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Frequently asked questions
There are various classification systems worldwide, but the most commonly used are the International Classification Codes (IPC) and the Cooperative Patent Classification (CPC). These are systems that classify patent documents based on their content. All bodies that publish and grant patent documents are required to use IPC classes. This means that every patent document published has one or several IPC classes. The IPC is a vast system that comprises over 100,000 different classes.
The CPC is a combined classification system used by the European and American Patent Offices. It is even more extensive than the IPC, comprising over 250,000 classes. This system is increasingly used by national patent-granting authorities (alongside the European and American Patent Offices), such as the China National Intellectual Property Administration and the Korean Intellectual Property Office.
The term ‘patent pending’ means that the manufacturer of the product concerned has applied to patent an invention that is connected in one way or another to the product. Since the average patent-granting procedure can easily take several years and manufacturers do not have to wait until the patent has been granted to commercialize their invention, a product can be labelled with the term ‘patent pending’. By doing this, the manufacturer wants to show that the patent is innovative, while at the same time showing that the manufacturer has not yet actually been granted a patent, because the patent application is still being processed, in other words, the patent is 'pending'.
Patents can be granted for inventions that meet the requirements of patentability, including novelty, inventiveness and applicability or industrial applicability. It is possible to apply for a patent for a medicine that meets these requirements, and even for new uses of existing medicines. However, if the discovery only involves the mechanism on which the known action of a medicine is based, then the discovery is not deemed to be novel for patenting purposes. On the other hand, if the working mechanism leads to an improved form or an improved usage, for instance, a special form of dosage or a procedure for making a medicine, then there may be an underlying patentable invention.
If you suspect infringement, it is very important that you can prove this. If the patent is for a physical product, then the product, for instance, would need to be examined and then compared to the claims in the patent. It is advisable to seek advice from a patent attorney. If there has been an infringement of a patent for a procedure, it is often more difficult to obtain proof of the infringement. However, depending on the jurisdiction in which the infringement is suspected, there are legal instruments which make it easier to discover evidence.
Dutch law, for instance, allows for evidence to be seized if you can plausibly demonstrate that there has probably been an infringement, but you require more proof for infringement proceedings. This could also include hearing evidence from witnesses.
In Germany, the patent holder can require the suspected infringer to submit documents, materials or procedures that are the subject matter of the patent (Section 140cm Germany Patent Act) for examination. However, to do this, the suspected infringement must be deemed to be sufficiently plausible. Firstly, you can send a request for consent or a warning to the suspected infringer. In some cases, this brings any potentially infringing actions to an end. Secondly, you can start infringement proceedings at a German regional court with a patent division.
Belgium is an example of a country where there is the possibility of a 'distraint description'. This is a descriptive attachment in which a neutral expert can examine a production facility belonging to a suspected infringer.
In principle, the content of an application is fixed at the moment it is filed, and it is not possible to add anything to the content of the application. The purpose of this is to protect third parties against the existence of rights “with retroactive effect” that were not foreseen at the time of filing. However, it is possible to amend patent claims after filing, provided that this change is based on the content of the application as it was filed.
It is possible to file a continuation application up to one year after a patent application has been filed. This may include new information (subject matter). You can then rely on the filing date of the priority application (the priority date) for everything that was described in the original application (priority application), while the actual date on which the continuation application is filed will count as the assessment date for patenting purposes of the new information.
Therefore, this continuation application is a separate application. In practice, priority and a continuation applications are combined to increase the likelihood of a patent being granted. You can file the priority application and have it examined by the patent-granting authority to get an idea of any possible objections to granting the patent. You can take this into account when you draw up the (final) continuation application, for instance, by adding examples or changing the text. When you do this, it important to pay as much attention as possible to what has been published since the priority application was filed.
In order to meet the requirements for patenting, an invention needs to be new and inventive compared to everything that is publicly known. In other words, if an inventor gives a presentation about the invention without a nondisclosure agreement in place, in principle, the inventor is making the invention public, which may hamper patenting.
A nondisclosure agreement can sometimes be implicit, for instance when giving an internal presentation in a company.
Furthermore, certain countries, such as the US, make a limited exception to disclosures by the inventor that are prejudicial to novelty. In those countries, an inventor who has published his work can still file an application for a patent during a limited period (usually up to six months or one year) after making it public. This is also known as the grace period. With regard to European applications, there are two exceptional situations in which a grace period applies: (i) if a disclosure is the result of clearly taking advantage of the applicant and (ii) a disclosure at an exhibition recognized for this purpose.
The exact meaning of a public presentation and the situations under which an implicit nondisclosure agreement or the grace period may be relied upon depend on the jurisdiction where the application for a patent has been filed.
No, that is not possible. However, you can obtain patent protection in almost all countries around the world. In the vast majority of these countries, it is possible to initially file an international application (PCT application). This can then be used to start a national/regional patent-granting procedure after a maximum of 30 months in order to obtain protection in individual countries or regions (e.g. Europe). It is important to determine in advance the precise countries where you would like a patent. Some countries (such as Argentina, Bolivia, Suriname, Congo and Ethiopia) cannot be accessed via PCT. In other countries (e.g. Belgium and the Netherlands), it is only possible to obtain protection based on the international application via the centralized European route.
However, it is uncommon for someone to apply for a patent in all countries. Obtaining and maintaining a patent is a costly process, and you will need to be able to recoup these costs. If you have protection in the most important territories where your invention (or a product derived from your invention) is used, then this is often sufficient.
A patent is an exclusive right. This means that a patent allows you to prevent others from using your invention, but a patent does not automatically give you the right to use that patented invention. For instance, the patented product may infringe the patents of third parties, and in this case it will not be possible to freely commercialize the product. It is advisable to examine third-party rights, or have these examined, in order to determine whether your product infringes other people’s rights.
In Germany, companies are required to monitor the market, which also means that these companies have to identify and analyze third-party IP rights that may be relevant for their own products and procedures.
A patent application needs to meet a number of requirements, including novelty, inventiveness and applicability or industrial applicability. Being able to show that the invention works plays a role in a number of requirements for patenting, in particular replicability and inventiveness. Replicability means that the invention must be described in the application so that a skilled person is able to reproduce it. This may involve using drawings and examples, among other things. If the inventiveness is based on a particular effect, then it may also be necessary to demonstrate that this effect can indeed be achieved with the invention. Examples may also be useful here. These examples are often included in patent applications in the fields of chemistry and life sciences.