Patent cover “inventions”: creating something that has never existed before. Not every invention is patentable, but every patent must involve an invention. Patents consist of a set of monopoly property rights over the thing invented for an amount of time (usually 20 years). The patent monopoly grants the inventor the right to prevent unauthorised use of the invention, including over people that completely independently create the same invention.

Registration

The stronger rights associated with patents mean that they are harder to get. Patents require an application to the appropriate governmental office, such as the UK Intellectual Property Office (UK IPO), the European Patent Office (EPO), or the United States Patent and Trademark Office (USPTO). These offices then examine the application and decide whether or not to grant a patent. If granted, the resulting patent will be published in a register so that others can see exactly what is patented.

Because of it requires registration, internationally you will have to ask and be granted a patent in each jurisdiction where you’d like one. There are international treaties and regional patent offices (such as the EPO) that can facilitate this process.

Standards of patentability

In order to be patentable, generally the invention must be:

• New (also known as “novelty”);
• An example of an “inventive step” (also known as “obviousness”);
• Industrially applicable; and
• Not covered by an exception on patentability.

You should consult a suitably qualified legal professional about any patentable aspects of your business, especially as patents can get quite complicated. It is important however to keep in mind that what is new or novel is judged based upon all publicly available information at the time of the priority date, which will likely be the date of the patent application (with an exception for the United States). The set of publicly available information available at the priority date is known as “prior art”.

Prior art includes information that you make publicly available, thus publishing an article, issuing a press release, or giving away information without an NDA about your idea can defeat your ability to patent it. If you are considering applying for a patent, you should strictly limit to whom you disclose your invention.

Boundaries of patentability

The patentability of business methods and software as a practical matter vary widely between jurisdictions, with changes forthcoming in several jurisdictions as of this writing. Plant varieties also vary in their patentability as do certain areas of medicine. Generally most systems don’t have to grant patents in areas that threaten the general public order or contravene morality, such as patenting a method of assassination.

Patents compared to copyrights

In terms of the idea/expression dichotomy discussed earlier in copyright, patents protect the “idea”, which can take different forms in how it is implemented. Copyright also doesn't restrict those that independently create the same expression (though proving independence can be quite tricky). Patents in contrast do give rights to the patent holder against those that completely independently create the same invention and last for a comparatively shorter time (20 years versus life of the author plus 70 years).

Patent rights

Patents cover both products and processes. The rights of the patent holder broadly include:

• For product patents, rights against anyone using, making, disposing, or importing the product; and
• For process patents, using the process or using, making, disposing, or importing any product produced by the process.

As you can see the rights granted by a patent cover a quite broad range of activities over both actual products and processes to make products (and those resulting products).

Patents for entrepreneurs and investors

Patents can play an important role in any IP strategy as they grant a very powerful set of rights to their owner. Some thoughts to consider with patents in any business:

• They may be bought and sold similar to tangible assets such as office equipment;
• Obtaining and keeping patents involves a number of costs, which can easily get out of control. Having a strategy behind patenting allows cost control while still meeting the needed level of protection for the business;
• Patents ultimately involve disclosing the idea to the world – trade secrets may be a better route of protection as they can potentially last longer and don’t give any advantages to competitors;
• Patents can be useful as a counter-threat to competitors should they bring an infringement suit against a business; and
• Groups of patents in the same area can increase the difficulty of competitors “inventing around” the core area of technology for a business.

Like all areas of IP, businesses should address their role as both producers and consumers of patents in order to effectively build value and limit risk.

This article by ipVA is part of a series by ipVA on the basics of IP and business known as the Intangible Handbook. ipVA provides IP strategy services and products that help businesses and investors better understand and manage IP. For more, see the rest of our site or get in contact.