A patent is a type of intellectual property for technical inventions. The patent provides a disclosure of the invention in exchange for protection of the invention defined by the patent. The patent provides the owner of the patent with the right to prevent third parties to make, use or sell the invention. The protection provided by the patent is limited to the territory for which the patent is valid, and is limited in time, typically up to 20 years. Furthermore, a patent may be transferred between owners, whereby the protection rights provided by the patent are transferred.
In order to obtain patent protection for an invention, an application for a patent must be filed. There are certain requirements for an invention for it to be protectable by a patent. The invention must be novel and inventive with respect to the state of the art. In short, this means that the invention must differ in at least one way that is not an obvious modification of the prior art. Furthermore, a patent may only protect inventions that are susceptible of industrial application.
Another important aspect, which differentiates patent protection from other types of protection (such as trademarks, design rights and copyrights), is that the novel and inventive feature should be a technical feature. As such, the novel and inventive feature may not relate to, for example, a scientific theory, an aesthetic creation, or rules for playing games. However, importantly, it is only the novel and inventive feature that should be technical. Indeed, many patented inventions deal with inventive technical features for games, and furthermore, many patents are a practical application related to a scientific discovery.
A trademark is a type of intellectual property that is typically a sign, design, or expression that is used to identify products or services from a particular source. Thereby, the trademark may be used to distinguish these products and services, from those originating from a different source. As such, the trademark defines the origin of the product or service, and may be used for publicity and advertising. Often, the trademark is a sign for customers that a product or service labelled by the trademark may have some well-defined qualities associated with products and services originating from the party owning the trademark.
The protection provided by your trademark means that third parties may not use your trademark for selling their services or products, except when a licensing agreement is agreed between you and the third party. Trademark protection typically provides protection for use of the trademark in the context of the product or service commonly identified with the trademark. In some countries, it may not be required to register a trademark for obtaining protection for the trademark. However, in most countries, such as Belgium, protection is only provided once the trademark is registered.
Design protection is a type of intellectual property that may be obtained for the appearance of a product, or the appearance of part of a product. The appearance may relate to a shape, colour, texture, et cetera, that distinguishes the design from that of known designs. Design protection may be used to prohibit third parties from using your design in their products, except if you authorize these third parties to use you design, for example in exchange for royalties.
To be able to obtain design rights for you design, the design is required to be novel and have individual character. A design may be protected, without registration, to a limited extent (that is, only from copying of the design) by the rules established in the EU Design Regulation, and only for up to three years. To gain more extensive design rights, and to gain these right for a longer period of time (typically up to 25 years), the design needs to be registered.
Apart from these design rights, a design may also be protected by a copyright, which has different requirements than design rights.
A copyright is a type of intellectual property that is strictly related to works that result from authorship. Protection by a copyright prevents third parties from unauthorized copying and multiplying your copyrighted work. This protection may last for a very long time. For example, in Belgium, copyright protection may last for up to 70 years after the decease of the author. For a work of authorship to be protectable by copyright, the work must be original. However, different from patents, the work to be copyrighted must not be novel: it is only required that it is not a copy of the work of a third party. As such, copyright protection is relatively easy to obtain. Furthermore, the work of authorship must be fixed in a tangible medium of expression, so that it is possible to perceive, reproduce, or communicate the work.
Copyright protection starts from the moment the work has been made. Different from patents and trademarks, there is no obligation for registration. However, there are advantages related to registering a copyright. In particular, such a registration provides the owner of the copyright with a date, and with a description of the copyrighted work. Indeed, when a third party infringes the copyright, such a registration may help the owner of the copyright to prove that the third party infringed the copyright.
Whenever you made an invention, you first may want to assess whether it is worth to apply for patent protection for the invention. There are strong benefits related to the protection provided by a patent, and of course, these benefits come at a cost. When deciding to apply for patent protection, the first step to protecting the invention is to prepare and file a patent application at a patent office. With which patent office the application should be filed depends on where the invention is to be protected. Protection starts from the day of filing of the application, although the scope of protection provided may only be clear after examination of the application, and subsequent grant of the patent, by the patent office.
The strength of a patent, and hence, the scope of protection provided by the patent, strongly depends on the quality of the application, and on the follow-up of any potential objections raised by the patent office where the patent application was filed. Therefore, it is strongly recommended to have you patent application prepared and followed up by a professional patent attorney. Also, any rights on patent protection may be lost when your invention is disclosed before filing the patent application. A patent application should, therefore, first be filed, before negotiating about the invention with third parties, or disclosing the invention to the public.
As such, the first thing to do with your invention is to obtain advice on whether and how to best protect your invention and, if that is wanted, to apply for a patent for you invention. We are always available and willing to provide this advice and prepare a solid patent application that best suits your needs.
There are certain requirements for an invention for it to be protectable by a patent. The invention must be novel, which means that there should be a feature in the invention that is not disclosed in the prior art. Herein, the prior art is understood to be everything that has previously been disclosed to the public, in any form, and by anyone. This may be in the form of a scientific paper, a prior patent, a blog post, a radio interview, etc. Furthermore, the invention must be inventive, which means that the novel feature should not be an obvious modification of the prior art. The invention should be susceptible to industrial application – which is a requirement that is very easily passed. Finally, the novel and inventive feature should be a technical feature. This excludes, for example, scientific theories, an aesthetic creation, or rules for playing games. However, it is only the novel and inventive feature that should be technical. Indeed, many patents deal with inventive technical features for games, and furthermore, many patents require scientific theories to explain their function.
Be sure to contact us for an assessment of the patentability of your idea.
If your invention is protected by a patent, third parties are not allowed to commercially use, produce, or sell your invention within the territories for which the protection is valid.
The first thing to do is to check whether the use of the third party falls within the scope of protection of your patent, for which professional help may be useful. If it appears that the third party indeed infringes your patent, there are several ways to use the protection provided your patent. Firstly, the third party may be contacted to notify them that they are infringing your patent. You may, for example, request them to terminate the infringement directly, and/or require royalties in exchange for their use of you invention. If the third party continuous to infringe your patent unauthorized, you may want to go to court to enforce your patent. This may result in forced termination of the infringement, and/or the forced payment of royalties, e.g., for past use of your invention.
The best way to handle such patent infringement depends on your patent, and on by who, and the way in which, your patent is infringed. To exercise your right in the most suitable and most advantageous way as possible, it is advised to seek professional help. We may look with you into different routes that are available to enforce your patent protection, and may guide you through the steps that are needed along the way. Furthermore, we may act as professional representative towards the infringer or before court whenever that may be needed.
A third party may allege that you copied or infringed a patent of the third party, and request you to either stop using that invention, or pay royalties in exchange for using that invention. Instead of directly obeying to the third party, it may be advantageous to first make an assessment. For example, although the third party alleges that you do infringe their patent, is that actually true? And even if it appears that, indeed, you do infringe their patent: is there a way to invalidate or limit the scope of their patent? Indeed, there may be reasons why the patent is invalid or has a too broad scope. For example, you may know of documents proving disclosure of the invention protected by that patent from before the date on which the application for the patent was filed. Or you may have been selling your product, which contains the invention, already before that application was filed, in which case the patent may be invalid.
As this assessment may be complicated, and may require both technical understanding of your invention and knowledge of patent law, the best way to continue after receiving a notification of a third party alleging that you infringe their patent, is typically to ask for professional help. We are there to determine, together with you, in what way this situation may be handled in the best way for your invention and your business.
The cost of a patent is determined by several factors. An important factor is in which countries you want to apply for patent protection. Typically, the more countries in which protection is sought, the higher the cost. A patent application is typically subject to filing, search, and examination fees at each of the national offices of these countries. However, there are ways in which costs associated with protection in many countries may be mitigated, for example, by filing at the European Patent Office, or through the Patent Cooperation Treaty. Furthermore, patent protection is subject to annual maintenance fees, i.e., yearly payments: you may only exert rights granted by a patent as long as you make these yearly payments.
Finally, a patent application is usually subject to additional costs when professional help is used for preparing your patent application, and for the follow-up before the patent office. The quality of your patent, and the scope of your protection, is highly dependent on the quality of the application and of the follow-up, and required knowledge of both the technical details of your invention, and of patent law. A badly written application may result in very limited protection, or even no rights at all. As such, the costs of requesting professional help for preparing your patent application is usually definitely worth the costs.
Please contact us for a detailed cost estimate for the protection that best suits your needs.
A patent may be used to prevent third parties from using, selling, or producing the invention that is protected by the patent. This protection may be used by the patent owner for financial profits in different ways.
As one example, the patent owner may apply the invention, without allowing third parties to do that, which effectively results in a monopoly position for the patent owner. A monopoly position may allow the patent owner to increase the costs of his products or services, without risking third parties to sell the same product or service at lower prices.
As another example, the patent may be sold by the owner to a third party, providing the third party with the protection. In that case, of course, the previous patent owner no longer has the right to apply the invention.
As still another example, the owner of the patent may authorize third parties to apply the protected invention in exchange for royalties. Such royalties typically depend on the scope of protection of the patent, the quality of the patent, and the number of third parties authorized to apply the invention.
Your invention should meet specific requirements:
- It must have a technical character;
- It must be novel and inventive;
- It must be susceptible to industrial application;
- It mustn't relate to subject-matter that is explicitly excluded from patentability.
The invention should solve a technical problem and should be defined in terms of technical features. However, the word “technical” is not defined, as it is unpredictable what an invention may possibly contain in the future. Only what is not technical can be defined and is thus excluded from patentability. Please contact us to help you find out!The invention should be novel. This means it may not be described by any disclosure that has been done anywhere in the world, in any language and at any time before the date of filing. In addition, it should also be inventive which means it should not be obvious with respect to the state-of-the-art. If you don’t know where to start, our team knows.
Your invention should have an industrial application but as this is considered obvious, this requirement is usually a minor hurdle. Luckily!
If you are eager to find out about non-patentable subject-matters, please contact our experts.