A patent is an exclusive right conferred by the state during a limited period on a new invention, implying an inventive step and susceptible of industrial application. This title is awarded on a temporary way, for a period of 20 years.
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Obtaining a patent is of crucial importance for any inventor. The patent is to preserve and monetize any invention, and allow other advanced to see the day. It is the best way for the inventor to guard against any usurpation of his invention without his permission.
- If do not have a patent on your invention, a third person may copy and use without your agreement, and without your benefit.
- A third party may also make the application on your behalf, and steal your rights and inventor’s benefits.
- Even if you manage to keep the secret, it may be that another inventor came to the same realization as you. If he files a patent application, then it may negate your authority to operate your own unprotected invention.
Patent protection means that the invention can not be realized, used, distributed or commercially sold without the consent of the patent owner during the life of the patent in the territory where it was granted.
To meet the criteria of patentability, the invention must principally fulfill the three following criteria:
- The novelty is that nothing as similar to your invention which has been made available to the public anywhere in the world before you conceived the idea.
- Inventive step is to say that the invention does not ensue in an evident manner from the state of the art of a skilled man.
The skilled person: means a practitioner with general technical knowledge in the relevant technical ﬁeld.
Industrial application: an invention is considered as susceptible of industrial application if it has specific, probative and credible utility,
The Patent is granted to the first inventor who files an application. It is therefore advisable to file your application as soon as possible after the development of your invention. Even if you demonstrate that you have developed the invention the first, your application will be rejected if another inventor filed his application before you.
The applicant is principally the owner of the patent, possibly in conjunction with others, for example, when a part of the invention was sold or when several inventors have a common interest in the patent. A patent can of course be transferred to another person or to be licensed.
A patent application should contain:
- the duly completed form B1,
- A description of the invention,
- An abstract (summary) of the invention,
- One or more claims,
- any drawings mentioned in the description.
In case of appointment of a representative, his power must be submitted.
If the inventor is an employee, the patent ownership will depend on the conditions under which the invention was created: whether the employment contract provided for en inventing activity corresponding to the employee’s actual functions or for conduct in the research the employee has been specifically entrusted with, or whether the invention was created by the employee outside of these situation. However, if the employer fills the patent application, he is required to compensate the inventor according to Article 18of Law 17/97.
It is important to file a patent application before disclose to the public features of your invention, either through of scientific publications or in the promoting campaigns of a new product for example. In general, any invention is made public before filling a patent application will be considered as relevant to the state of art. If you must disclose your invention, for example, to an investor or a potential business partner before filing a patent application, the disclosure must be a confidentiality agreement.
The extent of the protection is defined by the claims of the patent as it is delivered.
The claims as delivered define the extent of protection. Also, third parties can not exploit the technical characteristics claimed without the consent of the patent holder. All that is described but not claimed is not protected and can be operated without the consent of the owner. As it is not a patent is issued, the claims are subject to change during the grant procedure.
A patent is efficient only in the country in which it is granted and in force: outside this territory, anyone is free to use the invention. If you want to operate it in another country, you must protect it in this country. (See international filing)
Following receipt of the preliminary search report, the applicant can amend claims, in the light of the written opinion established by the patent examiner, within the extended initial description and, if necessary, submit observations on the relevance of cited documents without exceeding a period of three months from the date receipt of the report.
The most optimal and economical way to extend the protection on an international level is through the PCT procedure (reference to the PCT procedure).
Paying your annuities maintains your patent in force for a maximum period of 20 years. If you do not pay annual fees, your invention falls into the public domain and everyone is free to use it without restriction.
The patent owner can exploit his patent in the company, and make thus the internal valuation of this asset. He can also sell his patent or rent it under a license contract. In terms of communication, the patent allows to put forward the innovative qualities of the company.
If your product generates significant revenues, it will lead to greed sooner or later. It is your (or your licensees) to be vigilant and enforce your rights. It is also up to you to decide what action to take.
- Send an email (or termination order) asking the person or company infringes your patent to renounce its activities. This approach of ten solves the unintended conflicts.
- Look for an amicable settlement, which will be shorter and less expensive than court proceedings. For this, consult an expert on patents.
- Attempt to bring a law suit to request (interim injunction) and obtain, with the help of the police, a search of the premises of the offender. The court considers the infringing your rights, and decide the amount of compensation.
(link to Right Defense).