Protect your invention

A patent is a property right that you get as the inventor of a new and inventive technical product, process or application. This property right allows you to protect your technical invention, by for example prohibiting someone else from using your invention without your permission. You will be able to prohibit all commercial activities such as copying, selling, importing and storing the invention in every country where your patent is valid.

Your invention should meet three requirements:

• Novelty: Your invention must be new. This means it must not be made publicly known anywhere in the world before the patent application is filed, not even by yourself.
• Inventive step: Your invention must not be obvious to a skilled person in the same field.
• Industrial applicability: Your invention must consist of a technically feasible product or process.

In some countries you cannot obtain a patent unless all three requirements are met. In other countries such as Belgium and the Netherlands, the granting of a patent is a purely administrative procedure. This means that in these two countries you can get a patent granted even for inventions that are not new or inventive.

If you want to apply for a patent, it is necessary to do a patent search first. You could this yourself but it is advisable to seek professional assistance from your national patent office or a patent attorney. There are two different reasons to do this patent search.

The first reason is to find out whether your invention is new and inventive. Because all disclosures, publications and prior use can destroy the novelty and/or inventive step of your invention it’s important to search literature and (free) patent databases, like Espacenet. This search of already existing technical solutions is called a ‘prior art search’. It gives you insights on what is still patentable and also avoids that you apply for a patent that can easily be invalidated.

Secondly patent research is important because it allows you to check if you have ‘Freedom to Operate’. This means that you can make or sell your products without infringing the rights of others. (Potential) investors will be interested in this information as well.

Since writing a strong patent is quite complex, it is recommended to seek assistance from a patent attorney, who has the necessary technical background and specialist patent training.

But before you contact a patent attorney, you can already start to do your own research into existing patents in (free) patent databases (or with the help of your national patent office). Doing your own research before hiring professionals is a smart thing to do.

Sharing the idea for your invention too soon with others can result in your invention not being new or not having an inventive step anymore and thus not being patentable. Therefore, if you want to share the idea for your invention with others you should only do this if you have taken appropriate measures to ensure that your invention does not become public (e.g. by disclosing it under a non-disclosure agreement). Or you can also decide to disclose it only after your patent application has been filed.

Once you filed your patent application the patent office will make it public (official publication) after 18 months with the purpose of sharing state-of-the-art technology. Between filing your application and the official publication, you can already share your invention yourself if you do not want to keep it confidential anymore and do not mind making it public. During this period, you can state that you have a patent pending, which might be a good marketing strategy. In general, patents are granted after 18 months (around the time of the official publication). Protection runs from the moment that your patent application is filed. Once your patent is officially granted, you will be able to take action against counterfeiters.

Your invention will be protected in every country in which your patent is granted. So first you have to determine in which countries you want protection:

If you want protection in one or more individual countries, you can file a national patent application in each of those countries.

By filling a European patent you can apply for patent protection in one or more of the 38 countries that are members of the European patent organisation. (These 38 countries concern all the member states of the European Union together with Albania, the former Yugoslav Republic of Macedonia, Iceland, Liechtenstein, Monaco, Norway, San Marino, Serbia, Switzerland, Turkey and the UK.)

Do you have a European patent application? Starting June 1, 2023, you will have an additional option, namely the unitary patent in 17 countries of the European Union: Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, and Sweden.

Next to the choice for selecting the Unitary Patent, a new Unified Patent Court will treat the patent disputes for these participating countries as well.

The international procedure offers the possibility to apply for a patent in more than 150 countries with one single filing.

Once granted your patent provides protection for your invention for a maximum of 20 years. Protection only lasts for as long as you pay the yearly maintenance fees. After your patent has expired, the technology becomes available for everyone to use.

The cost of a patent depends on your patent attorney, the complexity of your invention and other factors, like the procedure you follow and the number of countries where you want to protect your invention.

There are several patent procedures and they all have different costs (such as expert fees, filing fees, translation costs, etc.). The most common procedures are:

- National - Patents are filed with the national patent office – ca. EUR 6,000;

- European - For protection in European countries you can file a patent with the European Patent Office (EPO) – ca. EUR 10,000 – EUR 15,000;

- Worldwide (international) - If you want your invention protected all over the world you can follow the procedure of the Patent Cooperation Treaty (PCT) – ca. EUR 10,000.

After the filing of your European or PCT application, you will have to designate the countries in which you want patent protection for your invention. For each of these countries you will then have to pay yearly fees to maintain your patent for that country. Patent costs (and consequently maintenance costs) can therefore increase considerably, depending on your choice of countries (click here for more information on the European and PCT fees).

Broadly speaking, there are three ways to benefit from your patent.

First of all, a patent grants you exclusivity or a monopoly in a certain country and for a certain time. This allows you to fight competition and demand a higher price for your product. For many small companies a patent is often desirable because investors value it.

Secondly, a patent can also help convince investors or partners to cooperate with you. This is especially the case for small companies and start-ups. Holding a patent portfolio can also be an important asset if someone wants to take over your company as it increases your company value.

Thirdly you can allow others to use your invention. This can be done by selling your patent and/or by granting user rights or licences.

There is no obligation to apply for patent protection. You can use different strategies to protect your invention:

• keep your invention secret and protect it as a trade secret. As long as you keep your invention secret and you do not make it public, it can still be considered new in terms of public state of the art (see step 2 for more information about novelty). This option is fine as long as nobody else has the same innovative idea. However, there is always a risk that someone else comes up with the same invention and will apply for a patent for the idea that you came up with first. If you want to know more about trade secrets, consult our Trade Secret Smart Guide;

make your invention public. By making your invention public without a patent, your invention becomes part of the public state of the art. So anyone can use your technology, but no one (not your competitor, not even yourself) can file a patent on this published invention and can prohibit others to make use of this invention. If you want to use this strategy to hinder your competitors, it is important that there is a clear publication date and a proper technical description of your invention

Patents are territorial and are filed in each country where protection is sought. This means you can only act against infringement in the countries your patent is granted. If you discover that someone infringes your patent, you’ll have to take action to stop it. You can start by contacting the other party to inform them of your patent right and their infringement and ask them to stop the infringement immediately. If an amicable solution is not possible you will have to take legal action to enforce your rights.

As patent litigation is a complex matter, you should seek assistance from a specialized legal patent professional to help you when you are dealing with infringement.

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