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Applying for a patent: how does it work?

As an entrepreneur, you want to meet market demand and stay ahead of the competition. Patents can play an important role in this. But what is a patent? Why should you patent? And what is needed to obtain a patent? On this page, we explain all the ins and outs around patents, so you can make your innovation more profitable.

Table of contents

Types of intellectual property rights

There are various types of intellectual property rights (IP). The patent right protects the technical process or product of an invention for up to 20 years. It is an exclusive right: (without your permission) others are not allowed to manufacture, use, sell, rent, or supply your invention.

The trademark right protects trademarks registered in the trademark register. You can register various types of trademarks, such as a word or device mark, dimensional mark but also sounds and even fragrances can be a mark.

The design right can be used to protect the physical appearance (such as patterns and 3D shapes) of new and unique designs and products. Within the EU, it is possible to register the design up to 12 months after the first disclosure of the design.


Non-disclosure or patent?

In choosing between a patent and non-disclosure of your innovation, four things are important:

  • Can you keep it secret? Sometimes non-disclosure is not possible, for example if the innovation is a paperclip with a particular shape that is obvious to everyone.
  • Can it be copied? For example, Coca-Cola is highly successful at using non-disclosure to prevent the recipe from being reproduced.
  • Is it patentable? The innovation must meet the requirements for patenting.
  • Is the life cycle of the innovation long enough? It takes some time before the patent is granted. If the economic lifespan of the innovation is shorter than the time required to obtain the patent, patenting is not interesting - from an economic perspective - in most cases.

Objectives of patents

By dealing strategically with your intellectual property, you will strengthen your position and allow your innovation to yield optimal returns. It prevents others from using your technology; a patent offers protection against misuse by others. In addition, a patent not only strengthens your competitive position, it also makes you more appealing to partners and investors because it offers them additional security. Moreover, intellectual property enables you to generate added value through licenses or sales. This enables you to create security during a phase when it matters for your business.

Patent requirements

If you want to obtain a patent, then your invention must meet three requirements: novelty, inventiveness and industrial applicability.

Novelty:
This means that your invention was not disclosed anywhere in the world before the patent application was filed. Not even by you. The novelty requirement is generally not a major barrier and not all aspects of the invention must be new. A combination of familiar things or a smart choice could already bring novelty to your invention. If you have thought carefully about your invention, there is often already a new aspect to point out.

Inventiveness:
This means that your idea must not appear obvious. The question whether an invention is inventive is often judged on the basis of whether the invention improves on what is already known, for example, because it solves a problem for which the solution was not obvious to the
average craftsman. Suppose in a fictive world, chairs have always been made with exactly four legs and never less. But they have a problem because they wobble. You suddenly realize that you can solve the wobbling issue, not by adding an additional stabilization element, but by actually removing one of the legs. In this (fictive) world this could potentially be a patentable invention.

Industrial applicability:
This means that the invention must be made or applied for industrial or commercial purposes. This is generally a low barrier and almost all technical inventions that are commercially applicable meet this requirement.

Patent process

First, take a look at the video below where we explain the patent application process:

Patentprocedures lijken vaak ingewikkeld en kostbaar. De route met de drie fasen die hieronder wordt geschetst spreekt velen aan, omdat we daarmee de kosten uitstellen en opties openhouden. Het is de meest gangbare weg naar octrooibescherming.

Phase 1 – Premier depot
The first step is the priority application, also called premier depot or first filing. In this phase, your patent attorney advises you about the application strategy, based on your objectives. He or she will then draw up the priority application based on your wishes. This is an important moment because it is decisive for your patent rights. The date on which the application is filed is called the priority date for the patent, which is valid for a maximum of 20 years. Anything published after this priority date will not affect the validity of your patent. You will receive a novelty report after about eight months. With your patent attorney, you discuss the following steps to strengthen your patent application.
The text of the priority application can be changed, but no additional content can be added.

Phase 2 – International phase
In any following application you can add substantive content, that must be filed no later than 12 months after the priority date. This is often an international application, also called PCT (Patent Cooperation Treaty) application. You can add a new implementation, example, or even a new idea to this. A separate, and therefore later, priority date applies to these additions. Unlike the name suggests, an international application does not result in an international patent, but it does provide the possibility to eventually establish patent rights in almost all countries in the world. It is also a way in which to buy more time and delay costs because you do not have to immediately decide which countries you want the
patent in. The application and novelty report are published after 18 months.

Phase 3 – National / regional phase
You must choose the countries you want a patent in no later than two-and-a-half years after the priority date. Our patent attorney will advise you when making this choice. Do you want a patent in several European countries? Then a European patent application could be a good choice. The European Patent Office will examine the novelty, inventive step, and industrial applicability of your invention.
In this phase, your patent attorney often consults with this organization in order to guide your application through the process as smoothly as possible. A European patent is issued after two years on average. That is followed by validation in the countries themselves, after which you pay an annual maintenance fee per country.

 

What does a patent cost?

On average it costs about €8,000 to obtain a patent in the Netherlands and Belgium and €14,000 in Germany. A patent attorney will develop the application strategy for this based on your objectives and draft and file the patent application. The final amount depends on your objectives and the complexity of your invention. Do you want a patent in several European countries? If so, then generally you file an application for a European patent and the granted patent is subsequently validated per country. This is often cheaper than separate granting procedures per country.

A European patent granting procedure costs an average of about €20,000 until it being granted, after which the validation fees are an average of about €1,000 per country (global estimates). In countries outside of Europe, the costs for obtaining and maintaining a patent can vary considerably. This has to do with translation requirements, lengths of procedures and complexity of the invention, among other things. You also pay maintenance fees to maintain your patent rights.

 

Frequently asked questions about patents

Before filing an application, you need to draft a written application for a patent, or have this drafted for you, and file this with a patent-granting authority. To do this, you need a description of the invention. This description should enable a skilled person to replicate the invention, which may involve using practical examples and/or drawings, for instance. The application also needs to include one or more patent claims which define the scope of protection required for the invention. A further requirement is an abstract of the application. Finally, you need to clearly show in the application that you are applying for a patent. In Belgium, the Belgian Office for Intellectual Property (OPRI) provides a special form that allows you to indicate that you require a patent based on the enclosed documents (the description, claims, and so forth, mentioned above).

You will also need to pay all of the required fees. These depend on the country or region in which the application is filed.

There may be additional requirements, depending on why you are applying for a patent. For instance, if the application include sequences of nucleotides or amino acids, then the description should also contain a list of these sequences. Applications that do not meet the requirements will be rejected.

Furthermore, it is also important that you have the formal right to file the application. In principle, you have this right if you are the inventor. Whether this is also the case in practice depends on the specific situation and national laws. For instance, under the laws of the Netherlands and Germany, the right of employees whose work activities encompass inventions passes in principle to their employer. In Germany, this is regulated by the Law on Employee Inventions, which incidentally also includes guidelines on remuneration. It is important to properly document how you are the holder. You do not need to demonstrate this when you file the application, but inadequate or missing documentation can later lead to disputes about who is the holder, or even to the patent becoming invalid.

It is advisable to seek advice from a patent attorney who is a specialist in all of the substantive and procedural aspects involved with applying for a patent.

Patent-granting procedures can involve a considerable investment. As a patent is essentially a national right, both the granting phase and the maintenance procedure need to be separately completed in each country.

Firstly, there are costs involved with drawing up and filing the application. These often range from 6,000 to 10,000 euros, including official fees. In certain countries, including the Netherlands and Belgium, you do not usually need to incur any additional costs until the patent is granted. Once the patent has been granted, you will have to pay maintenance fees each year.

However, in many countries, including Germany, a granting procedure involves additional costs. 

Anyone who would like patent protection in multiple European countries usually chooses a so-called European patent. This is a cost-effective and uniform granting procedure that is centrally administered via the European Patent Office. This procedure applies to all countries that are signatories of the European Patent Convention. The costs of preparing and filing the application and the procedure up until the granting of the patent can vary considerably, depending on the complexity and length of the procedure. For a European patent-granting procedure, these costs are usually in the region of 20,000 euros. Once a European patent has been granted, you have to choose the participating countries in which the patent should be valid, where you will have to deal with the necessary formalities (this is known as validation).  For instance, many countries require the patent, or at least the patent claims, to be translated. You will also have to pay maintenance fees each year. The validation fees in Europe can quickly rise to over 1,000 euros per country. That is why many companies choose to limit the number of countries where a granted European patent is valid, for instance, countries with the largest potential markets or countries where their main competitors have a manufacturing facility. 

Similar considerations are involved in granting and maintaining patents in large countries outside of Europe, such as China, Japan or the US.

Yes, it is. However, it is important to be aware that a patent application is a legal document that provides a very accurate description of technical knowledge with the aim of converting this knowledge into the broadest possible right. Patent applications, as all legal documents, need to meet various requirements. The patent-granting procedure often lasts for years and it is not possible to add new aspects to the application at a later date. This means that the invention must be described accurately when the application is filed. A number of basic rules apply to the formulation and wording, which is part of the expertise of a patent attorney. If you do not have experience with correctly describing the technical knowledge for which you are filing the patent, there is a high chance that the text will fall short after going through a granting procedure that lasts many years. For instance, this may be because the application no longer protects the required product or process, or that a patent cannot be obtained because the invention has not been sufficiently disclosed, even if the invention meets all of the substantive requirements.

The speed depends greatly on where one would like to obtain a patent, which procedure one follows, and the strength of the invention that one would like to protect. 

The patent-granting procedure is extremely predictable for Dutch and Belgian patents. The patent is granted around eighteen months after the application has been filed. This patent is not formally tested for validity, but it is provided with a novelty report, including a written opinion issued by the European Patent Office (EPO). The patent can even be granted after a shorter period of time if requested by the applicant. Legally speaking, the patent can be granted from the moment that the patent application meets all of the formalities for granting the patent.

The patent-granting procedure for German patents does include a formal substantive assessment. The granting procedure takes an average of three years, provided that a request to extend the term has not been submitted.

The granting procedure for European patent applications (which can also be granted for the Netherlands, Belgium, and Germany) takes an average of two years, although in exceptional cases it can take as long as 10 years. The applicant has a significant influence on the speed of the procedure. For instance, if a patent is required quickly, it is possible to apply for an accelerated assessment.

However, there are advantages to slow granting procedures, as they allow many of the costs to be delayed. A slow granting procedure also makes it more feasible to estimate the commercial value of the invention and to coordinate the granting procedures accordingly. This also keeps the competition in the dark for longer about the precise scope of the protection of the final patent. 

Slowing the granting procedure and delaying the costs are also important reasons for why organizations that operate internationally opt to first file an international application (PCT application), and then file national/regional applications based on this. In this way, it is possible to gain a delay of up to 30 months.

That all depends on the situation. Generally speaking, the sooner you apply, the better, because an invention needs to be novel and inventive in order to be patented. The sooner you file an application, the smaller the chance that knowledge about it will have been made public or that a competitor who has independently invented more or less the same thing will have already filed a patent application. However, it is beneficial to file an application, particularly in the fields of chemistry and life sciences, when there is a good substantiation of the advantages of the invention and its uses at the time of application. It is not possible to change the substance of a patent application at a later date. That is why you should be aware of how the various features are connected and which areas of application are useful when you file an application for a patent. Patent applications that are speculative and unsubstantiated may be rejected on the grounds of a lack of disclosure or inventiveness.

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Jasper Groot Koerkamp

Jasper Groot Koerkamp

  • European and Dutch Patent Attorney
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Eline van Kappel

Eline van Kappel

  • Dutch Patent Attorney
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