This post was first published on 26th August, 2014.
The concept of law or the legal system is not new. But when someone says “I work in Intellectual Property Law, as a Patent Advocate,” he is often met with a look of incredulity. The path of Patents is less traveled and it is no surprise that there are several misconceptions regarding Patents in the mind of the layman. Here’s unraveling some of the most common myths about Patents.
1. I’ve got an Idea. I should get a patent.
This is a very common misconception about patents. Patents are not granted to merely ideas. To patent an idea, there must be some form of material embodiment of the idea. It must be transformed into a process or product so that it manifests as an invention to the Patent Office.
2. A Patent is the awesomest form of Intellectual Property protection one can get.
A Patent is just one of the many forms of Intellectual Property Rights that one can get. At times, an invention could be such that it is not worth getting a patent for. The best form of Intellectual Property for you would be the one which can give the maximum Return on Investment. For Coca-Cola, the most valuable Intellectual Property asset is the Trade Secret of its ingredients.
3. Your work is done the moment you file a Patent Application.
Making an application for a Patent is just the first step. It is a long journey from Application to Grant of Patent and it has many hurdles and milestones like Publication, Examination, Oppositions. Although not officially, effectively, your rights with respect to your invention start from the date of publication of your application.
4. Patents are only for the Biggies in the Industry.
Absolutely Not! Big Corporations invest a lot in R&D. Hence, they go in for protecting all their research results. Many Patent Offices across the world give incentives to individual inventors and small entities through reduced application fees and other costs. Many Governments provide incentives to their Small Enterprises to promote inventions and provide assistance in protecting their Intellectual Property.
5. I created it. So I should get a patent.
Every invention cannot get a patent. For a patent to be granted, it must satisfy 3 basic criteria – that it must be new, it must have industrial applicability and it must not be obvious to a person skilled in the Art (field pertaining to the content of the patent application). A Patent is granted only if all these three criteria, among others, are satisfied. If somebody has anticipated your work either by prior publication or prior use, you will not be granted a Patent, even though you (may think that you) created it.
6. If I modify a patented product, I cannot be sued for infringement.
This is not correct. Even by making modifications to a patented product, you may still be held liable for patent infringement. Patents may be infringed literally or by equivalents. You may not be infringing a Patent literally if you modify it, since literal infringement requires the modified product to directly correspond to the claims of the Patent. However, if the modified product contains any element(s) identical or equivalent to the elements claimed in the Patent, then you may be infringing the Patent by Doctrine of Equivalents.
7. Having a patent assures my success in the market.
This is completely untrue. There are many patents which never made it to the market. It is also wrong to think that having a Patent makes it easy to license it to big Corporations. The value of a patent depends on its marketability. A Certificate of Patent Grant is no yardstick to determine the success or value of an invention.
8. I am advised not to disclose my invention details till the Grant of Patent. So I will not disclose my invention fully in the Patent Application.
A Patent is granted only upon provision of a complete disclosure of the invention, so that it can be used by others when it falls into the public domain, i.e., on expiry of the term of Patent. Failure to completely disclose information of the invention will result in refusal of Patent Grant.
9. If I get a patent in one country, I can enforce it worldwide.
Patent rights are territorial in nature. You can enforce your Patent Rights only in the country in which you have obtained the Patent Grant. However, you may obtain a Patent in all the countries you wish to enforce it.
10. I found something in an expired patent. I can re-patent it.
Patents, once expired, cannot be re-patented. You are permitted to use the expired patented invention. However, you cannot get a Patent on an expired Patent or modifications thereof.
Many Patent myths are circulating in today’s society. Remember, a Patent is only one of the forms of protecting your intellectual property. Never think that you will be granted a patent on every aspect of your invention. You can only get a right on what you claim. Because there are many misconceptions about patents, it is important to seek the advice and guidance of a registered Patent Attorney or Patent Agent.