Patents 101 and why you do not have to file a patent to use the patent system
Article | December 30, 2022
Patents 101 and why you do not have to file a patent to use the patent system
Patents 101 and why you do not have to file a patent to use the patent system
Introduction
A patent provides a limited monopoly right to exclude others from performing your invention. In return for this right, the invention described in the patent is made publicly available.
To obtain a granted patent, the invention needs to be new (novel) and not obvious (inventive).
Novelty is assessed against any information that is publicly available. This information includes existing patents, videos (think YouTube), scientific literature, promotional material, presentations, even verbal communication. Just because you have not seen your invention on the market does not mean your invention is new.
Inventiveness is determined by the differences between the invention and what was known in the technology area. The test for inventiveness is more subjective than novelty and differs depending on the jurisdiction. If the invention solves one or more technical problems compared with what was already known, then this generally helps to establish what makes the invention inventive. However, inventiveness is assessed against what people in the technology area of the invention knew, so the threshold for inventiveness depends on the technology area.
Another requirement to obtain a granted patent is that the invention be fully described. This requirement is important because it means you cannot keep some aspects of an invention secret. For this reason, it is imperative to assess whether an invention is better protected with other protection regimes (for example, a trade secret) before a patent is filed.
The first type of patent that is filed is generally a provisional patent application which provides provisional protection for 12 months. At the end of this 12-month period a complete application needs to be filed. Over the next 2-5 years the complete application is examined and hopefully granted. New subject matter cannot be added to the complete application once it is filed. This makes the filing of the complete application an important step as all features of the invention should be described in the complete application.
Only once a patent is granted does it provide enforceable rights.
How the patent system can assist those who do not file patents
What about those who do not have a patent or whose products are not appropriately protected by a patent, how does the patent system work for them?
A large misconception is that only those with a patent can use the patent system. This simply isn’t true. Let me explain why.
Each patent application has associated information including: inventor names, patent owner, patent technology area, and filing dates. The information provided by one patent application may have limited value but looking at a patent dataset provides a wealth of information. Much like looking at any dataset, how patent data is used depends on what information needs to be extracted from the data.
Those who do not file patents can make use of patent datasets in a number of ways. For example, a patent dataset can be used to look at:
- A competitor’s patent activity and whether they are filing in existing or new technology areas. This provides information about your competitors’ R&D and commercialisation strategy.
- Targets to license out technology to generate a revenue stream or find suitable technology partners to licence in technology.
- Who key inventors are in a technology area. This can be useful when looking to recruit for R&D programs, what patents to look at if a certain inventor invents competitive products, or to work out what invention may be covered by a patent before the patent is made publicly available.
- What patents may be an infringement risk and a barrier to market for your product.
- Whether it is beneficial to work with a competitor to form an alliance to compete with another competitor.
- Determine the “white space” in the patent landscape and where there are gaps in the market. This can be useful when looking to develop and market a new product as it helps to formulate a R&D strategy, what R&D is required and what can be licensed in (see above), which has the potential to stretch valuable R&D budgets further.
There is no single way the patent system must be used – some use it defensively, some use it offensively, some use it solely for competitor analysis. The point is the patent system is actually multi-purpose and can be leveraged in more ways than one. The intelligent navigation of the patent system could be a key to your commercial success.
Next time you think that “I don’t file patents so I’m not going to bother with the patent system”, take a moment to think because chances are the patent system has some valuable insights for your commercial strategy.
