Every inventor often wonders whether and how his invention can be protected. One thinks immediately about patenting, but this is not necessarily the most appropriate way to protect an invention. Here are some useful questions to ask yourself before definitively opting for a patent.
Prior to filing a patent application
Keep it secret!
It is crucial not to publicly disclose an invention until the patent application has been filed. An invention must meet the condition of novelty in order to be protected by a patent. An inventor who makes his invention public too early could lose the possibility of obtaining a patent on it. This is why it is important to have potential scientific or commercial partners sign confidentiality clauses, and to develop within your company or research laboratory an internal policy for controlling access to the company's site and codes of conduct for workers.
For more information, see Business Secrets: protection by the secrecy of inventions, know-how or information.
During the period you wish to keep your invention secret, it is possible to register the invention by means of the i-DEPOT envelope to avoid future disputes regarding the existence of the invention or its date.
Does my invention meet the conditions for patentability?
Of course, you first need to check whether your invention meets the legal requirements for patentability: it must be
- susceptible of industrial application and
You definitely need to check whether your invention is new, i.e. whether no one before you has developed the same invention and made it public, in particular by filing a patent on the invention in question. This check of patents already granted or applied for inventions in your scientific or technological field can be carried out via specialised databases. You can carry out this search yourself, even though it is advisable to have an expert carry out the search.
File a patent or not?
The next step is to determine whether filing a patent is the best option in your situation.
The advantages of a patent:
- a patent gives the holder an exclusive right of restriction on an invention. This implies that the owner has the right to restrict third parties from using the invention without prior authorisation. If the patent holder does not wish to exploit his/her invention him or herself, his/her rights may be licensed;
- owning a patent is likely to strengthen the negotiating position of the holder when collaboration with other companies is being considered. For example, patenting an improvement of an existing invention increases the chances of obtaining a license on this earlier invention. Often, the patent holder on the earlier invention and the patent holder on the improved invention will authorise each other to exploit their inventions, which is called a cross-license;
- when you wish to be active in a particular field, the possession of patents by third parties may be an obstacle, as their authorisation will be required to use their invention. By filing a patent application beforehand, you make sure that no one else can prohibit you, on the basis of your patent, from applying this specific invention. Patenting your invention therefore guarantees you a certain "freedom of operation". See Secrecy;
- finally, a patent is very good advertising. Third parties know that you are active in a specific field and that you have a strong technological position in this sector.
The disadvantages of a patent:
- patenting your invention is rather expensive and the commercial success of an invention is not guaranteed;
- when filing a patent application, you need to describe the invention clearly and in full. This description can be consulted by third parties. This disclosure of the invention may provide third parties with strategic information about your company or allow them to try to improve on the technologies you have invented. Patenting your invention therefore prevents you from keeping it secret;
- a patent has a limited duration, which is not the case for secrecy. In some cases, secrecy can give you a competitive advantage for a longer period of time than the patent;
- to guarantee you a certain freedom of operation, you can also make your invention public. That way, no other person will be able to file a patent on this invention because the condition of novelty will no longer be met.
A thorough examination of the advantages and disadvantages for each particular situation is, therefore, necessary.
As soon as you have decided to file a patent, it is important to act quickly. It is the date of the patent application that will determine whether you are the first party to have applied for a patent on the invention in question. It is also by reference to the filing date of the patent application that the novelty of your invention will be assessed.
Which procedure to choose? A Belgian or European patent? Or an international patent application?
If you finally decide to definitively opt for a patent, you must then decide by which procedure you wish to obtain the patent.
- If only exploitation in Belgium is planned, applying for a Belgian patent at the Intellectual Property Office Belgium (IPObel) is sufficient. This is a fairly simple procedure that does not involve an examination of the conditions for the validity of the patent, but only a verification of the formal requirements. A search on the novelty of the patent is carried out by the European Patent Office. However, the results of this search are only informative for the applicant and do not condition the grant of the Belgian patent.
- If, on the other hand, you wish to obtain protection in several European countries, it may be more advantageous to apply for a European patent. The procedure for obtaining this is more complex and time-consuming, due to the requirement to have the conditions of patentability examined, but this examination also makes the patent stronger.
- If you also wish to protect your invention outside Europe, this can be done by filing an international patent application in order to obtain patents in different countries.
It is also possible to obtain patents in different countries by filing a separate application in each of these countries. This will often prove less effective, both practically and financially, especially if you are seeking protection in multiple countries.