What is Patent Protection? What are different aspects of it?


What is Patent Protection? A patent office grants certain rights to an inventor to provide protection for his/her invention, by restricting every other person to make use, sell, or import that invention without the inventor’s consent. These are commonly referred as the ‘Patent’. The inventor holds every right to license or sell the rights defined by the claims of the patent. The article revolves around the basic concepts of patent protection.

Prerequisite Conditions

  • Element of novelty: The invention must have some new and advanced features that are unknown to the body holding all the existing technical knowledge.
  • Element of non-obvious or inventive step: The invention must not be derivative of any existing invention, derived simply by applying ordinary skills which is so obvious to be concluded by any person. The invention must be invented by a person having significant amount of technical knowledge and must bear observable results that proves that it is completely new.
  • Element of usefulness: The invention must bear the ability to prove useful enough for industrial applications instead of satisfying only theoretical aspects.
  • Element of patentability: The invention must be considered as patentable under the territorial laws.
  • Element of clarity: The invention must be written in clear or well stated language so that even an ordinary person having limited skill for that subject could be able to understand the concepts invented.

Patent Granting

National patent office or regional office is authorized for patent granting. The list mentioned below contains all the regional patent offices which currently are operational:

  • African Intellectual Property Organization (AIPO): It serves as a central registration intellectual property system for 16 French-speaking African states.
  • African Regional Intellectual Property Organization (ARIPO): It is an intergovernmental organization that assists African states regarding patent and other intellectual property matters.
  • Eurasian Patent Organization (EAPO): It is a regional organization set up that grants Eurasian patents.
  • European Patent Office (EPO): It grants European that follows the European Patent Convention.
  • Patent Office of the Cooperation Council for the Arab States of the Gulf (GCC Patent Office): It grants patents valid in all GCC member states.

By this, an inventor can request for protection of his/her invention in a group of states at once, which are members of that same organization. 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. As such there is no universal or international system for patent granting.

Challenging a patent grant

Challenging a patent grant can be done either via patent office or in the law court.

  • The Patent Office allows and submits third party prior art in front of the patent examiner during the examination process.
  • A court may claim, invalidate or revoke a patent upon a successful challenge by a third party stating that claimed invention is not new or does not involve an inventive step

Patent Attorney

A patent attorney is an agent or a concerned person who bear technically specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice. Officially they are not required for preparing patent applications and filing work. For understanding the complex timeline, documents, and legal procedures, it is better to seek legal assistance from a patent attorney/agent while patent drafting. Attorney plays a crucial role in countries where the legislation requires his/her involvement if an inventor wants to file a patent beyond or outside his/her territorial boundaries. National and regional IP offices provide complete information for the qualified attorneys and agents.

Patent Investment

Patent investment refers to the sum amount of money required to be paid as official fees while filing a patent within a territorial boundary. Some of the basic facts are listed below:

  • Cost of patenting is not fixed and varies from one territorial boundary to another.
  • The relevant national or regional intellectual property patent office holds complete details about the fees structure.
  • Depending on invention’s type and length, nature, complexity, attorney’s fees (if consulted), and the amount of corrections required, the fees structure is decided.
  • Annual maintenance or renewal fees must be paid in addition to the official filing fees, once a patent is granted to maintain the patent’s validity.
  • Extra fees may be incurred, such as filing fees for each country in question, the translation costs, and local attorney charges, in case the inventor wants a patent outside his/her territorial boundary.

Worldwide Patent

Patents are territorial rights and thus cannot be acquired worldwide. It can only be filed, granted, and enforced within a territorial boundary in accordance with the governing laws within that boundary. If the national patent application is filed in more than one nation, then the patent can be granted for more than one territorial boundary or country. For example, the European Patent Office (EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts regional patent applications, or grants patents in the member states of that region which is valid in some or all of its member states. Also, an international application under the Patent Cooperation Treaty (PCT) which is administered by WIPO can be filed for seeking patent protection in different countries, which will be valid for all the member countries.

Software-based Patent

Software has always been on the verge line whether to consider it worthy for patent or not. But there are laws for software as well, which must be followed and considered before seeking for protection. The two basic ways to protect the software invention are listed below:

  • Patent: The software invention must include patentable subject matter (it must be well stated, new, and non-obvious, must hold industrial applicability, and should not just be an abstract idea). Thus, for this matter consulting a practicing lawyer specializing in intellectual property or the intellectual property offices is the best way to be clear on terms. For getting details about the local lawyers or agents, WIPO  directory of national and regional intellectual property officescan be contacted or simply browse the WIPO Lex database of intellectual property legislation.
  • Copyright: If the software is found out to be non-viable to get patented for, then copyright is another option. Another aspect for this sort of protection is that there is no need to register or submit any copies of inventor’s code or any technical documents of work to get a copyright. But, this protection extends only to expressions, not to ideas, procedures, methods of operation, or mathematical concepts as such. This is the reason why a lot of companies hide their object code by copyright, keeping the source code as a trade secret.

App-based Patent

Patenting an app based product depends on the element of the app that has to be protected. Some of the important aspects about patent for app-based products are listed below:

  • The idea or the software must follow the prerequisites patentability requirements to acquire patent protection.
  • For any technical idea or any app’s feature relating to the app, patent protection could be thought as a significant idea.
  • The software running the app is also liable for protection if it holds some technical functionality, according to the applicable national law.
  • Symbols, logos, or signs which are present within the app can be protected through trademarks.
  • Artistic and literary works which are present within the app (for example, original databases, musical works), can be secured by copyright.
  • Graphical objects and layouts can be protected using industrial designs.

Extending patent protection terms

Extending patent protection means to extend the validity of a patented product before the end of its patented period by extending it for the same amount of time he/she was not able to take advantage of it after its grant. There is a provision of its extension beyond 20 years in some countries by issuing a Supplementary Protection Certificate (SPC) in some specific cases.

Patent Protection Steps and Requirements

The following steps must be followed while obtaining patent protection:

  • Step1 – Filing: Filing means registering about the invention in specific forms provided in the patent office or through online mode.
  • Step2 – Application: Patent application must include all of these:
  • Title: Title must be properly and concisely specified that completely satisfies or indicates the technical details related to the invention.
  • Background details: Description of the invention must be stated in clear language with enough details so that a person even with an average understanding of the field could understand and invent something new by the use of that invention.
  • Visual materials: Background details must be included with diagrams, such as use case diagrams, flowcharts, graphs to make the study easy to understand.
  • Abstract: Brief summary of the invention must be included so that a person could take the idea about the invention without going into further details.
  • Field: Type of field must be defined precisely in the “claims” part of the patent application, to give general idea about the subject to which the patent is related to.
  • Step3 – Supporting documents: While filing various kinds of statements or declarations, supporting documents must be submitted to the patent office so that the invention can be verified and validated on the basis of the resources provided.
  • Step4 – Consult a patent attorney: A patent agent or an attorney holds precise knowledge about the timeline, the legal documents, and the legal procedures that must be done while preparing a patent application, and therefore must be consulted.

Patent Application Submission

There is no fixed procedure that has to be followed to get a patent since a patent is only valid within the confined territorial region and therefore its procedures vary from one region to another. There are ways to get information regarding the procedures, such as the WIPO Lex database. It is a global database that provides free access to legal information on intellectual property. But, it is still advised to discuss concerns and take ideas from a practicing lawyer specializing in IP or a relevant IP office.

Searching for patented inventions and patent laws

  • Refer section “Patent Information”, in particular, the answer to the question “Where can I find patent information?”
  • Refer WIPO Lex for easy access to intellectual property legislation.
  • Refer national or regional patent offices for detailed information concerning national or regional legislation on their websites. Visit WIPO list of national and regional intellectual property offices for more details about the legislation offices.

Related Resources:

Patent File in India

Patent Application Types in India