The purpose of the patent system
From the perspective of society, the general purpose of patent rights is to promote industrial development. Whoever has contributed to this development with an official invention is accorded sole rights - i.e. a patent - to its technical performance and is given a set period of time in which to productise, manufacture, market and commercialise his or her invention as incentive and financial reward.
Patents provide their holders with a period of legal protection of technical innovation in selected geographical areas. Patent holders thus receive a stable functional differentiation and competitive advantage. Sole rights mean that for a specified period of time, inventors can prevent others from making commercial use of their inventions. In return, they have to publish these inventions, correctly and completely, so as to allow others to take the technical development on to the next stage.
Patentability - what can you patent?
For an invention to be patentable, it must fulfil three requirements:
- Novelty - it must be absolutely new, i.e. it must not previously have been recognised anywhere in the world.
- Technical effect - it must provide the solution to a given technical problem.
- Level of invention - it must stand out clearly in relation to the state of the art prior to the date of application, and it must not be obvious to a professional in the technical area in question.
If you want patent protection for your invention, it is essential that you keep it secret up to the date of application so as to meet the requirement for novelty. People with grounds for applying for patents for their inventions should consider publishing their technical development to prevent others applying for patents for the same technology.
From the date of publication, the technology is no longer new and therefore no longer patentable. However, in some cases it may be more appropriate neither to apply for patent protection for nor to publish an invention, but to keep it as a trade secret.
A patent is a national statement of sole rights
There is no such thing as a global patent. Patents are national statements of sole rights, that must be applied for and paid for in every country where protection is required. A Swedish patent is an agreement with the Swedish State that in Sweden, the patent holder may, for a period of no more than 20 years (there are some exceptions to this rule, see below) from the date of application enjoy sole rights to the technology defined in the patent documents.
What does Swedish patent protection involve?
In Sweden, anyone who makes professional use of a patented invention without the permission of the patent holder is in breach of the patent and can be pursued through legal channels.
Whoever holds a Swedish patent is thus protected within the national borders of Sweden against anyone using the patented technology without permission. On the other hand, anyone and everyone is free to use the technology on other markets that are not covered by the protection.
Principal approaches to applying for patents in other countries
The national approach
If you choose the national way, this involves you filing applications directly in each country where you want protection, and paying the appropriate duties in each country.
A usual approach in Sweden is to start with a Swedish application and then move on to other countries within 12 months of the priority date - i.e. the date on which the first application was filed. Every additional national application is processed by the national authority in each country.
If you want patent protection in more than 3-5 Western European countries, it may be more cost-efficient to file the application with the European Patent Office (EPO). The EPO servers as a central patent office for many European countries, and has the authority to grant national patents for all the member states.
When such patents are granted, the European application is divided into a range of national patents, one for each country included in the patent application.
The international approach
The international approach can be chosen directly or on the basis of a Swedish or European application. International applications are based on the Patent Cooperation Treaty (PCT).
The international approach leads the PCT application to the national patent authorities within no more than 30 months of the first patent application (instead of 12 months through the national approach).
In this way, it is possible to postpone the decision to apply for patents in countries other than the first country chosen, which provides time to evaluate the commercial potential of the invention and/or the opportunity to postpone the costs linked to applications abroad.
Today, the PCT process makes it possible to apply for patents in approximately 142 countries on the basis of a single international application.
How long does the protection last?
In Sweden, and in most other countries, patents are granted for 20 years (although for some categories of inventions - primarily pharmaceuticals - the maximum patent period may be extended to 25,5 years).
Patent applications and, subsequently, accorded patents are maintained through the payment of yearly fees to the patent authorities. When patents expire, everyone is free to use the technology, without permission and without the obligation to pay financial compensation.
Infringement and monitoring technology
It is important to monitor patent rights and to take measures against infringements. A good way to prevent infringements of exclusive rights to a patent is to monitor registrations of patent applications within the relevant area of technology and applications filed by close competitors.
Patent monitoring can be used commercially. One way of discovering patents and patent applications that may be at risk of infringement is continuously to check patent publications in the area of technology in which you are active.
This can both prevent your own infringements of another party's rights, and give you an indication of whether a competitor is working on something closely related to the invention on which you yourself have protection.
Patent monitoring can also provide information about your competitors' product development. It makes it easy to follow the general technological development within specific areas, and can provide impetus for your own development. Furthermore, it can open up business opportunities through licensing.