Changing to a Single Common European Patent

The common single European patent system has long been proposed but never yet adopted. The present system provides for grant of a single European patent which covers 27 member states. Once granted, the patent is 'validated' in the chosen member states only. Previously however, this involved filing a translation of the entire application in the national language of the country concerned. As such, this validation procedure could be prohibitively expensive for many patent proprietors, and especially for individuals.

The London Agreement was then introduced in May 2008 whereby a number of the European member states agreed to reduce or abolish the translation requirement. This was in an effort to make the validation step of the Europe patent system more affordable. This has worked.

However, there are still many proponents wishing to see a single common system which provides protection throughout Europe and which effectively does away with the validation step and thus the expense of final translations. A main argument in favour of this single common European patent is to make obtaining EU patent protection more comparable in terms of the cost with that of obtaining US patent protection.

To date, all member states of the European Union have now indicated their willingness to join the common EU patent system, bar Italy and Spain. The intention is presently to grant the common European patent in the three main languages, being English, French and German. However, both Italy and Spain are formally objecting to this at present.

The creation of a single common Europe patent system has recently hit a stumbling block in terms of how to actually enforce granted rights resulting from a unified European patent. The European Court of Justice has recently indicated that the creation of a European Community Patents Court to deal with matters concerning the single common European patent would not be compatible with present European Union laws, causing issues regarding enforcement of patent rights at a national and European level. It has been mooted that the single common Europe patent system could not proceed without also the creation of a unified patent litigation system.

If the single common EU patent system does proceed, despite the potential cost savings, it will only inspire confidence and thus become a valuable asset if the resulting European patent rights can be implemented and relied upon fully and unambiguously within the framework of national patent laws of the member states.

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Ways a Patent Can Be Invalidated (Part I)

In the US, patents are presumed to be valid. However, the presumption is rebuttable and is usually challenged during patent infringement litigation. The validity of patents can be attacked in various ways, including:

1. Lack of Enablement.

In general, the patented invention must be disclosed in a manner that allows a person of ordinary skill to make and use the invention. This is the consideration the government is bargaining for when it gives the patent holder exclusive rights to the patented invention for several years. The rationale is that the government wants to promote the progress of science and technology, and by encouraging inventors to disclose their inventions to the public through their patents, the public may later use the technology once the patent term is over. If the invention is not adequately disclosed, and undue experimentation is required to make and use the invention described in the patent disclosure, the patent will be considered invalid and unenforceable.

2. Lack of Candor

The US patent examination process is conducted in an ex parte manner. Only the applicant (or the applicant's representative) and the patent examiner are involved in the process. No third parties are involved. Third parties are not given any opportunities, at least during the examination, to voice out their reasons against granting the patent, and thus the system relies on the applicant's candor. US patent laws require applicants to disclose any prior art known to them as well as any activities that have material implications on the patentability of the invention, such as offers for sale, public use, or public disclosure. These things are usually disclosed through an Information Disclosure Statement or IDS. If no IDS has been submitted during the course of the application, the validity of the patent may be questionable.

3. Wrong Investors Listed

It is crucial to name the right inventors on a patent application. A patent can later be invalidated if it did not include the correct inventors. Inventors and patent owners should not be confused. Inventors are defined under US patent laws as those that have contributed to the conception of the invention. If the idea was conceived by an employee of your company and you were not involved in the conception, you should not list yourself as an inventor simply because you want to make sure you own the patent. The appropriate action to take is to have the employee assign his rights over the invention to the company.

Another situation where inventors are often mistakenly identified is one involving research teams. Once again, only list those that were involved in the conception. Just because a researcher happened to work on the project does not automatically make him an inventor. The researcher may happen to be involved in refining the invention to make it work more efficient. This generally does not constitute conception, and the researcher should not be listed as an inventor in the patent application.

Another situation where wrong inventors are often listed involves supervisors and lower ranking employees. If the idea was conceived by a lower ranking employee, it does not mean that you have to list the employee's supervisor as the inventor. The key is to determine who contributed to the conception of the invention that is claimed in the patent application.

Because there are many nuances in obtaining patents, it is important to seek the advice and guidance from a registered patent attorney.

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How To Patent An Idea - Patenting Will Increase Your Idea's Value

If you have come up with a brilliant idea that could be used within a manufacturing industry or business, the first thing you should do is patent that idea. The process of patenting will protect you. If you do not patent your idea and discuss it with a company, and then in time you find out they have used your idea, you will have absolutely no recourse if you wanted to sue that company. To know how to patent an idea, your invention should fall into one of the three categories below.

In the USA, a government-issued patent lets an individual stop other people from using or selling their item within the US, or import it into the US.

You cannot receive a patent on something that anyone could have figured out, or something like the law of gravity (it wasn't your idea!) or any printed materials (these are covered by copyright).

A Utility Patent protects the rights of an individual who has invented an innovative technological product, for example a machine, a chemical compound or a new component part of a machine. That patent will be extant for 20 years from the application date and a utility patent is the most commonly applied for patent.

A Design Patent protects a product's original ornamental design, but does not cover the design philosophy or mechanical characteristics. These patents last for 14 years from the date the patent was granted.

A Plant Patent is these days the least applied for and is issued when a new species of plant is discovered and this plant must be very different from previous discoveries.

There are other considerations in knowing how to patent your idea, and if it will be accepted.

Your invention must be useful (if it wasn't nobody would want it anyway!) The idea should be a viable technical or industrial process, an innovative way of doing business or a new chemical mixture or compound that could be useful within a manufacturing process.

• It must be proven to work! That goes without explanation. • It must be unique, not a new spin on something very similar - that may be an infringement. • You cannot patent a basic or very simple idea; it has to be an item or process for which the inventor will have to submit a detailed description and drawings which will be scrutinized. • You cannot patent earthquakes, fire, rainstorms or thunder, for obvious reasons.

To protect yourself from someone else using your idea you must patent that idea to receive the law's full protection and knowing how to patent an idea is very important.

You can later sell the patent rights outright, or enter into a licensing agreement with a manufacturer, which leaves you as owner of those rights.

If you have an idea that you think will make you millions of dollars, be prepared to hire a patent attorney, which will cost you a couple of thousand dollars. Patent infringement must be considered, and even after thorough research you may not be aware of a similar idea that has already been patented - so don't open yourself up to an expensive law suit!

When you know how to patent your idea successfully, be aware that it can cost you many thousands of dollars. But if you are onto a winner, your returns will be substantial.

The Software Patent Process   Gene Patenting Fact   Software Patent Infringement Strategies   Why Can Patents Be Granted for Multiple Similar Inventions?   Using Archived Software Products As an Intellectual Property Portfolio