A patent is a right that is given to an inventor to make, use or if he or she so wishes, sell an invention. It further confers on the inventor the right to license and sell it to others who will make, use or sell it. A patent should cover some certain details so that an inventor can enjoy the benefits of his invention. A worthless patent covers details that don’t matter – someone can make the same product in a different way that “gets around” the patent and the user would be just as happy.
A patent should have some important elements which are:
- The disclosure which describes the invention in detail along with drawings
- List of prior art (inventions that are similar that are publicly known in patents or books or products…)
- Claims which detail what is actually protected.
Patent are applied only in the name of the specific inventor or inventors as the case may be. You can apply individually for a patent or as a part of a joint research group.
There are three major kinds of patents and they are Plant, Design and Utility.
These were set in place for the various types of inventions they will cover. You can protect a utility patent for a machine, process, article of manufacture, an advance upon any of these existing products, or composition of matter (such as a drug). You may apply for a different kind of patent, but you may also patent an ornamental design of an asexually reproduced plant variety or an article of manufacture.
In order for your creation to qualify to be under patent protection it must be useful to the society, must not be unpleasant to public values of morality, and must be original, appropriately enabled or described, non-obvious, and the inventor must claim it in obvious and certain terms. There are a lot of products or ideas of human work that are not able to be patented; however, several can be protected through additional channels such as copyright.
Things such as physical phenomena, laws of nature, abstract ideas, and musical, dramatic, literary, and artistic works (a copyright is needed for these) cannot be patented. A utility patent should be applied for a product that has a precise value to society. A utility patent protects a product for 20 years, which starts from the day the patent is approved.
Patents can be quite complicated. For instance, WorkTools won a patent lawsuit because, among other things, the patent claim used the word “a” instead of “the”.
At this point, it is good to note that there is nothing like an “International Patent” or a “World Patent”. There is no single patent that can protect an invention in all countries of the world. In order to get a patent in a particular country, you will have to file for a patent in that particular country. The cost of getting a patent in all the 200 counties on earth can run into an excess of a million dollars to cover the cost of filling and issuance, and another million dollars for maintenance of the patent to full term.
It goes without saying that this humongous amount of money is way beyond the reach of independent inventors and even most corporations, especially when you factor in the reality that you have to first apply for a patent before you prove that a product is proven to be commercially successful. So even if you had all that million to spend on a patent in all countries of the world, there is still a probability that it will not translate into a successful product.
In addition, even with a patent that was validly issued, it can still be challenged and you might lose! The legal system recognizes that patent offices sometimes make mistakes. What this means is that the only way you can truly know if a patent is valid is to have it tested in a lawsuit and in a subsequent appeal. If the patent is able to survive this process, then you can be sure that it is quite valid.
The good/bad news is that patents are presumed valid and most of them are not subjected to this expensive testing procedure, unless they cover something that is worth a lot of money. For instance, the Wright Brothers spent many years defending patents that covered details significant to airplanes.
Be that as it may, at the beginning stages, the patent process enables you to hedge your bet and keep expenses down to a manageable level. The simplest tool for handling this is a Patent Cooperation Treaty (PCT) application. Like the Common App for colleges, PCT enables you to file one international patent application that will be accepted by 150 countries throughout the world.
Significantly, the PCT application can be used as a reservation for submitting your patent to specified countries and enables you to delay for up to two and a half years in making the decision on which countries to actually file in. After that period, the PCT application is converted into individual patent applications, one in each country where patent protection is desired.
In the case that you already have a complete patent application with claims, filing a PCT application will cost approximately four thousand dollars. With a PCT application you can be able to preserve your right to file international patent applications in any of 150 countries (except Taiwan) for some years.
It is of utmost necessity to file for a patent as early as possible. If you would like a patent, you need to file an application before disclosing or using the invention. While there are other details of the application to research, such as timing and filing requirements, it’s worth considering the PCT application if you want an international patent.
Usually, companies will file patents in several main countries where the invention will be created and sold. For instance, in the 1990s, it cost WorkTools Inc over $100,000 to have three patents for their PowerShot staple gun in France, Brazil, China, the USA, England, Canada, Germany, Italy, and Spain. They choose these countries because competitors were making products that were similar there.
It is good to note that even though it is relatively easy to apply for international patents with PCT, it is still really expensive and is usually complicated to enforce. As much as you have to evaluate whether a patent is worth getting or otherwise in a particular country, you have to also factor in the burden of enforcement as well. In Western Europe, Korea, the United States, Japan, and Canada, patent enforcement is effective. Again, the United States is the easiest place to take action on your patent. China can be difficult but has gotten better over the years. It continues to be very difficult to enforce a patent in Brazil, India, South Africa, and Russia and as such, you should reconsider spending a ton of money on these countries to acquire patent instead, put it to good use elsewhere.
If you would like to have a worldwide patent on a particular commodity, the best place to start is by getting a local or domestic patent. After filing for a United States patent, there is a limited window of time in which to apply for international patent protection.
If a newly established business that is presently operating in the United States becomes very successful with time, it may want to expand into other countries. If that is the case, then the company needs to act as soon as possible in order to capitalize on international patent protection. As soon as the time that is allocated to them for applying for international patent protection expires, that company could be prevented from getting a patent for its own invention.
When you file the patent application in the United States, you will have up to about a year, under international treaties to seek international protection which is under two key treaties namely;
- Paris Convention: this treaty has existed for over a century. You can file in the U.S. and within one year, file in most other countries of the world in their patent offices and claim the benefit of the priority of the U.S. filing date.
- The Patent Cooperation Treaty (PCT): this has already been previously discussed in this article. A PCT application will get you an additional 18 months, or two and a half years, from the date that you filed the U.S. patent application until you actually have to go into any other country or jurisdiction.
There are five main jurisdictions that are popular in the world today. They are;
- the U.S. Patent and Trademark Office, or USPTO,
- The European Patent Office, or EPO.
- Another is the Japan Patent Office.
- The China patent office
- The Korea patent office
In all the five major jurisdictions, the most popular are China and Korea, which are very important jurisdictions for patents. In fact, about 90 percent of all patent applications in the world today are filled in China and Korea.
Patents are not granted by an international body rather they are granted individually by each country. The reason why an international patent is farfetched is because different countries have different patent laws guiding them. However, the European Union will soon be granting a Europe-wide patent. Be that as it may, getting a patent around the world will require consultation with more than one jurisdiction, all of whom will need to approve the application and grant the patent.
The patent protection you will receive will vary from country to country based on whether the country issuing the patent has an efficient enforcement program in place. It also varies depending upon whether or not a certain country will even grant a patent on the proposed invention.
When you are seeking international patents, it is smart to draft an application so that it would be appropriate in the U.S. and China, since the U.S. and China construe their applications using some of the most strict disclosure requirements.
In order to keep your expenses low, it is advisable to file only in places where there are products being made that would be considered competitive. For instance, if products that compete with yours are made in Japan only but sold all over the earth, just one patent in Japan would protect you around the world. But defending a patent in contradiction of sellers in the United States is easier than defending one in Japan, so having a U.S. patent, too, is prudent. You can apply this concept to as many countries as you can afford.
Maintaining and Estimating Patents around the Globe
These days, for companies to retain their competitive edge, while handling budgets that are shrinking for research and development, and staying abreast of the constantly changing expenses related to getting international patent protection, they have to be constantly innovative.
Estimating expenses can consume your time and it is not quite easy. Expenses that you will have here usually have three different components – an official segment, an associate or attorney segment, and a translation segment – which are disseminated across the various stages of the patent application process. The entire estimated expenses to maintain and file an application or approved patent through to expiration range from $25,668 in Japan to $11,404 in Israel. Cost for translation is tremendously high and range from $6,444 in Japan to $1,565 in Iran.
The estimated costs to request inspection in additional jurisdictions differ from $2,254 in Europe to $496 in India and are comprehensive with the expenses for additional claims in South Korea and Japan and the expenses for extra independent claims in Russia. If it’s assumed the PCT application is fairly straightforward, the prosecution varies from $5,068 in Japan to $533 in Iran. The projected expenses to be paid in time of patent grant/ allowance/issuance vary from $3,596 in EP to $143 in China.
Some countries do not make it easy to patent business methods or software. In these types of jurisdiction, you may need to draft your claims specifically to overcome these obstacles. It should also be noted that some countries charge additional fees for each claim included in an application above a certain number. In order to ameliorate fees of this nature, you should limit the number of claims that you have.
Based on the amount of patent work you have to handle, it could make more economic sense to hire an in-house patent attorney as opposed to retaining an outside counsel. Outsourcing other services in your patent portfolio can be an easy way to trim your legal fees. Many steps of the foreign filing process are primarily administrative. A company can easily outsource those jobs to reduce their patent expenses.
A rule of thumb when seeking for countries to file patents is to consider whether the royalties on the sale of your invention will cover the expenses of maintenance and filing.
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