Patents are exclusive rights – a patent allows you to prevent others from using the invention (in a commercial capacity). However, a patent does not automatically give you the right to use that invention yourself. This right applies for a maximum of 20 years for the chosen countries specified by the patent holder. An alternative way to protect your invention against use by third parties includes keeping the invention secret. This is usually cheaper and there is no time limit, but the result is more uncertain. It does not offer protection against reverse engineering by competitors or against third parties who independently develop a similar invention. Furthermore, a former employee can take the confidential knowledge with them to a competitor. The legislation based on European directive 2016/943/EU offers some solace for the latter. If you would like to take action against stolen or retrieved trade secrets under this legislation, you will need a good system for recording those trade secrets.
Various countries, including Germany and China, recognize an alternative to a patent, in addition to nondisclosure, in the form of the so-called utility model. This is known as a “Gebrauchsmuster” in Germany. The utility model offers the same scope of protection as a patent, but it is not suitable for all inventions. In particular, it may be a suitable way to protect products, but not processes. The maximum duration of the right also tends to be shorter. In Germany, the maximum duration of protection is 10 years. However, in contrast to a patent, a substantive examination is not carried out in Germany for a utility model. That is why the costs associated with a utility model are considerably lower than those for a patent.
A patent provides a right to the patented invention that can be enforced against third parties. This protection is often most desirable in the countries where the applicant operates.
If the invention is a product, it is desirable that third parties are unable to sell this product in the applicant’s current or future market. These are also the countries in which a patent may be desirable. For instance, one should also think about countries with ports where many products are transshipped in which it is often possible to create extra protection in an entire hinterland.
Another frequently used strategy is to acquire patent protection in a country where a competitor has its production facility.
If the invention is a procedure then it is desirable to protect that procedure where it could be performed by a competitor. If the competitor manufactures in country X and the applicant manufactures in the Netherlands, Belgium, or Germany, then it is often desirable to obtain protection in both country X and in the Netherlands, Belgium, or Germany. Sometimes competitors are closely linked to a certain location, and in this case, protection at that location may be sufficient. However, if one's competitor can easily change location, then this applies to a lesser extent.
Therefore, there is no straightforward answer to this question. Where a patent is most useful will depend entirely on the situation. In general, one needs to find a balance between the costs and the places where protection would be most useful.
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.
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 good rule of thumb is that you should only patent something when you anticipate that you will be able to generate profit from the patent rights that at least cover the costs of the patent. It is also very important to assess the commercial value of the invention. If the value of the invention is high enough, patenting is self-evident.
Naturally, there may also be other considerations involved, such as a need for financing – patent rights often help attract investors and can serve as security when obtaining a bank loan.
Questions as to how long protection is required, and whether nondisclosure is possible over a longer period also play a role here. A patent right gives up to twenty years of protection, while in principle, nondisclosure can be maintained indefinitely. Furthermore, there is the question as to whether nondisclosure will also provide sufficient protection in practice and the risks inherent to nondisclosure if the invention is patented by a third party.
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.