Meaning of Patent Part I
How does a patent work?
A patent is an industrial property right that protects the invention of a technical object or process from the arbitrary use of others. The inventor, and thus the owner of the patent, enjoys extensive rights, injunctive relief and compensation in the event of unlawful use in the regional area to which the patent applies.
Applying for a patent requires inventing a technical novelty that can be used commercially – an innovation. It assures the owner of the exclusive use of the object or the process.
This offers entrepreneurs two options:
- Prevent competitors from using innovative processes in certain industries. The result is exclusivity.
- It is possible to generate an (additional) source of income by licensing a patented process. The main reason for this is the promotion of investments in research and development. These investments are indispensable for a growing technical progress in the economy. However, they require a certain legal protection in order to encourage companies to make these investments and to facilitate subsequent reinvestments through marketing advantages
Territorial limitation and duration of the patent
According to Whicheverhealth, a patent is only ever valid for a specific country or area. Comprehensive protection therefore requires the application of the patent in several countries. Internationally operating companies in particular should attach greater importance to applying for a patent for all relevant and potentially contemplated sales areas of the invention. This is the only way to protect usage and sales across regions in the company’s active environment.
After registration, a German patent must first go through an extensive test procedure. Once this has been completed and the patent is recognized, it is patented for a fixed period of 20 years for the use and sale of the object or technology in Germany. At the same time, filing a patent application in Germany gives you a twelve-month privilege to apply for it abroad. This means that the priority of patent protection rests with the original national applicant for one year. If the patent is also applied for abroad within this period, the international patent takes effect retrospectively at the same time as the original German application.
Depending on where an international patent is to be applied for, there are different options. On the one hand, it is possible to apply for the patent separately in individual countries. If the patent application is instead to take place in several contiguous areas, e.g. Europe, or internationally, a bundled application is also possible. The following territorial coverage is achieved by the patent as a maximum:
- Single registration: only valid in the respective country of registration.
- Registration of a European patent: Applies to up to 38 states of the European Patent Organization, but a limitation to certain states is possible on request.
- Application for an international patent: Applies to up to 152 international contracting states of the PCT (Patent Cooperation Treaty).
It is important that the collected applications are not a uniform legal claim, but only a collective application for the individual patent rights of the individual states. The exact authorizations and protective functions resulting from this can be found in the national patent law of the individual countries.
What requirements must be met in order to be able to apply for a patent?
In the German patent law, there are three criteria that are prerequisites for applying for a patent:
1. It must be a novelty.
It is important that the process or the object is demonstrably not in use anywhere else at the time of the patent application except in your own company. As soon as they are actively used or described in a comprehensible manner in training courses or in the literature, it is no longer a novelty. The possibility to apply for a patent is accordingly omitted. A central aspect in order to obtain a patent is the absolute secrecy of the process used, so that competing companies cannot integrate it into their structures before the patent application is filed.
2. There must be an inventive step.
At the same time, there must be an inventive effort in the form of a noticeable transfer performance. This means that the subject matter of the patent must clearly stand out from the current state of the art. Just small changes to existing processes are not enough to apply for an independent patent.
3. The commercial use of the patented object or process must be possible.
It is irrelevant in which commercial area it can be used. It is only important that the subject of the patent can be used commercially, i.e. with reference to a certain profit orientation .
Which technical inventions are not patentable?
In contrast to the positive requirements for a patent application, there are also a few clearly defined negative criteria that exclude patenting . These are the following:
- A mere finding of existing scientific mechanisms (e.g. gravity), plant varieties or animal breeds
- Objects that are to be regarded as inventions, especially from an aesthetic point of view (design protection would be the appropriate procedure for this)
- EDP software programs
- Inventions that imply a violation of common decency or public order
- Process for cloning or modifying the human genome
- Computer-implemented inventions that solve a technical problem are not classified as non-patentable software programs
- Biotechnology inventions are fundamentally patentable, but are examined particularly carefully in view of the above-mentioned restrictions
What other factors can lead to a patent failure?
In addition to the risk that an invention cannot be patented for the reasons mentioned above, there is also the possibility that the patent will be declared null and void even after it has been granted . There is initially a nine-month period from the publication of the patent, after which anyone can file an objection, stating reasons for avoidance. Depending on the decision on such an opposition, the patent
- unrestrictedly maintained,
- or be revoked.
After the nine-month opposition period has expired, it is possible to contest the patent with an action for annulment. Usual reasons for the admission of the lawsuit can be lack of patentability, impracticability of the procedure, unrecognized extensions to the application or an extension of the scope of protection.