The law provides a number of ways for people to protect their intellectual property. With your IP protected, you can fully capitalise on the commercial potential your invention or idea, while preventing exploitation from others.
Patents are one such type of intellectual property protection. In this guide, we outline what a patent is, what is does and how to apply.
If you are looking to protect an idea or invention, take advice to ensure you are applying for the right kind of IP protection and maximising the legal protections that could be available to you in your circumstances.
What is a patent?
A patent is granted by the Government to provide the right of ownership to the inventor of a new invention for a limited period, with legal protection against the use or sale of the invention without the patent owner’s express permission, and with the right of enforcement against parties that infringe the patent.
UK patents are granted by the Intellectual Property Office (IPO) and they must be renewed to remain valid. Protection under a patent can last up to a maximum of 20 years.
Who can apply for a patent?
Anyone can apply for a patent in the UK if they have invented a product or process which meets the required IPO criteria or are an assignee, such as a company patenting an invention created by employees or that they have purchased from an inventor.
Requirements for a patent application to be granted
Inventions can only be patented if they meet a specific set of requirements:
a) Be new and original. The invention must be the first of its kind with no public exposure prior to the date on which the patent application was filed.
b) Have the potential for application in industry. The invention must be capable of being used or manufactured in some area of industry. In practice, this means the inventions is required to have some kind of practical form, whether as a product for sale, a device, a new type of material or a new method or process which can be utilised by businesses.
c) Demonstrate a step forward in innovation. The invention must go beyond what is known when compared to existing products or knowledge. It cannot be something that would be obvious to an individual who was well informed on the subject or industry.
In addition, there are a number of inventions which cannot be patented even if they do meet the above criteria. It is not possible to patent inventions which are:
a) A mathematic method
b) A scientific method
c) A creation for the purposes of aesthetics, such as dramatic, artistic of literary work
d) A process, method or scheme for executing a mental act such as carrying out business or playing a game
e) A computer program or method for presenting information
f) A variety of plant
g) A method for treating animals or the human body, including methods of diagnosis, new types or techniques for surgery, new types or techniques for therapy
h) A discovery, for example discovering a new kind of bacteria or archaeological find
The exception is in cases where the invention goes beyond just abstract aspects and consists of physical features. If there is enough of a physical representation, the government may grant a patent.
How to apply for a patent in the UK
To obtain a patent, applicants need to apply directly to the UK intellectual Property Office. The process can be lengthy and expensive so it is important to understand the full process prior to initiating an application.
For the benefit of the application, it is critical that the invention is kept private and confidential throughout the process.
The first stage in filing a patent application is to check that your invention meets the criteria; that it is innovative, industry applicable and new. Patent applicants should make sure they complete a detailed search for similar patents or products to the one they are looking to submit in order to make sure their patent is new.
The next step is to prepare your patent application. You can apply either online or by post.
Having completed the patent application, you need to file it and request a search from the IPO. You can either request the search when you submit your application or later in the process but must submit the request within 6 months of when your patent application is filed. You will receive a receipt from the IPO with the date you filed your application and application number. From that point you can refer to your invention as “patent pending” or “patent applied for”. The IPO will then carry out their own search to check that your invention is innovative and new.
You should receive your search report within 6 months. If the IPO search comes back positive and you finalise the patent application submission, your application will be published about 18 months after you file it.
Within six months of the patent publication, you should ask the IPO for a substantive examination and respond to any comments which arise from it. Substantive examinations may not take place until a number of years after your filing of the application.
At the end of the process, usually lasting between 4-5 years, your patent application will either be granted or refused. If successful, you will be able to begin commercially benefiting from your patent as soon as it has been granted, e.g. through selling, licensing or mortgaging the patent.
Renewing your patent
The maximum lifetime of a patent is 20 years, after which the patent and its protections are no longer enforceable.
You must renew your patent on the fourth anniversary of when you filed for it. You then need to renew every year near the ‘due date’ – the last day of the month in which you first filed.
| Year | Renewal fee |
|---|---|
| 5th | £70 |
| 6th | £90 |
| 7th | £110 |
| 8th | £130 |
| 9th | £150 |
| 10th | £170 |
| 11th | £190 |
| 12th | £220 |
| 13th | £260 |
| 14th | £300 |
| 15th | £360 |
| 16th | £420 |
| 17th | £470 |
| 18th | £520 |
| 19th | £570 |
| 20th | £610 |
Failure to renew your patent will mean paying a £24 late fee per month, in a addition to the fee due for the year to be renewed.
Pros & cons of owning a patent
If you own the patent for an invention, you can enforce your right to stop others from using your invention unless they have your express agreement. This means that you can either monopolise the sale and use of your invention, or permit other individuals or companies to manufacture, implement, or sell the invention under agreed upon terms, e.g. on a licence basis or through shares in the company or receiving a percentage of the profits. Should another individual or company infringe upon the patent or agreed terms of use, you will have the right to take legal action to defend your patent and claim for damages.
On the flip side, the patent process itself is lengthy, taking on average 4-5 years to progress from being filed to being approved. There are no guarantees of success. Government figures show only 1 in 20 applicants have their patent approved
It is important to understand the extent and limitations of a patentee’s rights. The Intellectual Property Office is not responsible for preventing others from copying the invention. It is the owner’s responsibility to ensure their idea or invention is not being illegally used. The owner must identify and take action against those infringing the patent – the patent itself simply gives them the legal right to do so. You will also need to fund any legal action to enforce your rights.
On top of the initial fee, if your patent is successful you will be required to pay if you want to renew it. Without renewing the patent and paying the fee, you would lose the patent and it’s legal protections.
Alternatives to patents
If it is not possible to patent your product or the drawbacks outweigh the benefits, there are a number of other ways to protect your intellectual property which may better suit your situation. Some examples include:
Non-disclosure agreements. If your product is only expected to sell for a short period, protecting it prior to launch via non-disclosure agreements may be sufficient. Keeping the product secret until it is on the market should prevent competitors from being able to create, market and sell similar items in the time period.
Trade marks. If you can create a brand around the product and be the first to market it, trade marks give you a lot of rights and protections against potential competitors.
Design Rights. If the most important and innovative aspect of your product or invention is its appearance and design, rather than its functionality and how it works, design rights may offer protection where a patent cannot.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
