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What is a patent?
A patent application is a legal document comprising two key elements:
- A description outlining how an invention works
- A set of claims that outline the extent to which an invention is legally protected.
Once granted, a patent provides a patent owner with a monopoly over the patent approved invention for a limited time (usually a period of 20 years from the date of filing). During this time, a patent owner can pursue legal action against anyone that infringes their patent, i.e., anyone that makes commercial use of an invention without consent.
A granted patent does not bestow a patent owner with the right to use the claimed invention, so a patent owner must take care not to infringe other existing patents when working on an invention.
What can be patented?
A patent can only be granted to novel inventions whose development required an inventive step. The assessment of novelty and inventive step is performed using all publicly available information at the time of filing an application, therefore it is important not to publicly disclose an invention prior to filing.
An invention covered by a patent must also be applicable to industry and must not be otherwise excluded from patentability (e.g., an exclusion exists in the UK and many other jurisdictions to ensure that a doctor is not prevented from prescribing a medication or carrying out a treatment on a patient).
Who can apply to patent an invention?
Any legal entity or person can apply for a patent, but it will be granted to the inventor unless there is an agreement or legislation in place that states otherwise. In the UK, for example, an invention created by an employee will usually belong to the employer if it was created during an employee’s normal duties.
What is the application process?
The process of drafting a new patent application usually begins with a meeting between patent attorneys and inventors to discuss what the invention is and how the invention could be used commercially. Understanding the commercial aims behind a patent application is important because it helps to determine how claims should be constructed. There is also a discussion over a filing timeline to work out if there are any deadlines such as, plans to disclose the invention publicly.
Following a meeting, a patent specification is drafted and provided to the client. Once finalised, the specification is (usually) first filed at the UK intellectual property office (UKIPO) as a patent application. The date of filing an application, referred to as the ‘filing date’, acts to ‘plant a flag in the sand’ over an invention. No disclosure after this date will affect the fate of a patent application (except for patent applications filed before but published after a filing date in the same jurisdiction). Furthermore, a filed application will be used to assess the patentability of later filed applications to prevent competitors from claiming the same invention.
Once an application is received, the UKIPO will search for similar publicly disclosed inventions (prior art) and use the search results to determine if an invention is novel and inventive. The examiner’s findings will be reported, and often this will include an invitation to respond to findings.
It is often necessary to supply the patent office examiner with counter arguments or claim amendments before the application is in for grant. Depending on the invention it may require several rounds of arguments and amendments to reach the final granted patent.
“The average time to get a patent granted in the UK is around 2-3 years.”
What about other jurisdictions?
Patents are jurisdictional which means that applications must be made to every country for which protection is sought. These applications can be filed directly with foreign patent offices and should be filed within 12 months of an initial UK application so that they may claim ‘priority’ – a mechanism in which an application can benefit from an earlier filing date of the original application.
Applicants can also apply for an International Patent Application under the Patent Cooperation Treaty (otherwise known as a PCT application). A PCT application must also be filed within 12 months of filing an earlier application to benefit from priority, but once filed, a PCT gives an applicant at least 30 months from the earliest priority date to decide which of the 150+ contracting states they wish to gain protection in.
The patent is granted, so now what?
Once granted, a patentee can enjoy 20 years of monopoly over an invention, provided that renewal fees are maintained. It’s important that a patentee proactively enforces a patent by looking out for any unpermitted exploitation of the claimed invention.
Want to learn more?
Navigating the complexities of a patent application can be challenging, especially with the abundance of legal terminology involved. To help you confidently navigate the process, we’ve created a comprehensive three-part glossary.
This resource will guide you through the essential terms you may encounter as you move through each stage of securing your patent.
