Patents
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 a sole right – 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 an incentive and financial reward.
Patents provide their holders with a period of legal protection of technical innovations in selected geographical areas. Patent holders thus receive a stable functional differentiation and competitive advantage. The sole right means that for a specified period of time, the inventor can prevent others from making commercial use of the invention. In return, the inventor has to publically disclose the invention, 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 novel, i.e. it must not previously have been disclosed anywhere in the world.
- Inventive step – it must involve an inventive step over the state of the art prior to the date of the application, and must not be obvious to the skilled artisan in the relevant technical field.
- Industrial applicability – it must be able to be used or made in any kind of industry, which implies a technical character and a technical effect, as well as an ability to be reproduced.
If you consider patenting your invention, it is essential that you keep it secret up to the date of application so as to meet the requirement for novelty. If you have reasons for not applying for a patent for your invention, you should consider publishing the technical findings instead, in order to prevent others from applying for a patent for 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, nor to publish the invention, but to keep it a trade secret.
A patent is a national right
There is no such thing as a “world patent”. Patents are national rights that must be applied for and paid for in each and every country where protection is desired. A Swedish patent is an agreement with the Swedish State that in Sweden, the patent holder will, for a period of 20 years (there are some exceptions to this rule, however, see below) from the date of application enjoy the right to prevent others from using the technology claimed in the patent.
What does Swedish patent protection involve?
In Sweden, anyone who makes professional use of a patented invention without the permission of the patent holder infringes the patent and can be sued in court for infringement.
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, use by others of the technology in other countries, where the technology is not protected, cannot be prevented.
Principal routes for patenting abroad
The national route
The national route implies filing national applications directly in each specific country where you want patent protection and payment of the appropriate official fees.
In Sweden it may be convenient to start with a Swedish patent application, and then to move on to other countries within 12 months of the priority date – i.e. from the date of filing of the Swedish application. Each subsequent national application will be processed by the national authority in the respective country.
If you consider obtaining patent protection in two or more European countries, it may be more cost-efficient to file a European patent application with the European Patent Office (EPO). The EPO serves as a central patent office for many European countries, granting European patents for all member states.
When granted, the European patent will eventually result in a range of national patent rights – one for each country included in the European patent application.
The international route
The international route can be chosen directly or on the basis of e.g. a Swedish or European patent application. International applications are based on the Patent Cooperation Treaty (PCT).
In the International approach a PCT patent application will lead to the national patent authorities within 30 months of the date of filing of the first patent application (instead of 12 months in the national route).
In this way it is possible to postpone the decision in which countries to apply for a patent. It also gives applicant time to evaluate the commercial potential of the invention and offers the opportunity to postpone the costs associated with filing applications abroad.
Today, the PCT route makes it possible to apply for patents in approximately 148 countries on the basis of one single International application.
How long does the protection last?
In Sweden, and in most other countries, patents are granted for a term of 20 years (although for some categories of inventions – primarily pharmaceuticals – the maximum patent term may be extended to 25.5 years).
A patent application and a granted patent is maintained through payment of annual fees to the patent authorities. When a patent expires, third parties can no longer be prevented from using the patented technology.