Monday - 17 December 2018

What can (and can't) be patented?

Patents are used to protect inventions. They are a very powerful form of Intellectual Property (IP) because they mean that if anyone makes, uses, sells or imports your patented invention without your direct permission, you have the right to take legal action against them. The details of what can (and can't) be patented can often cause confusion for inventors so let's make it simple: what is a patent and how you can obtain one?

 

What is a patent?

A patent is a legal right granted by a Patent Office such as the UK Intellectual Property Office that protects new inventions. From the date of filing the patent application, the right usually has a maximum life-time of 20 years. You don't need a patent to use your own invention, although you do have to be careful that no one else already has patent rights to it. Having a patent does not automatically mean you have a right to use your own invention. It's always best to check with patent experts whether you should apply for a patent and/or what your next steps need to be.

To obtain a patent, your invention must be:

  • something that can be made or used (capable of industrial application)
  • new
  • inventive – not just a modification to something that already exists

 

What can't be patented?

There are certain types of invention that can't be patented. These include:

  • literary, dramatic, musical or artistic works
  • a way of doing business, playing a game or thinking
  • a method of medical treatment or diagnosis
  • a discovery, scientific theory or mathematical method
  • the way information is presented
  • some computer programs or mobile apps
  • 'essentially biological' processes, such as cross-breeding plants, and plant or animal varieties

 

Applying for a patent

Applying for a patent is a long process that can either be made directly by yourself in the UK, or with the help of professionally qualified IP experts. The application for a patent must be made at a Patent Office such as the UK Intellectual Property Office or the European Patent Office, and has to include your personal details, your request for a patent, a set of claims (numbered clauses) that define the scope of protection sought, and a detailed description of your invention that explains how your invention works. This description will preferably also include drawings of your invention. Due to the complexities involved (particularly with regard to drafting the claims) it is strongly recommended that an IP expert is used to help with the drafting and filing of the patent application.  Once the patent application has been filed, it is extremely difficult to make changes or corrections, and so the patent application needs to be correct from the start.

 

It's essential to apply for a patent as soon as possible, because anything about your invention that is in the public domain can be used against your patent application to cast doubts over whether your invention is new or inventive.

 

Mathys & Squire are intellectual property attorneys with expertise in patents, trade marks and design protection, copyright law and IP litigation. Get in touch today to discuss your invention and to receive expert advice about whether your invention is patentable.