A patent is a monopoly right to prevent others from using your invention. This monopoly lasts 20 years from the date of filing (subject to grant and the payment of annual renewal fees). In some circumstances it can be extended up to a maximum of a further five year period.
Not all inventions are patentable. However most products and processes can be patented so long as they meet the following three criteria:
- They must be new
- They must be inventive (non obvious)
- They must be industrially applicable
Because of the complex nature of the patent system and the specialist practices developing in areas such as pharmaceuticals, biotechnology and computing, specialist advice should be taken at an early stage. Since patents are territorial in nature it will be necessary to devise and implement an appropriate filing strategy. Consideration will have to be given to this from the outset.
Policing the Patent Rights
Obtaining the grant of a patent is the first step to creating the monopoly. In order for it to have real value it may be necessary to enforce the patent against 'would be' and actual infringers. In order to enforce the patent through an infringement action in the courts it is necessary to identify those who are infringing.
There is no simple way to do this as infringers, particularly those who are infringing knowingly, will cover their tracks. Vigilance and monitoring by reviews of publications, attendance at conferences and meetings, searches on-line and general awareness of all employees, are some of the key measures necessary to identify those who are not respecting a company's rights.
A mere suspicion will not be enough, evidence will need to be amassed and this alone may take months to obtain before action can be taken.