When a company comes up with “new” and “inventive” piece that has capable of industrial application it is possible to patent the idea. 

This is a long one by the way!

In order to qualify it must have a novel element that is “not known in the body of existing knowledge in its technical field” (wipo.int), therefore if an invention is obvious to man skilled in the art it will fail the patent. An example of this is where GlaxoSmithKline lost its patent because it covered “formulations containing 2 to 8 mg of rosiglitazone, or its pharmaceutically acceptable salts” whilst it was successfully argued by competitors that a “1995 article in the Journal of Clinical Pharmacology, which cited a 4-mg level of the compound, was scientific knowledge in the public domain” (Parry, J. 2005) thus invalidating the patent application.

There are some exclusions to filing a patent such as if the invention is “a discovery; a scientific theory or mathematical method; an aesthetic creation such as a literary, dramatic or artistic work; a scheme or method for performing a mental act, games or business methods; the presentation of information; or a computer program” (Gowers Review of Intellectual Property, 2006).

If a patent application is successful it prevents others from copying, manufacturing, selling, and importing the invention without the patent owner’s permission. It also acts as a deterrent to stop others exploiting the creator’s invention, however should this occur then it also provides a basis for legal action to be taken and damages claimed from the infringer. This effectively creates a monopoly for a limited period for the owner; in the UK this is 20 years protection. In other countries this varies such as in the USA where 3 types of patent can be granted, Utility, Design and Plant Patents which last for 20, 18 and 14 years respectively.

A patent applied for in the UK will only cover the UK, however by gaining patents in other countries it is possible to protect the invention further. This is a move many companies are finding beneficial in countries such as China where intellectual property laws are often exploited as foreign companies expand and develop their manufacturing activities.

Patents can also aid companies by giving them a competitive edge. With some patents the company may not have the necessary resources or technology to exploit them, when this happens licensing is a viable way of obtaining royalties, or the establishment of the necessary technology. Licensing can also give the inventor access to a new market that they previously would have found inaccessible. In this way the act of patenting can encourage innovation; which helps to progress society and assures that the quality of human life is continuously enriched.

Should Caru Design develop an invention which they feel should be patented they will have to file an application. The first thing the company has to do is ensure that it meets the criteria previously stated, it should also ensure that the invention isn’t made public until the patent is filed. This is because if the idea has even been disclosed outside of the company then it becomes not patentable failing on lack of novelty. If there are no previous disclosures then the next stage is filling out a form with a description of the invention and must contain enough information for another party to carry out. This usually includes a background to the invention along with the problem it solves, as well as what the invention does. Also included in the application is a drawing which shows the technical features and construction of the invention, aiding in the explaining anything stated in the description. This application is then sent to the Intellectual Property Office along with a “Request for Search” form and the relevant fee. The “request for search” form and fee is used by the Patents Office to search for any other inventions that correspond to the application, hence proving that the invention is new.

After the examination and search stage has been conducted the application is ready to be published as long as no conflicts were found. Should there be conflicts then depending on the severity and reasoning the application may be rejected.

If there are no problems at this stage however the patent application will then be published becoming available to the public and permanently searchable. Once it’s been published it is possible for others to question and issues to be resolved, the inventor must also file for a “substantive examination” within 6 months of publication. By doing this the office thoroughly examines the application to check it meets the requirements. If it does then a patent is granted, published and certified. This process traditionally takes 2 to 3 years from application to granting, however if the invention is deemed to have an environmental benefit then the process can be fast tracked through the Green Channel program. The above is the process is for application within the UK, whilst the application process will be similar in foreign countries, it would be wise for Caru Design to seek a Patent Attorney should they wish to secure their intellectual property abroad since some stages will be different.

Once a patent is published anyone can view it, as such they can be used as resources. Whilst a patent with on-going protection prevents commercial replication without permission, any inventions out of patent are open to reproduction and use. This can act as a starting point for a company to work off in order to create their own design. Current patents allow inventors to avoid “duplicating research and development effort” (wipo.int) and prevent infringing with their own progress. It also allows them to estimate any potential value relating to their patents and even see if they have a novel idea, preventing wasted fees and time by failed applications.

Another method of using patents is by licensing them. This can help develop products and ideas further by providing liquidity in the market.  Using licensing also allows a company to specialise on a certain aspect whilst using the licensed parts reduces the companies costs and development time; an example of this is in the telecommunications industry where a “typical mobile phone now contains thousands of patented inventions and requires collaboration between hundreds of companies” (Gowers Review of Intellectual Property, 2006). By buying and selling licenses to patents it is possible to expand the market with more inventions being taken up creating a collaborative innovation system.

It should be noted however whilst most uses of patents require licensing there are several that don’t and are defensible against infringement claims. These include “accidental infringement” where the invention is manufactured accidentally, although true deniability is difficult to prove; or if the user is able to prove that they were a “prior user” of the invention. Other acts which don’t infringe are if the alleged infringement is done “privately or for non-commercial purposes”, as well as acts done for “experimental purposes” with relation to the subject matter of the patent.

In the next discussion we will take a look at design rights!