How to get a patent? What is a Patent and How to Apply for One in Different Countries?
Get comprehensive information and learn more about the advantages and disadvantages of applying for and maintaining a patent
Why apply for a patent, how does it work, and when can you apply for a patent? And when might it be better not to apply for one? Consider this scenario: you have a great idea or perhaps you've already developed it into an invention. You're contemplating how to monetize your idea or start your own business with this innovation. Remember: the primary reason for wanting to apply for a patent is financial gain. This is why: developing an invention into a marketable, innovative product typically requires a substantial investment of money, energy, and time. Applying for a patent can be an excellent way to ensure recouping these costs and securing the profits for the inventor. Patent application protects against unauthorized replication and sale of the outcome of all that effort by competitors. If someone does so, they are infringing upon the inventor's patent.
Patents are part of intellectual property rights
Patents are part of the so-called patent law, which is part of the collection of what is known as intellectual property rights. This is also referred to as IP or IPR, derived from the English term "Intellectual Property Rights." Intellectual property rights encompass a wide range of rights related to intangible creations and innovations. It protects various forms of human creativity and intellectual endeavors. Besides patents, the following rights are also included under the umbrella of Intellectual Property Rights:
- Copyright law: This right protects the original creative works of authors, such as books, music, software, and artistic creations. It provides authors with exclusive rights to reproduce, distribute, and publicly present their work.
- Trademark Law: Trademark law protects the identity and reputation of a brand. By registering a trademark name, logo, or slogan, a company obtains the exclusive right to use these brand elements for their products or services, preventing confusion with competitors.
- Design Rights: This right focuses on protecting the appearance of a product or industrial design. It allows designers to obtain exclusive rights for the visual aspect of their creations, such as shapes, ornaments, and surface decorations.
What does patent law say about patents and inventions? According to patent law, an invention is considered an invention when it involves "the surprising practical result of creative human action." This distinguishes an invention from a discovery because the latter pertains to finding something that already exists. Discoveries are therefore not eligible for patenting. Below, we will discuss the conditions for applying for and obtaining a patent for an invention as regulated by patent law.
What is a patent, and when can you get a patent?
Patents are granted for inventions of all shapes and sizes. They range from the ingeniously designed indentation in a biscuit to groundbreaking new medicines that have undergone years of laborious research. In addition to the classic new invention, a patent application can also involve an improvement of a product (whether or not already patented), a production process or method (a manufacturing method), or even a new application of an existing product. One can also apply for a patent for a (new) combination of existing products or methods. According to patent law, there are three requirements an invention must meet to qualify for protection. These are:
- Novelty: An invention cannot belong to what is referred to as "the state of the art" according
to patent law. This means the invention must be new. There shouldn’t be a product in the market based on the
same idea. Therefore, it's not possible to file a patent for something already patented, but also not for
something that has existed for a long time, well-known, yet has not been patented coincidentally. Determining if
your idea is new can be quite challenging. On another page, you can learn how to determine if your invention is
truly new: does my idea already exist?
The requirement of novelty also implies that the invention must not have been made public (entered the public domain) before filing the patent application. Thus, confidentiality is crucial if you're considering applying for a patent. Because this is so important, let's delve a bit further into confidentiality in relation to the public domain below.
- Inventiveness: The invention must not be "obvious." For someone working in the same field, it should not be completely logical to think of the same thing. The invention must offer a surprising solution to an existing technical problem. Particularly, the subjective aspect of inventiveness often leads to discussions with the examiner (a patent application is evaluated by an examiner).
- Industrial Applicability: The invention must be practically applicable.
Confidentiality in Patent Applications
When seeking a patent to protect your invention, it's crucial to understand that confidentiality in patent applications is highly important! If there's any publication describing the invention, it can absolutely be a show-stopper for a potential patent grant. Confidentiality is crucial until the application is submitted! Confidentiality takes various forms, not only limited to printed (or written) text.
Confidentiality in patent applications is not just about formal scientific publications but encompasses any form of disclosing the invention that would place the idea in what is known as the public domain. Therefore, all publications like articles in (scientific) journals and newspapers, book chapters, (scientific) posters, theses, abstracts on the internet, abstracts in conference reports can pose a problem.
It's common to discuss your developing invention with various experts (verbally, via emails, letters, faxes (do the latter two still exist?)), for instance, to build a prototype. To protect the novelty of the invention, it's wise to work with a confidentiality agreement at such times. Also, oral transmission in the form of a lecture, with or without a PowerPoint presentation, should be avoided. However, this doesn't apply to work meetings and closed meetings where attendees are known. Yet, in such cases, it's wise to inform the attendees about the confidential nature of the meeting as you plan to file a patent application. However, work meetings are often announced through flyers and posters on bulletin boards in an organization like a university. In such cases, you don't know all the attendees, so it's advisable not to disclose anything about the invention.
Once an invention has been made public, the confidentiality is breached, and it doesn’t matter whether someone has actually become aware of the idea or not. The fact that the invention has entered the public domain is enough to block a successful patent application. In such cases, filing a patent application becomes futile. So, when you write the idea in the sand on the beach of an uninhabited island in the South Pacific, and it (officially) no longer makes sense to file a patent application.
Be cautious when describing your invention!
It's a misconception to think that describing the invention in abstract terms and omitting details won't cause any problems. If the brief description discloses the novelty, it's possible that the invention is no longer patentable. This often happens, especially in interviews and even in newspapers.
Not every aspect of an invention needs to be new to file a patent. Often, an invention comprises several elements separately published in various public publications. In such cases, patenting the combined invention is only possible if the combination offers something new and surprising.
Often, filing a patent application becomes a race against time because the invention will be published on a specific date, breaching confidentiality. In such cases, the date of disclosure is crucial. For a scientific article, the journal's dispatch date is considered the date of disclosure. For a thesis, it's the date the thesis leaves the printing press.
As it's often necessary to discuss your invention with others before applying for a patent, it's beneficial in such cases to sign a confidentiality agreement. That concludes the obligatory confidentiality. Now let's move on to the second requirement an invention must meet to qualify for patenting.
Protecting an Idea Through a Patent Application?
And here's something important: It must be a genuine invention. Initially, it's not possible to apply for a patent solely on an abstract idea (just describing what the idea is). Only when the idea is elaborated in detail in the application (how exactly does it work?) does it become an invention and can the application be processed and the patent granted. For instance, if it's about the idea of a wireless charger for mobile phones, it needs to be described in as much detail as possible regarding its components, construction, and exact functioning. What can be protected is only the chosen concrete realization of the idea. Consequently, it's possible for another inventor to be granted a patent for a wireless charger for mobile phones that operates in a completely different way. In such a case, there's no infringement on the patent of the first inventor. Nevertheless, there might be a benefit in applying for a patent solely based on the idea because often collaboration with other companies or individuals is necessary to further develop the idea. However, sharing crucial information entails risks, so it might be wise to "preemptively" file a patent for your concept. This allows you to establish a strong position and protect your intellectual property while collaborating with external parties. The page about how to patent an idea further explains how this works and why it can be a strategic move, helping you maintain an edge over the competition. As mentioned above, a confidentiality agreement can also be used to ensure confidentiality in collaborations. Finally, we address the importance of a Material Transfer Agreement (MTA), a legal document establishing the terms for sharing material between involved parties.
During a patent application, merely indicating what the invention is won't suffice. To qualify for patent, the inventor must provide a description and drawings as accurately as possible, detailing how the invention works and how it can be built. However, sometimes it's possible, within the first year after filing the patent application, to demonstrate through laboratory experiments that the invention actually works. Hence, saying "the invention concerns a coffee machine that uses coffee pods" isn't enough. The patent will only be granted when the inventor precisely explains how the machine is built and how it functions. This grants another inventor the opportunity to apply for a patent for a coffee machine using coffee pods but built and functioning differently.
Applying for a Patent with the Assistance of a Patent Attorney
Creating a patent application is not a simple task. The description of the invention must be so clear that an expert can understand and apply it.
The complete description of the invention, based on which the patent is granted, is called the patent specification. Besides the invention itself, it also describes who the inventor is (or who the inventors are) and who submitted the application. In principle, the applicant is also the owner of the patent and thereby the owner of the profits earned. Of course, it's great when, besides being the inventor, you're also the patent owner, but often that's not the case. If the inventor is employed by a company or a research institution, the employer often submits the application and becomes the owner of the patent. However, (company-wide) agreements can be made regarding the distribution of earnings between the owner and the inventors, which often happens. To encourage employees to be creative and develop innovative technology, inventors are often promised a fixed percentage of the revenue.
A patent specification has a fixed structure. First, a summary of the "state of the art" is provided, and the existing technical problem is described. Then, the invention appears as the surprising and inventive solution to the problem. The invention is described in detail, often accompanied by drawings to clarify the text. There's also a section of conclusions or "claims." These claims are numbered and precisely outline what the patent will protect. They are structured to describe the invention and its application from broad to narrow.
Writing a patent application is a highly specialized task for which a patent attorney is best suited. This is a sworn expert who is often not only scientifically/technically trained but also legally educated. A patent attorney, working under strict confidentiality as a trusted advisor, often collaborates closely with the inventor to describe the invention as accurately as possible from a legal perspective. It's evident that properly describing the invention and presenting the claims as robustly as possible are crucial for adequate protection.
Another critical aspect where a patent attorney can support applicants of a patent application is in monitoring all the deadlines related to the application. The patent application procedure has numerous legally established deadlines that must be met. If not adhered to on time, the application may become invalid. This includes formally requesting the next phase in the procedure or timely paying certain fees (called taxes) associated with the entire application process. Additionally, the examiners may request certain documents (such as translations), which must also be submitted on time. The attorney monitors these deadlines for the applicant.
As mentioned, a patent protects your invention and provides strong grounds against potential competitors. However, there are, of course, drawbacks associated with establishing and maintaining patents. Below, let's summarize the advantages and disadvantages:
9 Reasons to Apply for a Patent
- As the owner of a patent on your invention, you're the only one entitled to earn money from it;
- Establishing a patent prevents competitors from introducing the same product to the market. If they do, you can take legal action to force them to stop selling the product based on your invention;
- A patent represents a certain value listed on your company's balance sheet under intangible fixed assets. After all, a patent is an asset that can generate revenue. Therefore, a patent increases the value of your company;
- Without a patent, many investors might not take you seriously when you seek funding to further develop your invention into a product. Investors seek as much certainty as possible, but without a patent, anyone can simply replicate and sell the product. Hence, having your invention patented is a significant advantage when talking to investors to raise capital. Even if you're taken seriously, you'll have more to explain;
- You don't have to exploit the patent yourself. It's an asset that holds value, and you can sell it. It's also possible to grant permission to another party to bring a product to market based on your patent for an agreed-upon fee. This is called granting a license on the patent;
- Last but not least, a patented product not only increases the company's value but also enhances its image. That holds value as well;
- If you want to acquire, retain, or even expand your market position, a patent can greatly assist in doing so. Competitors have to consider your patent and cannot simply introduce a similar product based on the same invention. Parties already exploiting the same invention but haven't patented it will have to withdraw from the market;
- If, for any reason, parties want to do something with your invention, they'll have to negotiate with you. After all, you hold the patent for the invention, making your negotiation position much stronger;
- If there's a large market with substantial earning potential, there will not only be numerous potential customers but also many potential parties willing to take a license on your patent. Consider the previous point regarding negotiation positions in this context;
6 Reasons Not to Apply for a Patent
- Applying for and maintaining a patent consumes both time and money, especially when aiming to protect your invention in multiple countries;
- You need to monitor if someone is infringing on your patent by selling a product that incorporates your invention. There isn't a patent police that checks all products globally for infringement. Hence, it's crucial to consider whether establishing a patent, for instance, in Japan is worthwhile if you're unable to monitor the market there and, if needed, pursue legal action;
- The patent description becomes public after 18 months. Everyone, not just your grandmother, but also your competitors, can read precisely what you've invented and how it works. If that's undesirable, an alternative could be total confidentiality, which is sometimes feasible. The most famous example is Coca-Cola, whose recipe for the drink invented in 1886 remains a secret. In contrast, a patent becomes public after 18 months and is valid for a maximum of 20 years (with a few exceptions);
- It might not be advisable if the patent isn't robust enough. This means competitors can easily work around your invention. They can devise another technique for proper technical functionality, enabling them to develop and market the same product without infringing on your patent, against which you'd have no recourse;
- It might not be worth it if you cannot effectively monitor the market for patent infringement. If your product is widely copied and sold in China without your awareness, seeking a global patent might not be beneficial. Or even if you're aware but lack the resources and power to initiate legal proceedings in a foreign country against the infringing party;
- Consider if you can sell your product for an extended period without a decline in demand. After all, a patent lasts for years and entails substantial costs. If your product causes a short-term hype that fades in three months, it's essential to question the value of applying for a patent. It's possible, from the filing date, your invention is protected. Yet, in such a scenario, focusing on maximizing sales during the product's peak popularity rather than engaging in prolonged legal battles against patent infringers might be more worthwhile. Of course, you can do both: file an application, maximize sales, and then engage in lengthy legal battles. It depends on your priorities. Even in the case of a very small market, it's essential to assess whether incurring the costs for a patent is justified;
To make a long story short: you can qualify for a patent on your invention when it's not just an idea but a genuine innovation that is new, inventive, and practically applicable. Additionally, it's crucial that you've kept the idea confidential and haven't disclosed it publicly. If you believe you meet the aforementioned conditions for a patent, the question arises: “Okay, I think I can apply for a patent, but how do I get a patent?”
How to get a patent?
How does the procedure for a patent application work? If you believe you've made a genuine invention and want to protect it with a patent, it must be applied for. Remember: you can get a patent for your invention when it involves a genuine innovation (not just an idea) that is new, inventive, and practically applicable. It's also crucial to keep the idea confidential until the application is submitted.
First, let's cover the general process of applying for a patent. When filing an application, you'll receive a filing date, a significant milestone because if the patent is granted, this date marks the commencement of the actual patent. The maximum validity period of a patent is 20 years from this filing date, providing 20 years of protection against infringement by other parties. This critical date is also known as the priority date.
The filing date is essential because within 12 months from this date, a patent can be applied for in another country, and the priority date will also be recognized in that country as the commencement date of protection for the invention. After submitting the patent application, the assessing authority reviews whether it meets the fundamental requirements of a patent: is the innovation new (compared to the prior art), sufficiently inventive, and industrially applicable? Moreover, is it more than just an idea but a well-developed invention?
Following the assessment, the applicant receives a report on the findings, known as the Written Opinion. If the application isn't immediately rejected, for instance, if it's evident that the invention isn't new, the applicant has the opportunity to modify the description of the invention or the claims. Usually, it takes some time before the assessment report is sent to the applicant, allowing time to gather additional evidence (such as conducting further experiments) to demonstrate that it's not merely an interesting idea but indeed a genuine invention.
As mentioned earlier, applying for a patent is specialized work. A patent application must be drafted according to a specific format, and your invention must be described very precisely in so-called claims. You can do it yourself, of course, but that's not wise and highly discouraged. Remember, the eventual patent holds the formal status of a legal document, and if it's challenged by another party (your competitor!), you'll have to defend it in court. Therefore, it's crucial that the application is well-prepared.
A patent attorney is an individual, usually with a background in natural sciences and often holding a doctoral degree. After that, they undergo legal training to become a certified representative with the legal authority to prepare and submit patent applications on behalf of others. Subsequently, the representative can guide the client further and provide advice.
Patent attorneys can operate in various ways, either for a company, as independent professionals, or together with other representatives in a partnership or a company. Generally, like 'regular' attorneys, they are paid per hour. An initial consultation is often free, but it's advisable to verify this before scheduling an appointment.
As mentioned earlier: before approaching a patent office, it's wise to first determine whether the idea is new, known as a novelty search. You can handle much of this yourself, and your hours are probably cheaper than those of the patent attorney. More information about this can be found on the page that asks the question: does my idea already exist?
The Various Patent Procedures
Now onto the patent procedures themselves. The initial step toward obtaining a patent is contemplating in which country or countries you wish to validate it. To make an informed decision, consider your ambitions. How extensive do you envision your success? Do you perceive your invention merely as a potential side income alongside your daily work for your employer, or do you see it as the inception of a multinational corporation with yourself as the CEO? What is the size and accessibility of the market in the various countries you are considering? Are you familiar with these countries, and can you navigate them easily? Do you foresee opportunities to find entities willing and able to introduce your invention as a product into the market? And, importantly, are you capable and willing to bear the costs for applying, maintaining, and potentially defending a patent in the countries you've selected?
Not too long ago, innovative startups with limited resources primarily aimed for the Western world as their market: Western Europe, USA, and Japan, perhaps also considering Australia and Canada. Patents were sought in these countries. However, with ongoing globalization and the rise of markets like China, Brazil, and Russia, nearly the entire world has become your potential market. Therefore, the advice is to thoroughly consider your options and not simply apply for a worldwide patent or restrict solely to the Netherlands.
With the choice of countries, you must also decide on the method of patent application. Broadly speaking, there are four possibilities:
- The National procedure. In Europe, this is a simplified version of the European procedure;
- The European procedure. This involves a joint procedure, yet you must register the patent separately in each selected country;
- The Unitary Patent. An appealing idea: one Europe with a very large unified market and one patent (similar to the USA). It would be incredibly beneficial. No more separate registrations and fees in all countries but a unified patent across all member states. In the EU, there had been extensive discussions for a long time, and we were nearly there. The plan was to commence with the unitary patent around 2017, but the Brexit discussion has cast uncertainty over this matter. So, a little more patience is needed;
- The Global Application (known as the PCT route). This is a joint application procedure for countries that have signed the PCT agreement.
Below, we'll delve a bit further into each of the four options, and you can navigate to separate pages for more information.
The National Route
In the Netherlands, this is a relatively simple patent procedure where every application submitted in the correct format is granted a so-called "stamp patent." Interestingly, each application is also assessed for novelty, inventiveness, and industrial applicability. However, the outcome of the assessment doesn't influence the granting of the patent. This provides several significant advantages for the applicant. This route is often taken when it's important to establish a patent position quickly and at a relatively low cost to promptly assess the invention, for example, to persuade investors or grant providers. The validation of the granted patent's legal validity only takes place in the event of a conflict, in court! For more information about the costs and how and where to submit an application, check the national route in your own country.
The European Route
This route allows for obtaining a patent simultaneously in 19 European countries through a single procedure. The advantage here is that you don't have to start separate patent procedures for each country. The filing date of the application is called the priority date. After the European Patent Office grants the patent, it is converted into a bundle of national patents, which then fall under the respective national patent laws. The validity period of the patents in different countries is 20 years from the date of filing.
The Unitary Patent for EU Countries
For years, the European Union attempted to introduce one patent for all EU countries. This is referred to as the Unitary Patent. Similar to the aforementioned European route, this would mean that patent applications would no longer need to take place separately in each European country. This saves effort, time, and money. The delay in its implementation was primarily due to Spain and Italy, which insisted on using their own languages in the patent texts. After much ado and prolonged negotiations, the European Parliament decided to proceed without these two countries, and it was expected that the first EU patent would be established by early 2018. However, then came Brexit, and it was postponed again. But the decision is made. As of June 1, 2023, the Unitary Patent System was implemented in 17 European countries.
The International (PCT) Route
The Patent Cooperation Treaty (PCT) is an agreement between approximately 100 countries, including all major (Western) industrial countries. This is, in essence, a patent procedure lasting a maximum of 30 months before proceeding to the European or National level (the national phases).
Part of the patent procedure during the European and PCT routes includes a novelty search conducted by the PCT office. Novelty is one of the three requirements an invention must meet to be patented. The invention is compared with what is known about the problem it solves on the day prior to the submission. This is called the "State of the Art" or "Prior Art" in English. This not only involves documents but any disclosure of the invention. If the invention has already been disclosed (accidentally or not), it becomes part of the "state of the art" and is no longer considered new.
