|
The Patent System
The purpose of the patent system is twofold:
To encourage technical innovation by giving innovative companies and individuals monopoly protection which will enable them to exploit their own inventions for a limited period (20 years in the UK and most countries) free from competition from third parties. Without this protection many companies simply would not be able to operate, as they would have no way of preventing competitors making direct copies of their products; it would make more commercial sense for companies to copy others' products rather than waste money on R & D which could never be recouped.
To encourage the dissemination of technical information, a company applying for a patent has to provide a written description of the invention, and this written description is subsequently published by the Patent Office for all to see. Then, at the end of the 20-year monopoly period, or earlier if the company has lost interest in the patent before that and has allowed it to lapse, the invention becomes free for anybody to use.
Thus, the patent system can be considered as a sort of agreement between an inventor and the State: in return for the inventor agreeing to disclose his or her invention to the world, the State will give him or her monopoly protection on it for a limited period.
Patents
Patent protection can be obtained for most types of new, technically-based inventions, whether articles or processes. More specifically, a valid patent can be obtained in the UK and Europe only if all of the following criteria are satisfied:
(a) The invention is new:
(b) It involves an inventive step;
(c) It is capable of industrial application; and
(d) It does not fall into one of the excluded categories
Novelty
An invention is said to be new, for this purpose, if it does not form part of what is known as 'state of the art'. The state of the art means everything which, at the date of filing the patent application, has been made available to the public by any means. This is a strictly interpreted expression and a single disclosure by the inventor to another person (other than in confidence) before filing a patent application is enough to invalidate any resultant patent. A patent would also be invalid if, before filing the application, the invention were described in any publicly available document, or if it were used in public, or, in the case of a product, if any sales were made. You cannot protect something which is already publicly known.
If the inventor discusses the invention with others in confidence, however, that does not count as a public disclosure. Thus, in a typical case an invention made in a company research department might be discussed, in confidence, with others in the research department, and also perhaps with management and the legal department before a decision to file a patent application is made. These discussions, in themselves, will not invalidate any subsequent patent.
Inventive Step
An invention is said to involve an inventive step if, at the time that the patent application is filed, it is not obvious to a person skilled in the art. The requirement for an inventive step is intended to prevent patents from being granted on inventions which amount to no more than trivial or obvious developments of what has been done before. In practice, however, the amount of inventive development required is small, at least in order to obtain a patent in the UK.
Industrial Applicability
An invention is said to be capable of industrial application if it can be made or used in any kind of industry, including agriculture. There are few otherwise-patentable commercial articles that would fail to qualify for patentability because of this criterion. Almost all such articles are capable of being made in industry, even if they may not be capable of being used in industry.
A process, on the other hand, will not qualify under this criterion if it is of a completely non-technical nature.
There are two processes which the UK Patents Act specifically defines as not being capable of industrial application, and which are therefore not patentable:
(a) Methods of treatment by surgery or therapy, for use on humans or animals; and
(b) Methods of diagnosis for use on humans or animals.
Products for use in such methods (e.g. drugs) are however patentable provided that they meet the other criteria. Also, legal decisions have established a way of protecting the industrial aspects of a new therapeutic or diagnostic use of an old product.
Excluded Categories
1. Not inventions
The following are declared by the UK Patents Act and European Patent Convention not to be inventions, and cannot therefore be patented:
(a) Discoveries, scientific theories or mathematical methods;
(b) Literary, dramatic, musical or artistic works or any other aesthetic creation whatsoever (i.e. anything more properly protected by copyright);
(c) Schemes, rules, or methods for performing mental acts, playing a game or doing business;
(d) Computer programs;
(e) The presentation of information.
However, it is only the things above, as such and on their own, which are excluded: a method of operating a machine tool would not, for example, be excluded even though in practice the method might be defined by means of a computer program. Computer programs which do something technical can normally be protected by obtaining a patent which covers the underlying algorithms or logic.
2. Patent not to be granted
Patents cannot be granted for the following:
(a) Inventions likely to lead to offensive, immoral or antisocial behaviour (although an invention is not necessarily excluded just because it is prohibited under UK law);
(b) Plant or animal varieties, or biological processes for the production of plants or animals (micro-biological processes and the products of such processes are, however, acceptable).
For further information in connection with the patents system, please contact us at ks@kstrode.co.uk.
_____________________________
© Kilburn & Strode LLP, 1998 - 2010
|
