Patents
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Intellectual property law does not protect an idea alone and the idea must be reduced to a physical object or expression of the idea. IP law protects new and novel things, although "novelty" is defined differently in different IP legislation. IP law creates a temporary monopoly for the owner of the IP rights which can then be exploited. We will see how these basic tenets are dealt with in each of the four cornerstone areas of IP law: design rights, patents, trade marks, and copyright.
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What is a Patent?
(Unless otherwise specified, this content is based on information provided by Alison M. Ross of Pinsent Masons. More information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com)
Patents are governed by the Patents Act 1977, as amended. They deal with the protection of inventions. They protect new technical solutions to technical problems. Most people will associate patents with engineering, major scientific advances, and drug and cosmetic developments, but in fact these are only a fraction of the areas in which patents are applicable. Almost all machines, products, and processes and their parts can be patented, provided that they meet the relevant criteria.
Patents protect inventions which are new, inventive, and have an application in business and industry. "New" means that the subject of the patent is not part of the "state of the art" at the time the application is made. The state of the art is the sum total of human knowledge available to the public anywhere in the world as at that date. This is a high standard and further underlines the need for secrecy in the development of patentable inventions. The patent must be a complete innovation and cannot just build upon existing ideas. Again this is a high standard as an application will not succeed if it is merely the application of a well known product for a well known purpose, or it is a new combination of features which already exist. The product must be capable of being used in any industry, and this emphasises the practical requirement of any potential patent.
In return for disclosing the way the invention works, the inventor is given a genuine monopoly for up to 20 years. Patents are viewed as the most powerful type of intellectual property since they protect not just the specific form of an invention but the surrounding field as well and the inventor can effectively exclude everyone else from the marketplace. If someone independently creates something which performs the same function in the same way as it is described in the patent documents, then that person will be infringing the patent, whether or not they had any knowledge that the patent existed.
Restrictions
Certain things cannot be patented such as discoveries, theories, and mathematical formulae. Literary, dramatic and artistic works are protected by copyright, as are rules, schema, computer programs and the presentation of information. However, if a product is created through those means then that product may be eligible to be patented. As with trade marks, there are certain restrictions in the interests of morality and a patent will not be granted for an immoral purpose, for plant and animal varieties, nor for certain micro-biological processes. (As you may be aware, there is controversy in the field of biotechnology with regard to patents and there is a move within Europe to bring the patent law of the European countries in line with the USA and Japan and to allow certain biotech inventions to be patented.)
Drawbacks
The patent registration system is the most expensive of the IPR registration processes, one of the slowest, and one of the most robust forms of protection.
The great drawback of the patent system as it currently stands is the cost of obtaining a patent in the first place, and then the cost of enforcing it if it is subsequently infringed. A registered patent is granted on a country by country basis and the patent is subject to the laws of each country accordingly. This is where the costs add up as each country has separate registration costs and the costs of obtaining local legal advice in each country may be considerable. A further difficulty with patents is that different countries may interpret the protection of the patent registration differently, so that one country may consider the patent to be infringed by another product whereas another country may not. This introduces an element of uncertainty for patent owners as they do not know in which countries their rights are valid and will be upheld and competitors are uncertain where competing products may or may not be deemed to infringe the patent.
Patenting Procedures
The Patent Offices and the legislative bodies of their countries have been working to harmonise international and European patent procedures in an effort to simplify the patent process by allowing for multiple patent applications in a number of jurisdictions. There is a strict format to the registration process and the services of a patent attorney are highly advised for any potential applicant. The application is critical since the protection you end up with depends on what is set out in the description of the product in the application.
Computer Programs: Patent or Copyright?
Software development has grown steadily in recent years and today the major cost component of a business computer system is the software. Software, rather than hardware, generally determines the success of a particular application of computer technology. Given the amounts invested in the development of software, the interest of the developers in their ability to protect that investment as much as possible and to recover their development costs has also increased.
To date, the main source of IP protection available for software has been copyright. This is still true in the UK. Software is considered to be a literary work for the purposes of UK copyright law. Computer programs are protected on the same basis as literary works. Therefore, provided the program is original, its author will have the exclusive right to copy the program, issue copies to the public, demonstrate the program to the public, and adapt or translate the program.
However, converting a copyright program into or between computer languages and codes would normally constitute an adaptation of the work. Likewise, storing a copyright work in a computer amounts to copying the work, and running and displaying the work will involve copying. Any such use would therefore be infringement if done without the consent of the copyright owner. Since this is untenable in relation to computer programs, the law was amended in the 1990s to specifically deal with software. Exceptions to the copyright owner's right to prevent others from making a copy of the protected work were introduced to enable actions which would normally constitute an infringement of copyright to be excluded in relation to software:
- Acts performed for the purposes of studying the ideas and principles underlying a program;
- The reproduction or translation of code if necessary for achieving interoperability of an independently created computer program; and
- The production of back-up copies by a lawful user.
European and UK Legislation
In the UK, computer programs have generally not been successful because the requirements for patents are generally too high a standard for software applications to successfully meet. The majority of applications will not be "new", and will not be inventive as they often involve the application of a well known product for a well known purpose. Most will be capable of industrial application, but the patent application will fail if all three requirements cannot be met.
Under the current European and UK legislation computer programs as such are not eligible for patent protection. However, the courts have had to deal with the interpretation of patent law in order to deal with a technology which was not imagined at the time the original legislation was drafted. Although the courts have not necessarily been consistent in their decisions, as a result, case law has been built up by court decisions in this area and certain key claims have been limited, but successful. Obviously there is a large amount of uncertainty in this area and the differences in the interpretations of the courts of the European Member States has contributed the this uncertainty.
US Legislation
By contrast, the situation in the US patent system is quite different. The US system recognises the patentability of software, mathematical formulae and business processes and this paved the way for the patentability of internet related systems and e-commerce based systems. As in the European systems, there are still general requirements of novelty and inventiveness in light of the prior art in order for the patent to qualify for protection.
As a result of the uncertainty in this area and the divergence between the approaches of the US and Europe, the European Commission is reviewing the patentability of computer programs and computer-implemented inventions and further legislation is expected to be forthcoming. Indications are that Europe will remove the restrictions on the patentability of software. Businesses which have invented software or business methods should consider applying for patent protection now on the basis that the restriction may be removed by the time the patent application reaches the examination stage.
Further Information
- Gordon Ringold (Surromed): "When and How are Patents Important?" in Stanford Entrepreneurial Thought Leader Lectures (video)
- Elon Musk (SpaceX): [http://edcorner.stanford.edu/authorMaterialInfo.html?mid=393 "Patents and Paypal" in Stanford Entrepreneurial Thought Leaders Lecture (video)
- Further information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com.
- The UK Patent Office publishes guidance on patents, trade marks, designs and copyright, and can answer queries relating to the registration procedures.
- The Intellectual Property Office, a government website maintained by the DTI, contains general information about IP law.
- Detailed trade mark advice and details for trade mark agents can be obtained from the Institute of Trade Mark Attorneys.
- Further information on data protection and privacy can be obtained from the Information Commissioner's Office.
