The purpose of the law surrounding patents is to protect inventions. The law is governed by the Patents Act 1977 (PA 1977). A patent can be acquired providing that the correct statutory procedure is followed.
The first factor in order to acquire a patent is that there must be an invention; this is not defined in the PA 1977.
The second factor in order for something to be patentable is that it must be new, contain an inventive step and be industrially applicable;
1. New; the invention is not regarded as new if it is known to the public
2. Inventive step
3. Industrially application.
The application for a patent is sent to the Intellectual Property Office (IPO). The application procedure is fairly complicated and expensive.
The initial step is to file the application for the grant of a patent. This document includes a specification which is a detailed and technical description of the invention.
It is then considered by the IPO. At this stage, they will consider the patent to ensure that it complies with the requirements for a valid application. Furthermore, a search report is created and within 18 months of the search report being serviced, the patent application is published. If the applicant wishes to proceed with the application, they have to request a formal examination for novelty and inventive step within 6 months of the service of the search report.
On completion of the above, the patent will either be issued or rejected. If the patent is rejected, the applicant can submit further evidence in the hope for it to be granted.
The applicant to complete the forms is usually the inventor. It can be a team of inventors but to be regarded as an inventor, the individual must have contributed to the inventive concept of the invention.
With regard to employees, the invention will belong to the employer if the invention is created in the course of employment. However, if the patent is granted under these circumstances, then the employee is entitled to share in the profits.
Once the patent has been granted, the owner can then prevent others from using the invention unless authorised. The period for a patent is a maximum of 20 years. Usually, a patent is granted for a period of 4 years. At this point, the patent is renewed annually.
If a patent has been registered, it is infringed if an individual (without authorisation) makes a product from a patented invention, offers a patented process or supplies information relating to an essential element of the patented invention.
There are several defences available if an individual is accused of infringing someone’s patent. The main defences include:
1. That there is no infringement
2. That the infringement was completed in private and that there was no commercial intention
3. That the infringement was done for experimental purposes relating to the intervention
4. That the patent is not valid.
The first is an injunction which prevents further infringement from occurring. The validity of the patent may be inspected to determine whether it is a valid patent and can in fact be infringed. The owner of the patent may be awarded damages to compensate for any loss.
