Frequently Asked Questions: Patents

A patent is an exclusive right granted for an invention. In other words, a patent is an exclusive right to a product or a process that generally provides a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the right to the invention to someone else, who will then become the new owner of the patent. Once a patent expires, the protection ends, and an invention enters the public domain; that is, anyone can commercially exploit the invention without infringing the patent.

A patent owner has the right to decide who may – or may not – use the patented invention for the period in which the invention is protected. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner's consent.

Patents may be granted for inventions in any field of technology, from an everyday kitchen utensil to a nanotechnology chip. An invention can be a product – such as a chemical compound, or a process, for example – or a process for producing a specific chemical compound. Many products in fact contain a number of inventions. For example, a laptop computer can involve hundreds of inventions, working together.

Patent protection is granted for a limited period, generally 20 years from the filing date of the application.

Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region.

Patent rights are usually enforced in a court on the initiative of the right owner. In most systems a court of law has the authority to stop patent infringement. However the main responsibility for monitoring, identifying, and taking action against infringers of a patent lies with the patent owner.

Licensing a patent simply means that the patent owner grants permission to another individual/organization to make, use, sell etc. his/her patented invention. This takes place according to agreed terms and conditions (for example, defining the amount and type of payment to be made by the licensee to the licensor), for a defined purpose, in a defined territory, and for an agreed period of time.

A patent owner may grant a license to a third party for many reasons. The patent owner may not have the necessary manufacturing facilities, for example, and therefore opts to allow others to make and sell his/her patented invention in return for “royalty” payments. Alternatively, a patent owner may have manufacturing facilities, but they may not be large enough to cover market demand. In this case, he/she may be interested in licensing the patent to another manufacturer in order to benefit from another income stream. Another possible situation is one in which the patent owner wishes to concentrate on one geographic market; therefore the patent owner may choose to grant a license to another individual/organization, with interests in other geographical markets. Entering into a licensing agreement can help to build a mutually-beneficial business relationship.

Unlike selling or transferring a patent to another party, the licensor continue to have property rights over the patented invention.

Patented inventions have, in fact, pervaded every aspect of human life, from electric lighting (patents held by Edison and Swan) and plastic (patents held by Baekeland), to ballpoint pens (patents held by Biro), and microprocessors (patents held by Intel, for example).

Patents provide incentives to and protection for individuals by offering them recognition for their creativity and the possibility of material reward for their inventions. At the same time, the obligatory publication of patents and patent applications facilitates the mutually-beneficial spread of new knowledge and accelerates innovation activities by, for example, avoiding the necessity to “re-invent the wheel”.

Once knowledge is publicly available, by its nature, it can be used simultaneously by an unlimited number of persons. While this is, without doubt, perfectly acceptable for public information, it causes a dilemma for the commercialization of technical knowledge. In the absence of protection of such knowledge, “free-riders” could easily use technical knowledge embedded in inventions without any recognition of the creativity of the inventor or contribution to the investments made by the inventor. As a consequence, inventors would naturally be discouraged to bring new inventions to the market, and tend to keep their commercially valuable inventions secret. A patent system intends to correct such under-provision of innovative activities by providing innovators with limited exclusive rights, thereby giving the innovators the possibility to receive appropriate returns on their innovative activities.

In a wider sense, the public disclosure of the technical knowledge in the patent, and the exclusive right granted by the patent, provide incentives for competitors to search for alternative solutions and to “invent around” the first invention. These incentives and the dissemination of knowledge about new inventions encourage further innovation, which assures that the quality of human life and the well-being of society is continuously enhanced.

There are numerous conditions that must be met in order to obtain a patent and it is not possible to compile an exhaustive, universally applicable list. However, some of the key conditions include the following:

• The invention must show an element of novelty; that is, some new characteristic which is not known in the body of existing knowledge in its technical field. This body of existing knowledge is called “prior art”.
• The invention must involve an “inventive step” or “non-obvious”, which means that it could not be obviously deduced by a person having ordinary skill in the relevant technical field.
• The invention must be capable of industrial application, meaning that it must be capable of being used for an industrial or business purpose beyond a mere theoretical phenomenon, or be useful.
• Its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, methods for medical treatment (as opposed to medical products) or computer programs are generally not patentable.
• The invention must be disclosed in an application in a manner sufficiently clear and complete to enable it to be replicated by a person with an ordinary level of skill in the relevant technical field.

A patent is granted by a national patent office or by a regional office that carries out the task for a number of countries. Currently, the following regional patent offices are in operation:

• African Intellectual Property Organization (OAPI)
• African Regional Intellectual Property Organization (ARIPO)
• Eurasian Patent Organization (EAPO)
• European Patent Office (EPO)
• Patent Office of the Cooperation Council for the Arab States of the Gulf (GCC Patent Office)

Under such regional systems, an applicant requests protection for an invention in one or more member states of the regional organization in question. The regional office accepts these patent applications, which have the same effect as national applications, or grants patents, if all the criteria for the grant of such a regional patent are met.

There is currently, no universal, international system for the grant of patents.

In general, applicants can prepare their patent applications and file them without assistance from a patent attorney. However, given the complexity of patent documents and the legal skills required, such as claim drafting, it is highly advisable to seek legal assistance from a patent attorney/agent when drafting a patent application.

Furthermore, the legislation of many countries requires that an applicant, whose ordinary residence or principal place of business is outside the country, be represented by an attorney or agent qualified in the country (which usually means an agent or attorney who resides and practices in that country). Information on the qualified attorneys and agents can be obtained directly from national and regional IP offices.

The costs vary considerably from country to country (and even within a country). As the official fees vary widely from country to country, please contact the relevant national or regional patent office which will be able to give you details on the fee structure. Consult our list of national and regional intellectual property offices.

The cost of patenting an invention depends on factors such as the nature of the invention, its complexity, patent attorney’s fees, the length of the application, and possible objections raised during the examination by the patent office. Some countries offer discounts to small- and medium-sized enterprises and applicants filing the application online. In addition, some countries allow expedited examination upon payment of additional fees.

In addition to the national official filing fees, once a patent is granted by the patent office, you must pay maintenance or renewal fees, generally on an annual basis, to maintain the validity of the patent.

In case you decide to patent your invention abroad, you should also consider the relevant official filing fees for each country in question, the translation costs, and the costs of using local patent agents, which is a requirement in many countries for foreign applicants.

At present, you cannot obtain a universal “world patent” or “international patent”. Patents are territorial rights. In general, an application for a patent must be filed, and the patent granted and enforced, in each country in which you seek patent protection for your invention, in accordance with the law of that country. Therefore, one way of obtaining patents in a number of countries is to file a national patent application with each relevant national patent office.

In some regions, a regional patent office, for example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents. These have the same effect as applications filed, or patents granted, in the member states of that region. This means that, in certain regions, you can obtain a regional patent from a regional patent office, which is valid in some or all of its member states.

If you are seeking patent protection in a number of countries worldwide, a good option is to file an international application under the Patent Cooperation Treaty (PCT), administered by EIIPO. Any resident or national of a state party to the PCT (contracting state) can file a single international application which has the effect of a national patent application (and certain regional patent applications) in some or all PCT contracting states. In some cases, this can be a more straightforward choice than choosing to try to submit individual applications in each and every country in which you require protection. Find out more about the PCT System.

The first step in securing a patent is the filing of a patent application. Many patent offices provide a specific form to fill in. In some patent offices, you can file a patent application on line.

In the patent application, in general, you must describe the title of the invention, as well as provide an indication of its technical field. You must also include the background to and a description of the invention, in clear language and enough detail that a person with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied by visual materials such as drawings, plans, or diagrams to better describe the invention and an abstract, which contains a brief summary of the invention. You must also clearly and concisely define the matter for which patent protection is sought in the “claims” part of the patent application.

In addition, depending on the applicable patent law, you may need to submit various kinds of statements, declarations or supporting documents to a patent office. In view of the complexity it is recommended that you consult a patent attorney or a patent agent to prepare a patent application.

The procedures vary significantly from one country to another, so it is impossible to provide an exhaustive step-by-step overview. If you wish to research a country’s legislation in the field of patents independently, you can browse the EIIPO Lex database of intellectual property (IP) legislation from around the world.

However it is recommended that you consult either a practicing lawyer specializing in IP or the relevant IP office. Consult our directory of national and regional IP offices.

The grant of a patent can be challenged either via a patent office or in a court of law. A court may invalidate or revoke a patent upon a successful challenge by a third party. In addition, many patent offices provide administrative procedures that allow third parties to oppose to the grant of a patent (including so-called "opposition systems"), for example, on the basis that the claimed invention is not new or does not involve an inventive step.

Procedures for challenging patents differ from country to country. Find out more about opposition systems.

In some countries, patent protection may be extended beyond 20 years or a Supplementary Protection Certificate (SPC) may be issued in very specific cases. The extension aims to compensate for the time expended on the administrative approval procedure before products can be put on the market. The time taken for this procedure means that the patent owner may sometimes not be able to benefit from his right for a considerable period of time after the grant of the patent.

Possibly, but laws and practices in this regard can differ from one country or region to another. For example, in some countries, “inventions” within the meaning of patent law must have a “technical character”. In other countries, such requirements do not exist, meaning that in these countries software is generally patentable subject matter.

However this does not mean that all software will be able to be patent protected. In order to obtain a patent, a software invention must not fall under other non-patentable subject matter (for example, abstract ideas or mathematical theories) and has to fulfill the other substantive patentability criteria (for example, novelty, inventive step [non-obviousness] and industrial applicability [usefulness]).

It is therefore recommended that you consult a practicing lawyer specializing in intellectual property or the intellectual property offices of those countries in which you are interested in obtaining protection. Consult our directory of national and regional intellectual property offices to get in contact with a local IP professional, or browse the EIIPO Lex database of intellectual property legislation from around the world.

Find out more about using patents to protect software and business methods.

Should a patent turn out not to be a viable option for your software-related invention, then using copyright as a means of protection may be an alternative. In general, computer programs are protected under copyright as literary works. The protection starts with the creation or fixation of the work, such as software or a webpage. Moreover, in general, you are not required to register or deposit copies of a work in order to obtain copyright protection.

However, according to a well-established principle, copyright protection extends only to expressions, not to ideas, procedures, methods of operation, or mathematical concepts as such. Thus many companies protect the object code of computer programs by copyright, while the source code is kept as a trade secret. Find out more about copyright.

Whether you can obtain patent protection for an app depends on which element of your app you wish to protect. If you want to protect a technical idea or feature relating to the app, patent protection is a potential option. Depending on the applicable national law, the software that runs your app may be able to be protected by patents if it has certain technical features. You must be mindful however that your technical idea must meet all of the patentability requirements to obtain patent protection, and it may take years to get a patent.

In addition, it is important to ask yourself which element(s) of your app should be protected from free use by competitors. The software that runs your app can be protected by copyright (potentially also by patents, as described above). If you are interested in protecting logos or signs contained within your app however, you should consider protecting them using trademarks. Literary and artistic works included within your app, such as original databases, musical works, audiovisual works, works of fine art and photographs, are protected by copyright. Graphical objects and layouts can be protected using industrial designs.

Find more about the various types of intellectual property rights.

Please see the questions and answers under the topic “Patent Information ”, in particular, the answer to the question “Where can I find patent information ?”.

EIIPO Lex provides easy access to intellectual property legislation from a wide range of countries and regions as well as to treaties on intellectual property.

Many national or regional patent offices also provide information concerning national or regional legislation on their websites. Consult our list of national and regional intellectual property offices.

No. Patents are granted by patent offices in exchange for a full disclosure of the invention. In general, the details of the invention are then published and made available to the public at large.

It should be noted that publication can take place at various stages of the procedure. In some countries, the patent document is only published after the granting of a patent. In other countries, patent applications are generally published 18 months from the filing date or, where priority has been claimed, the priority date (for more details, see the website of your national IP office).

It is important to file a patent application before publicly disclosing the details of an invention. In general, any invention which is made public before an application is filed would be considered “prior art ” (although the definition of the term “prior art” is not uniform at the international level, in many countries, it refers to any information which has been made available to the public anywhere in the world by written or oral disclosure before the filing date).

In countries which apply the above definition of the term “prior art”, an applicant’s public disclosure of an invention prior to filing a patent application would prevent him/her from obtaining a valid patent for that invention, since the invention would not comply with the novelty requirement. Some countries, however, allow for a grace period – usually between 6 and 12 months – which provides a safeguard for applicants who disclosed their inventions before filing a patent application. Further, the novelty criteria may be interpreted differently depending on the applicable law.

If disclosing your invention before filing a patent application is unavoidable – for example, to a potential investor or a business partner – then any disclosure should be accompanied by a confidentiality or non-disclosure agreement. It should also be kept in mind that applying early for patent protection will generally be helpful when seeking financial support to commercialize an invention.

While it is certainly true that not all enterprises develop patentable inventions, it is a wrong to believe that patents only apply to complex physical or chemical processes and products or that they are only useful to large corporations. Patents can be obtained for any area of technology from paper clips to computers.

Moreover, when people think of patents, what usually comes to mind are major scientific breakthroughs such as Edison’s first electric lamp, or large corporations investing in research and development. But, in fact, most patents aren’t granted for groundbreaking scientific breakthroughs, but rather for inventions that make improvements to existing inventions. For example the second or third generation of a product or a process, that works in a more cost-effective or efficient manner.

Certain countries also have specific legal provisions for protecting incremental innovations. These are called utility models and they tend to have a shorter duration than patents and are generally easier to obtain.

• Exclusive rights: Patents provide you with an exclusive right to prevent or stop others from commercially exploiting an invention for twenty years from the date of filing of the patent application.
• Return on investments: Having invested a considerable amount of money and time in developing innovative products, through exclusive patent rights, you may be able to establish yourself in the market as the pre-eminent player and to obtain higher returns on investments.
• Opportunity to license or sell the invention: If you choose not to exploit the patent yourself, you may sell it or license the commercialization of the patented invention to another enterprise, which could then be a source of income for your company.
• Increase in negotiating power: If your company is in the process of acquiring the rights to use the patents of another enterprise through a licensing contract, your patent portfolio will enhance your bargaining power. That is to say, your patents may prove to be of considerable interest to the enterprise with which you are negotiating, and you could enter into a cross-licensing arrangement where, simply put, your enterprise and the other agree to license respective patents to each other.
• Positive image for your enterprise: Business partners, investors and shareholders may perceive patent portfolios as a demonstration of the high level of expertise, specialization, and technological capacity within your company. This may prove useful for raising funds, finding business partners and raising your company’s market value.

If you don’t patent your invention, competitors may well take advantage of it. If the product is successful, many other competitor firms will be tempted to make the same product by using your invention without needing to ask for your permission. Larger enterprises may take advantage of economies of scale to produce the product more cheaply and compete at a more favorable market price. This may considerably reduce your company’s market share for that product. Even small competing enterprises may be able to produce the same product, and often sell it at a lower price as they would not have to recoup the original research and development costs incurred by your company.

But that’s not all. The possibilities to license, sell or transfer technology will be severely hindered if you don’t patent your invention; indeed, without intellectual property (patent) rights, transfers of technology would be difficult if not impossible. The transfer of technology assumes that one or more parties have legal ownership of a technology and this can only be effectively obtained through appropriate intellectual property (IP) protection. Without IP protection for the technology in question, all sides tend to be suspicious of disclosing their inventions during technology transfer talks, fearing that the other side may “run away with the invention”.

Finally, you have to consider the possibility that someone else may patent your invention first. The first person or enterprise to file a patent for an invention will have the right to the patent. This may in fact mean that, if you do not patent your inventions or inventions made the employees of your company, somebody else – who may have developed the same or an equivalent invention later – may do so. Thus they could legitimately exclude your enterprise from the market, limit your activities to the continuation of prior use (where the patent legislation provides for such an exception), or ask your company to pay a licensing fee for using the invention.

However, to ensure that no one is able to patent your invention, instead of filing a patent application, you may disclose the invention to the public so that it becomes prior art for any patent application that will be filed after your publication, thereby placing it in the public domain (commonly known as defensive publication). Because of the existence of such prior art, later filed patent applications containing the same or similar invention will be refused by a patent office on the grounds of the lack of novelty or inventive step. At the same time, if you disclose your invention before filing a patent application, you will severely limit your possibility of obtaining patent protection on that invention.

Each situation is unique, so there is no one “correct” way to go about licensing a patent. In some countries, a patent applicant’s intention to grant a license to third parties can be published in the official gazette. To find out more, get in touch with your national IP office.

In general however, it is possible to say that if you intend to license your patent, what is important is diligent preparation. Before starting negotiation with a potential licensee, you should be informed of the current situation and future prospects of the relevant market and technology. Moreover, you should find out about the commercial state of a potential licensee and the associated financial value of your patent, etc. You should reflect on your own business objectives and carefully consider how entering into a licensing agreement fits into your short- and long-term business strategies.

In many cases, where an enterprise has merely improved an existing product and the said improvement is not sufficiently inventive to be deemed patentable, utility models may represent a good alternative, if available in the country in question. On occasions, it may be advisable for your company to keep its innovations as trade secrets which requires, in particular, that sufficient measures are taken to keep the information confidential.

Another alternative strategy could be to ensure that no one is able to patent your invention by disclosing it (commonly known as defensive publication), thereby assuring its place in the public domain. However, you should carefully reflect on using this strategy, since if you disclose your invention before filing a patent application, you will severely limit your possibility to obtain patent protection.

In most countries, if an employee has developed an invention in execution of his/her employment contract – i.e. usually during his/her working time within the enterprise – the invention (and the related patent rights) will belong to the enterprise. To avoid confusion and possible disputes, employers often specify issues of intellectual property ownership in employment contracts. Depending on the merits of the case, the employee may, however, have a right to equitable remuneration in accordance with legislative provisions or the employment contract. In any case, the employee will always retain the right to be mentioned as the inventor, unless he/she expressly renounces this right.

Patent information commonly refers to the information found in patent applications and granted patents. This information may include bibliographic data about the inventor and patent applicant or patent holder, a description of the claimed invention and related developments in the field of technology, and a list of claims indicating the scope of patent protection sought by the applicant.

But why would patent applicants disclose such extensive information about their inventions? The reason is that the patent system balances the exclusive rights granted to a patent holder over an invention with the obligation to publicly disclose information about the newly developed technology.

The requirement that a patent applicant disclose information about their invention(s) is very important for the continuous development of the technology. This information provides a basis on which new technical solutions can be developed by other inventors. Without publication there would be no way for the public to get information about new technical developments. It is therefore not surprising that providing information for the public is a key task of industrial property offices.

Patent documents contain technological information that is often not divulged in any other form of publication, covering practically every field of technology. They have a relatively standardized format and are classified according to technical fields to make identifying relevant documents even easier (for more information, see “General Information on the International Patent Classification System ”). All in all, they are a vast store of easily accessible human knowledge.

The information contained in patent documents can be very useful to researchers, entrepreneurs, and many others, helping them:

• avoid duplication of research and development work;
• build on and improve existing products or processes;
• assess the state-of-the-art in a specific technological field, e.g. to get an idea of the latest developments in this field;
• evaluate the patentability of inventions, in particular the novelty and inventiveness of inventions (important criteria for determining their patentability), with a view to applying for patent protection domestically or abroad;
• identify inventions protected by patents, in particular to avoid infringement and seek opportunities for licensing;
• monitor activities of potential partners and competitors both within the country and abroad; and
• identify market niches or discover new trends in technology or product development at an early stage.

Patent documents are published by national and regional patent offices, usually 18 months after the date on which a patent application was first filed or once a patent has been granted for the invention claimed by the patent applicant. Some patent offices publish patent documents through free-of-charge online databases, making it easier than ever to access patent information.

EIIPO’s PATENTSCOPE database provides free-of-charge online access to millions of international patent applications filed under the Patent Cooperation Treaty (PCT) System as well as patent documents filed at national and regional patent offices such as the European Patent Office and the United States Patent and Trademark Office.

Though accessibility of patent information has grown as more and more patent offices make their patent documents available through online databases, certain skills are still required in order to make effective use of this information, including carrying out targeted patent searches and providing meaningful analysis of patent search results. As a result, it may be advisable to contact a patent information professional for assistance where business-critical decisions are at stake.

EIIPO Patent Information Services (WPIS) provide free-of-charge patent search services for individuals and institutions in developing countries.

EIIPO also supports the establishment and development of Technology and Innovation Support Centers (TISCs), which provide patent information and related services in many countries around the world.

EIIPO has issued a series of free-of-charge publications related to the subject, including Finding Technology Using Patents .

EIIPO works to develop a balanced and effective international intellectual property (IP) system, a key part of which is dedicated to patents. EIIPO’s member states collaborate in various areas, including on agreeing the treaties and conventions that underpin the international IP system and that make the global exchange of creativity and innovation possible. The IP services that EIIPO offers, such as the facilitation of international patent protection under the PCT System, complement services available at the national and/or regional level. It’s important to remember that EIIPO does not actually grant patents per se; the grant or refusal of a patent still rests with the relevant national or regional patent office.