General Patent Information
A patent is a right granted for a certain territory which forbids a third party from exploiting the invention. In return for this right, the description of the invention is revealed in the patent. This exclusive right, however, is territorial and limited in time. The rights to the invention, once granted, can be maintained for 20 years from the filing date, provided that fees are paid. Pharmaceutical compounds and crop protection compounds can be protected for a maximum of an additional 5 years under certain conditions. (also see "What is a supplementary protection certificate ("SPC")?
What is a patentable invention?
An invention doesn’t have to be mind-blowing to be patentable. Many inventions in fact represent small but useful improvements. There are however a few requirements which an invention has to comply with in order to be patentable. More particularly, the main requirements are that the invention as claimed in a patent application is novel, inventive and industrially applicable.
In view of the costs involved in filing a patent application it may be desirable before filing to obtain an indication of whether these criteria can be met. De Clercq & Partners can help you to assess whether your invention is likely to meet these criteria.
It is noted however that some national patents are granted without substantive examination. Thus, it may be possible to obtain a granted patent without complying with the requirements of patentability. This may be of interest for attracting investors or tax reductions (please see other FAQ on this topic). However, the validity of such a patent can be questioned when it is used in court to stop a third party from carrying out the invention.
Is any type of subject matter patentable?
Not all new knowledge is patentable. The discovery of America by Columbus is not an invention. Physical phenomena such as atoms, gravity and steam are also not considered patentable. Scientific theories, mathematical formulae, methods for doing business and game rules are not considered inventions in Europe and, therefore are also not patentable. However, the technical application of information that is not patentable as such can sometimes lead to a patentable invention.
It should be noted that the criteria for what is patentable subject matter is different in Europe and e.g. in the United States. Thus, for some subject matter patents can be obtained in the US, while this will not be possible in Europe (and vice versa).