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PATENTS & UTILITY MODELS


What is a patent?

Did you know that?

Without a patent the inventor or the applicant would not be able to prevent others from copying the invention. Ignorance that you are infringing someone else patents is no defence.

For society, the value of the patent bargain is that it encourages the investment and the application of the skills necessary to generate and disseminate new technologies, processes and products.

Patent

A patent is a title providing the inventor and/or the applicant with the right to prevent others from exploiting the invention mentioned in the patent. The monopoly is granted for maximum 20 years by the state in return for a full disclosure of the invention.

Patents are concerned with the functional and technical aspects of products, processes, and uses. To qualify for patent protection :

What are the requirements for obtaining a patent?

Your invention must be a patentable matter: Some matters are excluded from patent protection. Most European countries patent laws follow the European Patent Convention (EPC) in providing that a patent can not be obtained for:

  • discoveries, scientific theories and mathematical methods,
  • artistic creations,
  • schemes, rules and methods for performing mental acts, playing games or doing business and programs for computers,
  • presentations of information,
  • methods for medical treatment of humans and animals (as opposed to medical products)
  • plant or animal varieties or essentially biological processes for the production of plants or animals.

Your invention must be novel: Your application may fail due to the novelty criteria if:

  • an identical product or process or use has already been disclosed
  • details of your invention have been publicly disseminated by written or oral means or the invention has been used in public where people could see how it works. Discussing your invention with your immediate fellow researchers, business partners and professional advisers would normally be regarded as implicitly confidential and would not prejudice a subsequent patent application. However as a precaution you should draw up and sign a confidentiality agreement.
  • Your invention must include an inventive step : This criterion implies that the solution your invention gives to a specific problem is not obvious to a person with average knowledge of the technical field.
  • Your invention must be susceptible of industrial application : Industrial application means that the invention cannot be purely theoretical, but it must be possible to apply the invention for practical purposes. Industrial application includes agriculture.
  • Your invention must not be contrary to public order and morality.

What are the requirements for obtaining a utility model?

The rules for utility model registrations vary from country to country, please consult the relevant country information for further information.

How to obtain a patent?

Applying for a national patent

The first step that people usually take in applying for a patent is to file a preliminary application in their own country. When the application is filed, the date of application is recorded and this is called the "priority date". Most countries are signatories to an international convention (The Paris Convention) which guarantees that the priority date of an invention filed in one country will be respected in other countries, provided an application is filed in the other countries within 12 months of the date of filing of the first application.

Details of how to apply for a patent together with the application form and information about other documents needed can be obtained from the national patent office of your country. The application form must be completed and submitted along with the other requested documents to the national patent office. In general, an application for a patent must be accompanied by that following :

  • a specification containing a detailed description of the invention, one or more claims, any drawings referred to in the description or claims and an abstract (a brief description of the invention)
  • the required filing fee.

Patent law and practice and the drafting of a patent specification describing an invention in words which will have legal effect, are complex matters for which the help of a patent attorney is very advisable. You should remember that the contents of the specification determine whether a patent can be granted as well as the scope (set out in the claims) and validity of the granted patent. You will need to file a separate application for each invention.

Once you have submitted your application, you have a 18-month time period to withdraw your application before it is published. This publication releases details of how the invention works to the general public. Before that date, each patent office has held the information in confidence. Experts working for the national patent office will check your application to determine if it fulfils all the patentability criteria. In order to verify if your invention is novel and includes an inventive step a search report will need to be compiled. The search report will list published documents considered relevant in assessing whether the claimed invention is new and not an obvious development of what is already known.

Once the patent office has satisfied itself that the invention is novel and the claims made for the patent are allowable notice of the allowance of the patent will be issued and the patent will be granted.

In Europe : European patent application

A European patent application procedure allows you to obtain protection in those European countries which are members of the European Patent Organization. European patent applications may be filed at :

  • The national patent offices:
  • European Patent Office (EPO), at its Munich, The Hague or Berlin branches.

The grant procedure is based on a single application, filed in one of the official languages of the European Patent Office: English, French or German. The EPO will deal with the application in the language chosen and this postpones translation costs until such time as the patent is granted. You must designate the countries in which final patent protection is sought. After examination, the EPO grants a European patent which has the effect of a national patent in each of the countries designated. Once the patent has been granted you can decide to maintain it in force in some or all of the designated states. If the language of the patent is not an official language of the designated State, a translation into the language of that State must be filed, failing which the patent will not be valid in that State. For further information consult the website of theEuropean Patent Office.

In future you will have the possibility to apply for a Community Patent which will apply in all the member states of the European Community.

Outside Europe : Patent Cooperation Treaty (PCT)

The Patent Cooperation Treaty (PCT) is a worldwide agreement to simplify the filing and processing of patent applications. Approximately 133 countries, including most industrial countries, are party to the treaty. Through a single international application you can apply for a patent in all the countries party to the treaty. You must indicate those PCT contracting states in which your international application is to have effect ("designated States"). The effect of the international application in each designated State is the same as if a national patent application had been filed with the national patent office of that State. Where a designated State is party to the European Patent Convention, the applicant may and, in the case of Belgium, Cyprus, France, Greece, Ireland, Italy, Monaco and the Netherlands, must- opt for the effect of a European (rather than a national) patent application.

PCT applications may be submitted to your national patent office and, if there are no national security constraints, to WIPO in Geneva or to the European Patent Office in either The Hague or Munich. For further information consult the website of the World Intellectual Property Organisation.

How to obtain a Utility Models/Short Term Patents ?


Applying for a national utility model or short term patent

The procedure is basically the same as the one for patents described above. There might be shorter and less complex procedures when applying for utility models and short term patents.

Utility Model in Europe

Utility Models provide an inventor with an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his or her authorization, for a limited period of time. Though similar to a patent, there are two major differences: To obtain a utility model for your invention, the technological progress demanded is less than for a patent. The maximum duration of protection is shorter than for patents. Utility models are a more flexible and less costly way of protection than patents. In that respect this type of protection is particularly suited to certain types of innovations.

Short Term Patents in Europe

Short Term Patents are in some respects similar to utility models. They have been created as an alternative to full term patents.

They were devised in the interests of the smaller inventor who may find that a 20-year patent is unnecessary for his or her particular invention. The period of protection of a short term patent is a maximum of ten years which should suit less technologically complex inventions or inventions not having very long life cycles.

A short term patent can be granted without prior examination of the patentability criteria relating to novelty and usefulness and consequently it can be faster and easier to obtain and cheaper to maintain compared with full term patents.

PDF

Guide on patents

What is the European patent

Forms of legal protection for technical inventions