How Patents Work - Requirements, Registration And Examples

2023 Author : Hannah Pearcy | [email protected] . Last modified: 2023-06-01 01:49

The use of patents is controversial these days. On the one hand, patents are viewed as “guardians” of innovation and progress , because they give companies security first - for intellectual property and for future investments

Critical voices refer to patents as statutory monopolies on certain areas of knowledge . It is not an easy task for companies to find their way in this jungle of perspectives. But one thing is clear: you can no longer imagine patents without the global markets these days. The sooner companies deal with this topic, the faster you can prevent you from missing opportunities. But where should you start?

How do patents work?

Patents are industrial property rights. They protect the intellectual property of their “creators” and allow them to benefit from their “creation”. Patents can be used to protect technical inventions (e.g. devices and methods) that are new, have an inventive step and are commercially applicable [DPMA17]. The maximum term of a patent is 20 years. Many groundbreaking inventions are patented. Around 70% of all technical knowledge is recorded in the patent literature.

The following, systematically building up steps should be followed within the scope of a patent application:

• 1. Describe the invention, report if necessary and keep it secret
• 2. Evaluation of the invention with regard to patentability and economic prospects of success
• 3. Development of a suitable patenting and implementation strategy
• 4. Implementation of the patent application and economic implementation
• 5. Management, monitoring and, if necessary, enforcement of property rights

Seminar tip

The seminar on patent law for engineers and designers focuses on how engineers and designers correctly apply and interpret patents. It also deals with the possibilities of having innovations protected, the process from the idea to the patent, strategic decisions on costs and benefits, and the violation of proprietary and third-party property rights when launching new products.

1. The invention

In a first step, the invention should be described in as much detail as possible. To do this, you should at least explain the technical features, functions and advantages in text. Additional sketches can contribute enormously to understanding. If the inventor is in an employment relationship, the employee inventor law must always be observed and, if necessary, an invention report submitted. The invention must not be published before a patent application is filed.

2. Patentability - is a patent worth it?

In a second step, the invention is evaluated and a decision is made as to whether a patent application should be made or not. For the company, the question must be answered whether a patent application is really worthwhile. An essential part of this assessment is a search (e.g. in the databases of the patent offices). It is used to identify the technical features that could be protected and the state of the art that appears to conflict with these features.

Another essential part of the evaluation is the analysis of the economic prospects of success of the invention and the determination of the prospects for exploitation. To this end, the following aspects are examined at the commercial level: implementation, costs / benefits, potential, hurdles, barriers, time to market and return on investment.

3. The patenting strategy

Patenting should support economic implementation - not the other way around. Form follows function. In a third step, the patenting strategy will therefore be adapted to the planned economic implementation.

4. The patent application

In order to register a patent, a fourth step must be to file an application with the patent office. This should be drawn up by a relevant qualified specialist (e.g. patent attorney). Coordination of the content of the application with the inventor / owner is mandatory. The technical content and scope of protection will be checked by the patent office after submission - an additional request for examination must be submitted.

In the course of the examination procedure, it becomes clear what scope of protection can actually be realized. A successful examination procedure ends with the grant of the patent. The economic implementation of the invention can and should begin before it is granted.

5. Patent management

The fifth step includes patent management, monitoring the environment and, if necessary, enforcing property rights against infringers. Patent management ensures that patenting is implemented in line with strategy. This includes, among other things, the initiation of any subsequent registrations abroad, which should be sensibly selected, especially taking into account the costs. As part of the monitoring of the environment, it can be determined who else is in the technical field of the invention and whether someone else is infringing on their own patent. In the event of a clear violation, the patent can flex its muscles.

Seminar tip

The seminar on patent law for engineers and designers focuses on how engineers and designers correctly apply and interpret patents. It also deals with the possibilities of having innovations protected, the process from the idea to the patent, strategic decisions on costs and benefits, and the violation of proprietary and third-party property rights when launching new products.

Patenting procedures are complex

It all sounds fine, but when it comes to the practical implementation, you already meet the first challenges. Due to the complexity of the patenting process, these often become apparent very early on, especially for newcomers or occasional offenders: From the outset, the question arises of how patents should and should be dealt with. Should patent applications be made or not? If so, in which countries? Which costs arise? How can patent protection be achieved and enforced as effectively and efficiently as possible?

In patenting, the clocks tick slowly

The time from patent application to patent grant cannot be calculated exactly in advance - but it can be several years. The German Patent and Trademark Office has responded to this relatively long period of time and recently announced that a total of 250 new positions (including 170 for patent examination) are planned for the 2018 and 2019 financial years in order to shorten the processing time for patent applications [DPMA19].

The amount of work or time required for a patenting process should not be underestimated. Just studying extensive documents and coordinating the next steps in the registration and examination process can take many hours or even several days per year for each property right. There are a large number of deadlines in patent law that must be monitored and taken into account. Missing important deadlines can even lead to the expiration of a patent application or a granted patent.

International patent applications

Competition for patent applications in the international markets is intensifying, the World Intellectual Property Organization (WIPO) states that 3.1 million new patents were registered worldwide in 2016 - an increase of 8.3% compared to 2015 [WIPO18]. According to WIPO, patent applications from 2016 are divided among the respective national / regional patent offices as follows:

• 42.8 percent: China
• 19.4 percent: USA
• 10.2 percent: Japan
• 6.7 percent: South Korea
• 5.1 percent: Europe

The German Patent and Trademark Office reports about 67,000 patent applications in 2017 in Germany [DPMA18].

China in particular is registering more and more patents and is developing into a knowledge society. However, due to the language barrier, detailed research in the scriptures is difficult for “non-Chinese” and their content or state of the art can hardly be determined. Fortunately, there is often a short English-language summary that at least provides guidance.

Other countries other manners

To make matters worse, the patenting procedures abroad vary from country to country. Fortunately, there has been a long-standing agreement for international patent applications, such as in Europe and under the PCT Treaty, that at least make internationalization a little easier. The new European unitary patent is not yet usable and it is difficult to estimate when it will be.

How much does a patent cost?

The patenting costs can only be calculated in advance. However, the following orders of magnitude can be assumed on the basis of experience: In the case of a national registration, several thousand euros can be expected, and for subsequent registrations abroad, many tens of thousands of euros.

The actual costs only arise in the course of the procedure and depend very much on the effort involved, the scope of the documents and the number of national / international patent procedures. It should therefore be critically examined right from the start which investments in patents actually make sense. However, this exam is a difficult task because it contains a look into the future. And who can look exactly into the future?

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What are the benefits of patents?

Many companies wonder why they should take all the long way to register a patent and what benefit they will get from it. Patents are one of the drivers of innovation and creativity [EuroND]. Patents can make it possible to protect unique technical selling points or unique selling points (USP) from the competition. Without the possibility of having a new technology alone and being able to use it exclusively, many innovations would not be available. For example, what would a new technical product do for a company if it could essentially be copied or even completely copied by the competition? Would the company still invest in innovations?

Even if it has been decided that no own patents should be registered, it is advisable to determine existing property rights (in particular patents, utility models, designs and brands) of others and to check whether these may conflict with one's own development. For example, detailed research and freedom-to-operate analyzes can be used.

Patents for SMEs and start-ups

Large companies and corporations usually have their own departments that look after patents and property rights. Such departments are rather rare in the SME sector. In small companies, patent management is often one of the secondary tasks of managers. The main potential for SMEs is to strengthen their own innovative strength and competitiveness through the more effective and efficient use of patents.

For start-ups, patents in particular are important assets that play a central role in obtaining venture capital. In addition to the founders' heads, property rights are often the only assets that a startup has. In 2017, 232 of 1,776 start-ups at universities were based on property rights [EFI19]. The investors want to ensure that the companies - in which they invest - actually have the rights to their inventions. The founders should also agree on a clear regulation of the rights so as not to experience any unpleasant surprises later. What would z. For example, what happens if a member of a founding team leaves the company and gains rights as a co-owner or sole owner? If the company is then without rights to an essential patent orProduct or process?

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No patenting process without expertise

In the area of patent law, it is advisable to involve qualified experts (e.g. patent attorneys, lawyers and specialized service providers), especially if you have little knowledge and capacity. Due to their relevant training, specialization and experience, they can handle many tasks much better and more efficiently than you do yourself. Experienced experts are usually up to date and approach the tasks objectively. In particular, the formulation of an application letter and the reply to notices that are created by the Patent Office in the course of the examination procedure should be left to specialists - especially patent attorneys.

If an invention has been carefully examined and a suitable patenting strategy has been worked out, you are basically on the right track. If the rights to the invention are then properly regulated and the patenting is implemented according to the agreed strategy, this is the “jackpot”.

Keep an eye on the term of the patent and further development

The term of a patent is limited to 20 years. After the expiry of a patent, the content is freely available to everyone. It is therefore very important to initiate new developments early in the innovation process, to plan new patenting processes in good time and, if necessary, to initiate them promptly. What would a company do if e.g. B. would your core product suddenly be without patent protection?

Reduce costs with funding programs

In order to reduce your own patenting costs, you should also check whether funding programs can be used. For example, the WIPANO funding program (knowledge and technology transfer through patents and standards) offers grants that can also be used by companies under certain conditions. The maximum grant amounts to around € 16,500 and also includes special consulting services by qualified external service providers.

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Patents - curse or blessing?

Patents offer a lot of potential and have different positive effects. They drive our social progress and also ensure that one innovation leads to the next. At the same time, the challenges that patents bring with them are undeniable and are growing year by year.

Therefore, every company should take a closer and more intensive look at the possibilities and limits of patenting. After all, patents and contracts regulate very precisely who is allowed to do what and who is not. And that is crucial in the competition. Non-patenting important inventions, overly extensive patent proceedings and patent infringements can have serious consequences for companies.

If properly applied, patents can serve as a catalyst for business success. However, patents are not a “general purpose weapon”. Commercial skills, clever strategies and suitable implementation measures are still indispensable.

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[DPMA17] German Patent and Trademark Office: Patents - An information brochure on patent protection. Munich, 2017.

[DPMA18] German Patent and Trademark Office: Annual Report 2017. Munich, 2018.

[DPMA19] German Patent and Trademark Office: DPMA is confident about the new year. Press release, Munich, January 16, 2019.

[EFI19] EFI - Expert Commission for Research and Innovation: Expertise on research, innovation and technological performance in Germany. Berlin, 2019.

[EuroND] European Commission: THE PROTECTION OF INELLECTUAL PROPERTY. Factsheet.

[WIPO18] World Intellectual Property Organization: WIPO IP Facts and Figures 2017. WIPO Publication No. 943E / 17, ISBN 978-92-805-2914-2, Geneva, 2018.

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* Dr.-Ing. Hanns Kache, patent engineer, partner and authorized representative

* EZN Inventor Center North Germany GmbH