Patents and how to get them

A patent is one form of intellectual property (IP). It turns an intellectual idea into a piece of property that can be bought and sold just like a physical object such as a car or a house.

Another person cannot take your car or enter your house without your permission: that would be theft or trespass. There are many laws which tell other people what they can and cannot do with your physical property.

In the same way, there are many laws which tell people what they can and cannot do with your intellectual property. For a patent, one important law is that another person cannot make or sell a patented invention without the patent owner’s permission.

Patents usually protect the functionality of a product or the way a product works. A mousetrap with a special spring which snaps faster and harder, making it more effective and more humane, is a patentable invention. If you have a patent for that better mousetrap, then you can stop anyone else from making or selling it for 20 years. Or you can license out your patent to manufacturers in return for a fee.

Patents can be very powerful weapons for attacking competitors, or shields to defend your corner of the market. Both these uses create monopolies which can damage free trade. Obtaing a patent is therefore a difficult and often lengthy process. It is important that patents are only granted for inventions which are worthy of such strong protection.

Obtaining a patent

The first step to obtaining a granted patent is to write a patent specification. The specification is a legal and technical document which describes the invention and how it works in detail. These are normally drafted by patent attorneys: specialist agents with a science background, and it is a skilled job to write a good one.

The specification is then submitted to a government body (such as the UK Intellectual Property Office or the US Patent and Trademark Office) or an intergovernmental organisation (such as the European Patent Office) with the power to grant a patent. At this stage, you have a patent application and your invention is “patent pending”.

Once any necessary fees are paid, an examiner at the patent office searches for prior art. Prior art is any published information describing products or ideas similiar to the invention described in the specification. To be granted a patent, an invention must be both novel and inventive compared to the prior art.

Novelty simply means that there is at least one feature of the invention which is different from any single idea described in the prior art. No prior art mousetrap uses your special spring, for example.

Inventiveness means that the new feature(s) would not have been obvious when looking at the prior art as a whole. The invention as a whole might be novel, but if all its individual parts are known individually then it might not be inventive. What if the special spring in your mousetrap has already been used in a watch escapement, for example? Was it obvious that it would work well in a mousetrap? This is often a difficult standard to assess.

The examiner writes an examination report or “office action” containing his/her findings and an opinion on whether the invention can be granted a patent. Several rounds of negotiation between the inventor and the examiner might follow, often conducted through a patent attorney. This negotiation process involves refining the definition of the invention contained in the patent specification and, once again, is a skilled job.

In the end, the patent application is either accepted or refused by the examiner. If it is accepted, then the patent is granted, perhaps after payment of more fees to the patent office. Only after the patent is granted can it be enforced.

Other forms of IP

I said at the beginning that patents are one form of IP. Other forms include copyright, trade marks and designs. It is easy to confuse them with one another, but they work in different ways and protect different things.

Briefly, copyright protects artistic expression such as the words in a book or a recording of a piece of music. Trade marks protect a name or logo used when offering goods or services. Designs protect the look of a product.

Designs are called “design patents” in the US, which is especially confusing, but the US do insist on having their own special rules and terminology for a lot of things! “Provisional patents” are another special US invention which do nothing but cause confusion. I’ll write about them another day.