Surprisingly enough, the patent laws of most countries do not provide any definition of the term “invention”. Instead, those laws recite several criteria an invention must meet in order to be patentable. Those criteria are: technical character, novelty, inventive step and industrial applicability. Furthermore, exceptions to patentability are indicated.
From the legal texts and the case law, Germany’s Federal Court of Justice has derived the following concise definition: according to them, an invention is a teaching of planned action that allows one to achieve a causally foreseeable effect using controllable forces of nature.back to top
A patent is a time-limited monopoly granted by a state for a new and non-obvious solution to a technical problem. The patentee may take legal action against third parties producing, using, importing or selling the invention claimed in the patent. However, the grant of a patent does not necessarily authorize the patentee himself to exploit the patented invention, since third parties may own other patents limiting the patentee’s freedom to operate.
The patent is granted on the basis of a patent application, which has to describe the invention. This patent application is made available to the public, generally 18 months after filing of the first patent application for the invention. The protection conferred by the patent is defined by the patent claims, which may cover a product, device, apparatus, method or process incorporating the invention. To be patentable, the product, device, apparatus, method or process defined in the patent claims must be new and involve an inventive step with regard to the prior art available to the public at the filing or priority date of the patent application. Hence, disclosing your invention prior to filing a patent application, ruins its patentability and thus deprives you from the most efficient protection for technical inventions.back to top
In order to obtain a patent, one has to file a corresponding application with the relevant patent office.
The patent office determines whether the patent application meets the conditions for obtaining a patent determined by the state.
While certain states require their patent office to carry out a substantial examination of the application, other states only impose a formalities check.back to top
European patent law tell us that, among others, “programs for computers,” as such, are not regarded as patentable inventions.
This means that an invention which involves technical considerations and which is implemented as a computer program can be patentable if it otherwise satisfies the criteria of novelty, inventive step and industrial applicability.
In the United States, the debate on the patent-eligibility of computer-implemented inventions is still ongoing in 2014. A decision of the Supreme Court is expected this year and will hopefully clarify the situation.back to top
As a counterpart for the temporary monopoly granted by a patent, the state requires you to describe your invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.
Furthermore, the state will normally publish your patent (application) 18 months after its filing date or its earliest priority date. Exceptionally, the state may decide to keep your invention secret for reasons of national security.
Note, however, that your application will be treated confidentially by the patent office during the period preceding publication. During that period you receive the search report if you requested one, which will give you a better understanding of the scope of protection that you might obtain. If you consider that the obtainable protection does not justify the disclosure of your invention, you may avoid its publication by actively withdrawing the application before the patent office has terminated the preparations for publication.
If you file an application in the United States and certify that the invention disclosed in the application has not and will not be the subject of an application filed in another country, you may avoid publication during the pendency of the application. However, once you file an application relating to the invention in another country, the U.S.P.T.O. must be informed accordingly and it will then publish the application immediately.back to top
If your patent application relates to several independent inventions that are not linked in a manner which makes them a single general inventive concept, your application will not be considered satisfiable for the unity of the invention requirements.
For this reason a corresponding notification will be issued by the patent office. If you do not restrict the application to one invention, it may even be refused. However, you may prosecute the other invention(s) via one or more divisional applications.back to top
3rd party observations are comments and remarks relating to the patentability of the invention claimed in someone else’s patent application. This instrument may be used, in some jurisdictions, to make the patent office aware of grounds that preclude the grant of a patent.
Where they are available, 3rd party observations can be considered an inexpensive tool to prevent or delay the grant of someone else’s patent. However, there is no guarantee that the 3rd party observations are duly considered by the patent examiner.
An important drawback of filing third party observations during the grant proceedings is, for instance, that your adversary will be informed that his patent application hit a nerve while it is still possible for him to divide the application. Instead of fighting one patent application, you might have to deal with a multi-headed hydra.
If you consider submitting 3rd party observations, it is advisable that you discuss the advantages and disadvantages in your particular situation in advance with one of our patent attorneys.back to top
Opposition proceedings are available in certain jurisdictions to fight someone else’s patent.
Oppositions may be filed, for instance, against a German patent within three months from the publication of the grant or against a European patent within nine months from the publication of the mention of the grant.
Opposition proceedings are administrative proceedings conducted before the patent office that involve the patentee as well as the opponent. They are substantially less expensive than an invalidation action, which has to be brought before the competent court.
If you file an opposition, you must indicate the grounds that you consider to preclude the grant of the patent. Only grounds provided for by the law may be used, e.g. unpatentable subject matter (e.g. lack of novelty or lack of inventive step), insufficiency of the disclosure or extension of the scope of protection beyond the content of the originally filed application.back to top
According to Directive 2008/95/EC of the European Parliament and of the Council, “a trade mark may consist of any signs capable of being represented graphically, particularly words, including personal names, designs, letters, numerals, the shape of goods or of their packaging, provided that such signs are capable of distinguishing the goods or services of one undertaking from those of other undertakings.”
In simpler words, a trademark is a sign, or any combination of signs, capable of distinguishing your goods or services from those of your competitor. Its main functions are: (1) to identify the commercial source of the goods and services; (2) to warrant a quality level with regard to the customer; (3) to associate a specific “image” with the goods and services.
To derive sustainable competitive advantages from your trademarks, you must be sure to have the exclusive right to use your trademarks to identify your goods and services.
The exclusive right to use your trademark is obtained through its registration with the competent national or international authority. To be eligible for registration, your trademark has to be represented graphically and must be capable of distinguishing your products or services from those of your competitors. Signs that can be registered as a trademark include: a word or combination of words; a graphical sign, such as a logo; a combination of colours; a shape; a sound (represented by sheet music) etc.back to top
When registering a trademark you have to provide a list of the goods and services for which you claim the exclusive right to use the trademark.
A strategic selection of the goods and services to be covered by the trademark is of the utmost importance for an efficient and sustainable trademark protection.
On the one hand, the list of goods and services should be drafted in such a way that it encompasses the broadest possible coverage. For example, linked services/products and spare parts should not be forgotten.
On the other hand, while it appears tempting to draft a long list of different goods and services, this increases the costs of the filing and prosecution, often triggers unnecessary opposition proceedings and may even render the trademark vulnerable, if you do not satisfy the use requirement.
Our trademark lawyers will assist you in defining the most adequate list of goods and services for your business.back to top
The design determines the visual appearance of a product. It consists in the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation, which make the product attractive for the customer.
Registration of your design allows you to obtain protection for a period of up to 25 years. Unlike unregistered designs, registered designs are protected against similar designs even if these have been developed by someone not having knowledge of the original design.back to top
Copyright protects literary and artistic original works, of whatever genre and form or expression.
To be eligible for protection by copyright, a work must have
- a certain expression or form; and
- an original character.
Abstract ideas, concepts or information as such are not protected by copyright.
The copyright exists from the moment of the creation of the work. It lasts for the author’s entire lifetime and remains in force until 70 years after the author’s death, to the benefit of his successors in title.
Formal registration of the work is not necessary for the copyright to come into force.
In order to obtain a proof that you were in possession of a creation on a certain date, you may file an i-DEPOT with the Benelux Office for Intellectual Property or an “Envelope Soleau” with the French Intellectual Property Office. As an alternative, you could deposit a copy of your work with a public notary.back to top