More on Patents

General information of Patents under the OAPI

Under the OAPI, a patent is a monopoly right to the exclusive use of an invention and can last for a maximum of 20 years. A patent is a property, which like any other business commodity, may be bought, sold, hired or licensed.

Generally the purpose of a patent is to provide a form of protection for technological advances. The idea is to provide a reward not only for the creation of an invention but also for the development of an invention to the point at which it is technologically feasible and marketable. The protection and reward are also aimed at promoting additional creativity and encourage companies to invest and develop new technologies to the point at which the inventions are marketable. Such inventions are usually useful to the public and desirable for the public good.

To obtain patent protection the applicant must also show proof of the following:
That the invention is new or novel. The invention should be capable of being considered a new solution to a technological problem. However, there is no requirement for the invention to be represented in a physical embodiment.
That it is non – obvious, that is to say, it must involve an inventive step. The invention must be enough of an advancement to be considered non – obvious by a person having ordinary skills in the art over the state of technology before the invention.
That it is useful, that the invention should be capable of industrial application. The invention must be able to be used on a certain scale in practice i.e. exploitable in industry.
Not all inventions are patentable, to be able to obtain a patent, the applicant must prove that the invention concerns the composition, construction or manufacture of a substance, article or apparatus, or with an industrial type of process, as distinct from artistic creations.
Some categories of inventions are specifically excluded from patentability. These include the following:
Things that exist in nature, which are discovered and not invented, Machines that defy the laws of nature Scientific theory,
Mathematical methods,
Schemes, rules or methods, such as those for doing business, performing purely mental acts or playing games,
Methods for medical treatment for humans or animals or diagnostics methods, however, products used in making diagnostics are patentable.
The advantages of taking out a patent are the rights granted to the patent owner by law to exclude all others in the territory covered by the patent from making, using, selling or importing the invention. This, however, does not give the inventor or the owner of the patent the right to use the invention if its use is illegal. The inventor or the owner of a patent can prevent others from marketing and profiting from the invention for a period of 20 years from the date on which the application is filed. What this right, granted by the law to the owner of the patent does is give the developer of the technology the right to have it to himself for 20 years in exchange for full disclosure to the public of how to use it. When the patent expires, the technology becomes public property, and the public is free to use it.
Patent protection can be obtained and enforceable only on a country-by-country basis with the exception of some regional arrangements that permit regional protection such as the European Patent Organisation.
There is also an International Agreement administered by the World Intellectual Property Organisation (WIPO), called the Patent Cooperation Treaty (PCT) for the filing, searching, publication and examination of international applications. However, the Patent Cooperation Treaty only makes it easier to obtain patents in the Contracting States by providing for the filing of one international application, which may be subsequently prosecuted in the different designated National or Regional Offices of the States party to the Patent Cooperation Treaty. The granting of patent protection in the respective countries designated in the international application is left to the respective designated Offices. They would require the applicant of the international application to enter a national / regional phase in the designated Offices concerned and to pay the relevant filing and maintenance fees, with the only exceptions being that the date when the international application was made would be considered as the official filing date and the application will not be re-examined for novelty, inventive step and industrial applicability. The designated Offices will take the filing, search, examination and publication of the international application into consideration.
There is unfortunately no single world patent. Filing, examination, granting of protection, maintenance and the payment of the relevant fees, and enforcement of infringement have to be done on a country-by-country basis. This is generally not only very expensive but is also a very difficult thing to do. Mere failure to pay a yearly maintenance fee in one country will cause the patent to lapse in that country, meaning anyone in that country is free to use it as he or she pleases. With the advent of the Internet, patent disclosure could now be done on the Internet; this would mean a global disclosure of the invention, with all its direct and indirect consequences. Therefore a person who is resident in any country in the world in which the owner of the invention has not been able to seek and obtain the protection of the invention can easily have access to a full disclosure through the Internet and proceed to exploit the invention without the consent of the owner of the invention. Worst still he or she may wish to use the knowledge acquired from the disclosure to obtain patent protection in his or her country of residence without the consent or even the knowledge of the rightful owner of the invention. This poses major problems both for intellectual property in general and patent protection in particular.