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Patent FAQ's
What is a patent?
In some countries (like United States) there are three kinds of patent -- utility patents, design patents, and plant patents. A patent permits its owner to exclude members of the public from making, using, or selling the claimed invention. Most countries of the world have patent systems, although the patent terms and types of patents vary.
A common misconception is that the patent gives its owner the right to make, use, or sell the invention. It only gives the owner the ability to exclude others from making, using or selling the invention. The patent owner may be forbidden from using the invention, usually due to the existence of another patent, or sometimes due to other legal restrictions.
To illustrate this principle, consider the following common case: Person 1 patents an invention. Person 2 later patents an improvement to the invention. In order to make, use, or sell the improved invention, one may need permission from 1 (due to the patent on the original invention), and also permission from 2 (due to the patent on the improvement). For example, suppose person 1's patent has a claim covering apparatus comprising a seat and legs (a chair). Suppose person 2's patent has a claim covering apparatus comprising a seat, legs, and two curved rails (a rocking chair). Someone who would hope to make apparatus comprising a seat, legs, and two curved rails will have to get permission from both person 1 and person 2. Another choice is to wait for person 1's patent to expire; then permission is needed only from person 2. Still another choice is to wait for both patents to expire.
Are algorithms or computer software patentable?
If one has invented a novel and unobvious algorithm or piece of computer software, and wishes to obtain patent protection, then one's next step should be to consult one or more patent attorneys or patent agents who are experienced in getting patents on inventions having algorithms or software in them.
the mere presence of software in an invention does not automatically render it unpatentable. It is commonplace for inventors to obtain patents in inventions composed largely or nearly entirely of software.
What is the Paris Convention?
The Paris Convention is a treaty, adhered to by about 110 countries, which helps those who wish to obtain patent protection in more than one country. To illustrate how the treaty helps an applicant, consider the inventor who desires to apply for patent protection in countries A and B (both of which adhere to the Paris Convention). If there were no Paris Convention, then for the best chances of obtaining a patent in both countries, the inventor would have to file in both countries simultaneously or nearly simultaneously because the publication of the patent in country A would bar filing a patent application in country B. Because of the Convention, however, the inventor need only file in one of the two countries, say country A, and may postpone filing in country B for almost a year. When the filing is done in country B the applicant merely "claims priority" from the filing in country A, and the patent office in country B will treat the country-B application as if it had been filed on the date in which the country-A application was filed.
The Paris Convention is thus very helpful to inventors, for several reasons:
1. Filing in many countries costs a lot of money. The Paris Convention allows the inventor to defer that cost. What's more, if events during the year lead to a decision to abandon the attempt to get patents, then the Paris Convention allows the inventor to save all the money that would have been spent in the countries other than the first country.
2. Filing in many countries is often time consuming and involved. Often the text of the patent application has to be translated into several languages. It is necessary to engage in correspondence with patent agents or attorneys in each of the countries involved. In the absence of the Paris Convention, an inventor would have to do these things in a hurry, in many countries at once, necessitating large courier bills, lots of faxes, and lots of rush translations. The Paris Convention allows the translating and international correspondence to be undertaken over the course of a year rather than all at once.
What is a priority date for a patent application?
The term "priority date" can mean any of several different things, depending on the context. The "priority date" of a patent application is the date which controls what prior art affects its patentability, whether a statutory bar applies, etc. For many patent applications the priority date is the date on which the patent application was filed with the patent office. In some circumstances a patent application will enjoy an priority date earlier than its own filing date. For example, a continuation or divisional application will enjoy the filing date of the application of which it is a continuation or divisional. Another example is the application which claims priority under the Paris Convention from a counterpart application filed less than one year earlier in another country; such an application has a priority date equal to that of the earlier application. Yet another example is the application which claims priority from a provisional application. Finally, an application may enjoy a priority date by virtue of being a national-phase application arising out of a PCT patent application in which the United States was designated. There are other circumstances in which a patent application will have a priority date differing from its filing date.
What is the PCT (Patent Cooperation Treaty)?
PCT stands for the Patent Cooperation Treaty, which is adhered to by about 115 countries. PCT patent applications are administered by the World Intellectual Property Organization. The Patent Cooperation Treaty permits an inventor to file what is called a PCT patent application. The Treaty is the result of an effort by many countries to provide some streamlining of patent applications across several countries at once.
What benefits flow from a PCT application?
For an applicant who has filed a patent application in a particular country, a PCT application offers a way to postpone having to make decisions about filing patent applications in other countries. If there were no such thing as the Patent Cooperation Treaty, then the only opportunity to postpone making decisions about foreign filing would be the opportunity provided by the Paris Convention. Under the Paris Convention, someone who files an application in one country is forced to make a decision, within one year, as to whether to file patent applications in other countries which would claim priority from the first application. A PCT application offers a way to extend the time during which a decision must be made about foreign patent filings, for a longer period than the decision-postponement period provided by the Paris Convention. By filing a PCT application, the applicant can postpone for 30 months (rather than 12 months under the Paris Convention) the decision in many countries about whether or to spend the money for foreign patent filings.
The PCT process is helpful to those who don't have enough money to file in several countries, but who expect to have enough money at a later time. A PCT application provides a convenient way to keep the options open for foreign filing for up to thirty months.
Applying for patents in several countries through the PCT system nearly always costs more than applying for patents in the same countries without using the PCT system. Thus, the inventor who is sure that she wishes to file in several countries, and who has enough money now to pay for the filings in those countries, will be saving money by filing directly in those countries (through the Paris Convention) rather than through the PCT system.
What is the EPC (European Patent Convention)?
EPC stands for European Patent Convention. This convention has given rise to what is called the European Patent Office (EPO). The European Patent Office offers a way to file a single patent application which can lead to patent coverage in all the European countries that belong to the EPC. While the European Patent Office has its historical origins in the European Union, it is interesting to note that the European Patent Office formalities can lead to patent coverage in countries that do not belong to the European Union. For example, Switzerland does not presently belong to the European Union, and yet it is possible to secure Swiss patent protection through the European Patent Convention and the European Patent Office.
The countries that belong to the European Patent Office include Austria, Belgium, Switzerland, Germany, Denmark, Spain, France, United Kingdom, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, Netherlands, Portugal, and Sweden.
For an inventor, the main decision that has to be made is whether to file directly with the country or countries in Europe in which patents are desired, or whether to do a single filing with the European Patent Office. As a first approximation, if it is only desired to get patent coverage in one or two or three countries of Europe, it may be more economical to file directly with the patent offices in those countries. On the other hand, if the number of countries of Europe in which patent protection is desired is much greater than just one or two countries, then it would be probably be economical to file directly with the European Patent Office.
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