Frequently Asked Questions: General questions

A patent is a government-granted monopoly on an invention, for up to twenty years. As long as the patent is valid (the owner has to pay a yearly fee to maintain the patent), the owner can exclude others from (commercially) exploiting his invention. It may happen that two people both hold a patent on an essential aspect of an invention, and then neither of them can exploit the invention without the other's permission.

In return for getting a patent, the inventor must reveal the details of how the invention can be constructed and applied. This way everybody is free to study the invention and develop improvements, which helps advance science. Or, as the US Constitution puts it, this "promotes science and useful arts". And once the monopoly granted by the patent expires, everyone is free to exploit the invention commercially.

No. Patents are exclusively national affairs. A US patent does not help you at all against someone who makes your invention in Canada, and a German patent cannot provide protection against French pirates. Some countries have concluded treaties under which patents can be granted that are valid automatically in all the parties to the treaty. The most famous one is probably the European Patent Convention.

That depends on how you define "Europe". The European Union does not have a harmonized patent law. Every country still has its own patent laws, and inventors must apply in each European country separately to get a patent.

Since 1973 there is the European Patent Convention (EPC), a treaty between Austria, Belgium, Switzerland, Cyprus, Germany, Denmark, Spain, Finland, France, Greece, Ireland, Italy, Liechtenstein, Luxembourg, Monaco, the Netherlands, Portugal, Sweden, Turkey and the United Kingdom. Patents under the EPC are granted by the European Patent Office (EPO) in Munich. An inventor now only has to follow one procedure at the EPO and to indicate the EPC countries in which he wants to have a patent.

A European patent gives the same rights as national patents in the EPC countries chosen by the applicant. Once granted, a European patent can only be annulled by separate proceedings in each country. However, during the first nine months after the grant of the patent, anyone can start an opposition procedure at the EPO to annul the patent in all these countries at once.

Those aren't patents, but published applications filed under the Patent Cooperation Treaty (PCT). This treaty permits applications to file one application centrally and to get one literature search done, before going to the various national patent offices for examination. This is a substantial saving in cost and effort. The central filing is done at the International Bureau (IB), which falls under the WIPO.

What the IB publishes is the text as the applicant filed it, possibly with some voluntary amendments to the claims by the applicant as a result of the literature search. The applicant is free to claim whatever he wants, so it can easily happen he claims something that is long known or that is totally trivial.

After the publication and the search, the application and the results of the search are sent to all the national patent offices indicated on the front page of the publication. The applicant then has to defend his claims to get a patent in those national offices.

A patent provides protection for up to twenty years, counting from the filing date (the date given with reference numeral 22 on the front page). US patents with a filing date before June 8, 1995 provide protection for up to seventeen years counting from the date of grant (the date given with reference numeral 45), or 20 years from the filing date, whichever expires later.

However, the patent holder is required to pay maintenance fees to keep his patent valid. In most European countries, these fees are yearly. The USA requires maintenance fees to be paid at 3.5 years, 7.5 years, and 11.5 years after issuance. If the holder does not pay a maintenance fee, the patent becomes abandoned. Many patents are abandoned before the full twenty year term because the cost of the maintenance fees (which increases with the lifetime of the patent) exceeds the patent's value.

Yes, both in the USA and in Europe. US patent law does not place any restrictions on the type of invention that can be patented, as long as it is something "made by man", and produces a useful, concrete and tangible result.

The European Patent Convention (which governs the granting of European patents) states that "programs for computers as such" are excluded from patentability. In the last few years, the definition of the phrase "as such" has been restricted more and more, so that in practice almost any type of computer program can be patented.

For more information, see Software patents under the European Patent Convention.

In the USA, yes. In Europe, an invention can only be patented if it solves a technical problem. While there is no exact definition of when a problem is "technical", a problem in the field of economics or finance is definitely not technical. However, if the solution is technical, or involves "technical considerations", it is usually possible to rephrase the problem to make it a technical one. Keep in mind that "technical" here is meant as "in a field of technology", and not to technicalities of a business method as such.

So, a business invention that involves for example taking out a life insurance policy on an employee to reduce his pension contribution does not solve a technical problem. However, an e-business method for managing auctions (an economic activity) would be patentable if, for example, the method reduced the bandwidth requirements for the auction server or allowed anonymity for participants during the bidding.

For more information, see The patentability of business methods at the European Patent Office.