Patents
A patent is a temporary exclusive right granted by a public authority in exchange of the public and complete disclosure of the invention. It allows the rightholder to forbid others to use the patented invention. Typically, the maximum duration of a patent is 20 years from filing.
Patentability
The major conditions for an invention to be patentable are novelty (i.e. the invention must not already be known to the public) and inventive step, meaning that the invention must not be obvious from what is known. Because of these criteria it is very important for inventors to keep their invention secret until the patent application is filed.
Filing & Grant
Different systems exist to file patent applications and to obtain the grant of a patent
National route: In virtually each State of the world, there is a national authority in charge of the grant of patents, generally called “Patent Office”. For example, in France, the INPI (Institut National de la Propriété Intellectuelle) is in charge of receiving patent applications and granting national French patents.
Regional Offices: In certain regions of the world, cooperations establishing a joint patent office for a number of States have been set up to allow applicants to obtain patent protection in a single, cost-efficient, procedure. In Europe, the European Patent Office receives applications and grants patents for about 40 States in the region, including all EU countries.
International filing systems: International collaboration is part of the DNA of the patent system. As early as in 1883, a treaty (Paris Convention) was enacted which provides inter alia for mutual recognition of filing dates (priority) during a period of 12 months (priority year). Thereby the need to rush for filing everywhere as soon as possible was considerably alleviated. In 1978, the Patent Cooperation Treaty (PCT) entered into force, which allows today to post-pone decisions on filing in about 150 countries until 30 months after the first filing of a patent application.
Opposition and Invalidation
Granted patents are generally presumed to be valid but sometimes they are not. That is why there are procedures to challenge the validity of a patent.
Opposition: During 9 months after the grant, both the European Patent Office and the French Patent Office allow any third party to challenge the validity of the patent the Office has granted through an opposition procedure.This is an administrative procedure in the patent office. In the case of the European Patent Office, the opposition impacts all the States in which the patent has been granted.
Court procedure: The patent validity can usually also be challenged in court, either by initiative or as a defense in infringement proceedings. The Unified Patent Court which is expected to start operating in 2022 will provide the opportunity of an invalidation action with effect for all 25 contracting member states of the European Union.
Patent enforcement
Infringement action: Using a validly patented invention without the consent of the rightholder is forbidden. The system of the different countries allows a patentee to request a court order to stop an infringement and to recover damages, if appropriate. The Unified Patent Court which is expected to start operating in 2022 will provide the opportunity of an infringement action with effect for all 25 contracting member states of the European Union
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