requested or granted. There are numerous websites with search engines including national patent registers worldwide. Although not strictly necessary, a (licensed or transferred) patent is usually identified by the following catch-all phrase:
Patent means the patent [application] registered under no. [_____] (and entitled [___________]) with priority date [_____], including [national patents issued on such application and] any continuations, continuations-in-part, divisions or additions thereof, reissues, renewals, revalidations, re-examinations, substitutions, extensions and any immediate foreign equivalents of them.
Infringement. Contrary to trademark infringements, any action is typically taken after an infringing party has used the patented invention for some time. In a high-tech market where companies file hundreds or thousands of patent applications per year, also patent infringements are numerous, often not easy to prove and relatively costly to identify and challenge.
[1] Note that the particularities of concepts discussed in this section, such as patentability, the scope of patent protection, prior art, prior use, co-inventorship and utility patents may vary per country. For example, whether an invention is patentable is described here by reference to the criteria of the European Patent Convention (EPC); in other conventions (substantially) the same criteria apply.