What is a patent?
Governments grant patents to incentivise and reward invention by granting the patent owner a limited-term monopoly on the right to stop others from making, using or selling the invention as claimed in the patent. An invention is a novel and inventive product or process.
In exchange, the government requires that the inventor provides knowledge of the invention to the public. This is achieved by publishing the patent so anyone can view it and learn how to make the invention.
Patents for most technology types (non- pharmaceutical) have a maximum term of 20 years.
Patents are ‘territorial‘, i.e. a NZ patent has zero effect in the USA and vice-versa.
It’s important to be aware that a patent doesn’t give you the right to make your invention, only the right to stop others. It is possible that in making your invention you have used technology covered by patents owned by others and you may therefore be ‘infringing’ their patents.
Patents can add value to a business or may be valuable by themselves.
There are many reasons why patents can be valuable and we’ve outlined a few below.
Patents can be licensed so that the owner receives license fees from another business who may want to produce the invention.
A patent is an asset and can be sold or used in the same way as other assets.
Advertising that your product or service is covered by a patent can be an effective marketing tool. You can even advertise you have a patent pending before its granted.
A patent enables the owner to sue others who are infringing the patent and prevent them from continuing to use, make or sell the patented invention.
Patents can be used as a shield against others using a MAD (Mutually Assured Destruction) strategy with patents acting as deterrents to stop others suing, i.e. if you sue me, I sue you.
Marking your products with a patent number and advertising that you have patented the product can deter your competitors from trying to copy your product.
Investors looking at a business want to know that the business has protected its Intellectual property, particularly patents for any innovative products.
Government or other organisations offering funding for research and development may make the funding contingent on obtaining a patent for the end product.
Having patents conveys that you are inventive and improves your status in the minds of your customers and competitors.
Patents are assets that add value to your business and can help improve the sale price of your business should you want to exit.
How to Patent?
Obtaining a patent is a difficult process and our recommendation is to always consult a patent attorney to get them to do that work for you, whether that’s us or another experienced attorney.
It’s highly unlikely you will be able to write your own patent well enough for that patent to have value.
We’ve included some general information on the patenting process below to give you an idea of the important stages of obtaining a patent.
Is my invention patentable?
Each country sets rules about what is and isn’t patentable. The main common requirements are:
Novelty – this means that your invention must be new to the world. An invention is novel if the combination or at least one feature is not described in the ‘prior art’. The prior art consists of everything that existed before the date of filing the first patent application for your invention. The prior art also includes anything you have publicly disclosed yourself. So keep it secret until after you’ve applied for a patent.
Inventive – an invention is inventive if it involves an ‘inventive step’ given what people already know from the prior art. Inventive step is a subjective assessment but generally an invention is unlikely to be deemed ‘inventive’ if it is a simple combination of known features that someone in the relevant industry would combine together without any ‘inventive’ effort, to produce a predictable outcome. Inventions with a novel feature are not inventive if there already exists prior art that has an equivalent to that feature e.g. if the novel feature is a rope and the prior art uses a chain and the rope doesn’t provide any unexpected advantage over the chain then that feature is novel but not inventive. Obvious combinations of known features are also not normally deemed inventive.
Not excluded – Most countries have specific exclusions for particular categories of inventions, e.g. in New Zealand a method of treatment of human beings by surgery or therapy is not patentable.
It’s important to conduct patent and internet searching to find any information (called ‘prior art’) that describes similar things to your invention. This searching helps you determine if your invention is novel and inventive before you apply for a patent. Searching also helps you identify competitors and gives you an idea of what products/systems already exist. See our page here on patent searching.
After determining if the invention appears patentable it’s time to describe your invention in detail and work out what features are novel and commercially valuable and then rank them in order of importance. This process will help determine the form of the patent and will help in drafting the patent specification.
It’s important that you provide your attorney with full and detailed information about the invention. This includes:
- how to make and use it,
- what similar technology already exists, i.e the ‘prior art’
- why the invention is better than the prior art
- which features are the most commercially useful
- which features are novel
- the optimum form of the invention as well as all possible alternatives you envisage are possible for each feature of the invention
See our page here for a list of information needed. Your attorney will be able to draft the patent more efficiently if you provide them with detailed information. The specification will also be better quality if the attorney has more information.
Drafting the patent specification
Now it’s time for your attorney to draft the patent specification.
The patent specification is a document of written text and drawings that describe the invention in full detail, how it works, how to make it, what makes it different from the prior art and what you are ‘claiming’ as the invention.
The claims of a patent define what you can stop others from making, using or selling. This means that someone only infringes the patent if their product/system has all of the features written in the claim.
Claims are structured with one or more ‘independent’ claims and other claims ‘dependent’ on the primary claim. You can only exclude others from making, using and/or selling products that have each and every feature in an independent claim. The independent claim should therefore only include the features of your invention which are commercially valuable to you.
For example, an independent patent claim will appear as:
A thing with:
- Feature A
- Feature B
- Feature C
Dependent claims then add additional features, e.g. Same thing as primary claim PLUS feature D.
The patent application can be made after the patent specification has been prepared.
Your attorney will need the name, address and nationality details about the inventors of the invention and the person/company who will own the patent. It’s important that the correct inventors are named as a patent may be deemed invalid if incorrect inventors are named. This means that the patent may be invalid if the CEO is named as inventor when it was actually an employee who devised the invention.
The process and timing of events after making an application vary by country but typically involve:
- Examination – in most countries patents are not granted automatically and are first examined by the intellectual property office to check that all the requirements have been met, this includes conducting prior art searching to determine if the invention is patentable.
- Acceptance – once the application no longer faces any objections in the examination phase the intellectual property office will issue a notice accepting the patent application.
- Grant – once all requirements are met after acceptance the patent will be granted. The requirements after acceptance vary by country but generally involve payments of fees or waiting for a time period giving other entities the option to oppose the application.
Once you have a Patent
Once you have a granted patent you can take action against anyone who infringes the patent, i.e. if they are making, using or selling something that has every feature of at least one of the patent claims as granted.
A patent does not last forever. The term of a patent is typically 20 years from filing the complete specification subject to periodic payment of renewal fees. The renewal fees vary by country but in New Zealand need to be paid annually from the 4th anniversary of the patent application.
Warnings and MythBusting
There are many common mistakes made by people when it comes to patents, these can lead to lost opportunities or huge costs.
Keep it secret!!
Keep the invention secret until you have applied for a patent. If not, then any patent you eventually get may not be valid or you may not be able to obtain a patent.
As soon as you make your invention public or tell someone about it (non-confidentially) the novelty is destroyed. This includes ‘commercial use’, i.e. don’t sell or offer to sell (even secretly) the invention before you’ve applied for the patent.
Some countries (e.g. NZ, Australia and USA) do offer ‘grace periods’ for patents that won’t count your own public disclosure as detroying the novelty in the invention. However, many countries don’t have such grace periods so it pays to keep your invention secret until you’ve file a patent application.
Work out your strategy
Make sure you’ve defined a strategy for the patent. This includes thinking through the technical and commercial aspects of the invention as much as possible before applying.
These are some common myths you’ll hear about patents.
- “I have a patent, now I can make my thing without infringing anyone else’s patents/designs/trademarks/copyright” – NO, a patent only provides the right to stop others from making, using or selling the invention claimed in the patent. It does not give you the right to use other’s Intellectual Property.
- “Change it by 20% and I won’t infringe” – NO, a patent covers what is claimed in the patent. There is no percentage rule.
- “I have a patent application, now I’m protected” – NO, as per myth 1, a patent does not protect you from being sued. Also, you will still need to enforce the patent if you want to stop others.
- “My patent will stop people from copying my invention” – MAYBE, advertising that you have a patent is a strong deterrent but you will still need to enforce the patent if you want to stop someone who is copying it.
- “I have a worldwide patent” – NO, there is no such thing as a worldwide patent and patents are territorial, only having effect in the jurisdiction that you have the patent.
- “Patents are only for revolutionary ideas” – NO, technology normally moves forward in steps rather than leaps. Patents can be useful for the steps as well as the leaps.
- “Patents are just for legal purposes” – NO, there are many uses for patents. See our ‘Why Patent?‘ section.