If you have a new product idea, you may think you should have the idea patented so you can make more money from it by obtaining the exclusive right to manufacture it and possibly sell or license the right to someone else. If you are going to think about patents, you need to have the facts straight.
The reason for a patent
There is a common misconception that patents are the permission to produce and resell a product. A patent is the right in relation to an invention or innovation granting the owner protection against copying or unauthorised use. The purpose of obtaining a patent is to prohibit anyone else from benefiting from your patent without your express permission to do so, and to gain a competitive advantage or monopoly from your unique invention; the patent excludes others from using your product innovation. As long as your idea doesn't infringe on someone else's patent you are free to benefit from it in the marketplace.
You should note that ideas are not patentable; it is the application and/or design of your idea that are patentable.
For example, You can't patent the idea of a car that runs using sugar. You can, however, patent a specific type of engine which runs using sugar – it's not the idea, it's the application. (Read our related article on developing new applications to discover how this simple concept can lead to expanded product innovations in your marketplace.)
Types of patents
Although patent law varies from country to country (usually in terms of innovator's rights), there are three generally accepted types of patents available:
- Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
- Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
A patent may be granted only for an innovation that satisfies the following conditions:
- the invention is new. An invention shall be taken to be new if it does not form part of the state of the art. The state of the art of a patent application is comprised of all public disclosures that were disclosed before the date of filing of a patent;
- the application must be ingenious enough not to be obvious to others in the field;
- It involves an inventive step;
- It is capable of industrial application;
- The grant of a patent for it is not excluded by being contrary to public policy or law.
Before you go to the time, effort and cost of filing an application, you should do a patent search to be sure that no one else has already filed a patent claim on the innovation that you wish to patent. Every country's patent office offers the ability to do patent searches. However, given the very specific and complex nature of patent searches, you may wish to do a preliminary search on your own and, if you find no problems, hire a patent attorney to complete a more comprehensive search on your behalf. You may also want to search to be sure that your proposed application does not infringe on anyone else's patent. For a full guide on UK patents visit the UK Intellectual Property Office website.
You obtain a patent by applying to your country's patent office. Your application will need to include a detailed description of your innovation along with any necessary drawings or engineering diagrams.
Every country has a procedure for reviewing patent applications and rendering a decision, along with a process for appealing decisions.
Patents are typically issued for 20 years. Once you have received a patent, you must label your product with the patent number and date of issue in order to be able to protect your invention from infringement. Once you have filed your patent application, you may label your product with a patent pending notice but this notice has no legal effect; it simply warns that you consider the invention to be patentable and able to be protected from infringement.
Patent laws vary from country to country and you have to file for a patent in each country where you're interested in selling or manufacturing your product. However, the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty make it possible to file for a patent in over 100 countries at the same time as well as providing you protection rights in those countries, even if you are not a citizen.
Obtain Patent Counsel
The information in our primer is the least that you need to know to begin the patenting process. If you believe you have a patentable invention, the money you spend on able patent counsel will be well worth it.