Patent And Invention

 

What is an invention?

Patents are the most generalized way for protecting the rights of inventors. A patent is an exclusive right granted by the state for the protection of an invention. The patent grants to its holder the exclusive right to use or exploit the invention and prevent third parties from using it without consent. If the holder does not wish to exploit the patent, the holder has the right to sell or grant the rights to another company to commercialize it under a license.

That is, a patent consists of a right granted to an inventor by a state, allowing the right holder to prevent third parties from commercially exploiting the invention during a limited time period, usually 20 years from the filing date of the patent application.

Patents are the principal juridical instrument used to protect an invention.

The system is based on the theory that the financial benefits derived from the exploitation of a patent and the publication of inventions for their public dissemination and use will promote innovation and increase the technical level of a country’s industry, with obvious benefits for its commerce.

In effect, by granting an exclusive right, a patent is an incentive that offers the inventor recognition for the creative activity and material reimbursement for the commercial invention. These incentives in turn boost innovation, contributing to an increased quality of life. In return for these exclusive rights, the inventor is obliged to disclose the patented invention publicly, so that third parties may benefit from new knowledge and thus contribute to technological development.

Hence, disclosure of the invention constitutes an essential requirement in the patent-granting procedure. The patent system is designed with balance between the interests of inventors and the interests of the society.

It is not true that patents are solely granted for complex physical and chemical products and processes, or only to large companies. In general, patents can be obtained in any technological field, from paperclips to complex pharmaceutical products. There are thousands of patents for day-to-day products such as filters, glass bottles, fabrics, or bicycles.

This exclusivity of the patent right is granted for a limited time period: 20 years from the filing date of the application as long as the rightholder keeps paying the annual maintenance fees. It is only valid in the country where protection was sought (territoriality principle).

The term “patent” also refers to the document issued by the corresponding governmental authority in that area.

 

What is an invention?

What characterizes an invention is that it is a solution to a technical or functional problem, not an aesthetic or any other kind of problem. An invention can be a product or process, or both.

The technical problem can be old or new, but in order to obtain a patent, the solution must be novel. Simply discovering something that already exists in nature, which we term a discovery, is not an invention. There must be a human activity involved.

An invention is not necessarily complex. Nevertheless, nowadays, with the level of specialization in different areas of knowledge, the majority of inventions are products of research and development (R&D) activities carried out or financed by companies, research centers, or universities, characterized by requiring a set of human, material, and financial resources optimized to achieve a desired result, which can materialize in the form it was originally proposed or another.

 

What is the difference between a patent and an invention?

A patent is an exclusive right, meaning it allows the patent holder to use the invention for professional or commercial purposes,  exclusively for a specified period (maximum 20 years) in the country in which it was granted. The Patent Office decides whether to grant (or refuse to grant) a patent upon examining the subject matter of the application. On the other hand, an invention is an innovative technological solution (device, method, application, etc.) which is non-obvious and was previously unknown. An invention should not be confused with a patent. An invention may be patented or not. It depends primarily on whether:

it meets the legal requirements (mostly pertaining to novelty, that it involves an inventive step, and has industrial applicability),

patenting the invention serves the needs of the patent holder. Under some circumstances, it might be more advisable to keep the solution secret as know-how.

In essence, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. This means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner’s consent. It’s important to note that patents are territorial rights, and their exclusive rights are generally applicable only in the country or region in which a patent has been filed and granted, following the laws of that specific jurisdiction. The protection granted by a patent typically lasts for a limited period, generally maximum 20 years from the filing date of the patent application.

 

Difference between patentable and non patentable inventions

Patentable inventions are those that fall into specific categories, including processes, machines, manufactures, compositions of matter, and improvements, as long as they meet criteria like originality, enablement, utility, and statutory subject matter. These inventions can be granted patents, which provide exclusive rights to the inventor for a certain period.

Non-patentable inventions include discoveries, scientific theories, mathematical methods, nonfunctioning products, mental task methods, informative presentations, and certain medical/veterinary procedures. Perpetual motion machines, unethical/immoral inventions, and non-technical software/business methods also fall into the non-patentable category. Patents are essential for protecting intellectual property, preventing others from replicating and selling the invention without consent, and encouraging innovation​.

 

Patents: Protecting Inventors and Their Inventions

An invention is a novel machine, design, mechanical process, configuration of substances, or created item.

An inventor is a person whose intellectual work has led to an invention, not just a person who works with an inventor. Note that this means an inventor’s lab assistant might not be considered a co-inventor if the assistant’s work was simply to carry out processes determined by the inventor.

A patent protects an invention by allowing its inventor — or the group who owns the patent — control over who may use the invention. Patent applications are adjudicated by the United States Patent and Trademark Office (USPTO) and are valid for 20 years.

An assignee is a person or group who owns a patent. While this could be the inventor themselves, an assignee could also be the university the inventor works for or the company or organization that funded the inventor’s research.

 

What can be patented?

Improving existing inventions

An invention does not have to be an entirely new device, process or product.

It can be—and is most likely to be—an improvement to an existing invention.

About 90% of patents are for improvements to existing patented inventions.

Headphones have existed for a century but continue to evolve with technology.

Patentability criteria

The criteria for patentable inventions are found in the Patent Act, which is the federal legislation governing patent law in Canada.

How do you know if you have an invention eligible for a patent?

Your invention must be new, useful and non-obvious.

Your invention must be the first of its kind in the world.

It must not be known to the general public in writing or in any other form anywhere in the world before the application is filed.

Your invention must work at a practical level and have a useful function.

It simply has to have a use.

Your invention must be something that a person with relevant technical experience and knowledge would not have thought of.

 

Patent rights

A patent gives you the exclusive right to prevent others from making, using or selling your invention in any manner.

This only applies to countries that have granted you a patent.

It is valid for up to 20 years from the date you file your application.

Value added by patents

Holding a patent can boost investor and stakeholder confidence.

It makes it easier for small and medium-sized businesses to attract financing from investors in order to take their business to the next level.

Patents can also give you a competitive edge and ensure market exclusivity by acting as a barrier for your competitors.

The patent holder is the sole person with the exclusive right to use, sell and manufacture the innovative technology for up to 20 years.

Patents can also be a revenue source.

You can use your patented technology for the purpose of:

Exploiting:You can use, manufacture or sell your invention directly to consumers in the marketplace.

Licensing:You can allow another party to exploit your patent for monthly royalties.

Assigning:You can sell or transfer your patent ownership to another party for an immediate lump sum of money.

Using patents strategically

Commercialize your invention

Turn your patent into dollars!

Getting legal rights to your invention through a patent gives you proof of ownership. This is crucial to gaining the most commercial value.

Turn your know-how into a commercial asset!

Holding a patent may open up opportunities for business growth and job creation.

Consider a licensing agreement. For start-up businesses, licensing is typically the fastest way to generate cash flow.

 

What are some of the benefits of licensing your patent?

Leverage existing manufacturing deals and distribution channels

Access existing markets and benefit from established names

Reinvest in further research and development

Use revenues earned from monetizing your patent to finance further research and development for your company

Export your invention

You must obtain a separate patent for each country where you seek protection.

Consider strategically filing for patent rights in countries where you plan on doing business—to sell or manufacture products, license your technology or assign your IP to another party.

 

Applying for a patent

Be the first to file

Patents are granted to the first person to file an application.

File as soon as possible in case someone else is on a similar track.

Keep secrecy before applying

Keeping secrecy before filing is crucial to prevent others from filing for the same invention before you.

Consider confidentiality and non-disclosure agreements if you must reveal your invention to anyone before you file your patent application.

If you publicly disclose your invention before filing, it may be impossible to obtain a patent because the invention will no longer be considered new.

Search patent databases

Before you file, search for existing patents or patent applications. This will determine if your invention, or a similar one, has been patented already.

 

Why patent inventions?

Since a patent confers legal rights concerning the exploitation of an invention,it allows the owner the best opportunity to profit from the invention by preventing others from copying it. An inventor does not need a patent in order to exploit an invention; but without a patent the inventor would not be able to prevent others from copying the invention.

Inventors are often not in a position to produce or market their invention from their own resources. Patents, being a form of commercial property,provide a basis for owners to negotiate with potential investors or other business partners while preserving their intellectual property rights.

The prospect of gaining profits from this special form of protection serves to promote research activity and to give an incentive for new investment.

 

What is patentable?

In order to be eligible for the grant of a valid patent the invention must be new, involve an inventive step and be capable of industrial application.

• Novelty: An invention is considered new if it does not form part of the state of the art. The state of the art comprises everything made available to the public in any way, anywhere in the world, before the date of filing of the patent application.

Inventive step: An invention is considered as involving an inventive step if it is not obvious to a person skilled in that area of technology, having regard to the state of the art.

• Industrial applicability: The invention must be capable of being made or used in some kind of industry, Including agriculture.

Excluded Subject Matter and exceptions to patentability

Not all inventions qualify for the grant of a patent.

 

The Patents Act

specifically excludes the following subjects from patentability:

(i) Discoveries and aesthetic creations:

• a discovery, a scientific theory or a mathematical method;
• an aesthetic creation;
• a scheme, rule or method for performing a mental act, playing a game or doing business, or a computer program; or the presentation of information.

Although such subject-matter or activities are not patentable their use or application may be patentable. For example, a scheme or method for playing a game is not patentable, but it is possible to obtain patent protection for a novel apparatus for playing a game. Also, the exclusion from patentability of computer programs does not prevent the granting of patents for inventions involving the use of such programs, as long as a technical effect is achieved by its implementation.

While it is not possible to obtain a patent on software per se, patents may be granted for inventions requiring the use of software to achieve their purpose. This, however, is conditional on the software having a “technical effect” when the programme is run. Such effect may, for example, be found in the control of an industrial process or in the internal functioning of the computer itself.

(ii) Methods of medical and veterinary treatments:

Methods of treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body are not patentable. This exclusion does not apply to products, substances or compositions for use in any of these methods, i..e. medicines or surgical instruments.

(iii) Plant and animal varieties or essentially biological processes for their production. Plant varieties may be protected by other means, such as through the Office of the Controller of Plant Breeders Rights. However, if the invention concerns plants and animals and if the technical feasibility of the invention is not confined to a particular plant or animal variety, the invention may be patentable.

(iv) Inventions the publication or exploitation of which would be contrary to public order or morality. This exclusion is subject to the proviso that the exploitation of such inventions is not deemed to be so contrary merely because it is prohibited in law.

 

Types of Patents

There are two types of patents available

(1) Full-term patents

These patents allow the inventor/applicant protection for up to 20 years. For a full-term patent to be granted, the applicant must provide evidence of the invention’s novelty.

(2) Short-term patents:

Short-term patents are designed to assist smaller inventors. These patents can also suit inventions where a shorter market life is expected, or inventions that are not technologically complex. These patents last for a maximum of ten years, and the applicant does not need to provide evidence of the invention’s novelty. This

effectively reduces the costs and length of time involved in getting an invention patented.