Introduction
 
If you've created a new invention, it could be commercially advantageous to apply for a patent which may allow you to control how the invention is exploited.

Taking out a patent gives you the right to stop people from making, using, importing or selling your invention without your permission. A granted patent can remain in force for up to 20 years.

A patent also allows you to license others to use your inventions - providing royalties, an important source of revenue for your business.

There are strict rules that determine what can and can't be patented, and a patent may not always be the best way for you to protect your invention.

This guide will help you understand what a patent is and what it does, consider whether a patent is right for you and find out how to apply for a patent.

It also sets out how you can avoid infringing other people's patents.

What is a patent?

You may consider applying for a patent if you invent:

• a new component or innovative product - eg a new type of lid for a drinks carton which keeps the contents fresher for longer
• an industrial process or way of making or manufacturing something - eg a new plastic-moulding technique
• new apparatus or equipment used in an industrial process

Where a patent may not be appropriate, cost effective or applicable, there are other options to protect your intellectual property.

Patents give the patent-holder the right to stop others making, selling, importing or using the patented invention without permission.

They're granted by a government  and are concerned with the functional or technical aspects of a new product or process.

A patent can be a valuable asset for a business. But it costs money, can take a long time to apply for, and protection isn't automatic.

If you take out a patent, it is up to you to defend it against any infringements - by going to court if necessary.

A patent:

• applies across a specific territory - so if you apply for a UK patent it only applies in the UK - see the page in this guide: where does my patent apply?
• is valid for a limited period, usually up to 20 years in the UK
• can be bought, sold and licensed - see the page in this guide on how to license your patent - like any other piece of property
  

Can I get a patent?

To get a patent your invention has to fulfil certain criteria. It must:

• Be capable of being made or used in some kind of industry - you can't get a patent for a theory or an idea, a discovery, an artistic work or a computer program, though there may be other ways to protect this intellectual property.
• Be new - your invention must not have been made public before you apply for a patent. This means it is essential that you keep your invention secret when you are developing your idea. You should make sure that everyone concerned - including partners, press, employees and suppliers - signs a non-disclosure or confidentiality agreement before you talk about or collaborate on your invention.
• Respect other people's patents and do not infringe them in any way. 
• Contain an inventive step - meaning the idea wouldn't be an obvious development to someone with a good knowledge of the field.

Remember, the fact that you can get a patent doesn't necessarily make it wothwhile. You should carefully weigh up the pros and cons before deciding whether you should apply for a patent.

You might also want to consider your invention's commercial viability - through market research - before going ahead and applying for a patent.

Another method of protecting intellectual property is via online registration of the documentation, accounts, or processes concerned with your idea. However this does not offer the same level of protection as applying for a patent.

Respect other people's patents

A patent holder has the right to take legal action against you if you make, use, import or sell a product employing their invention without permission.

Before manufacturing or importing a product, or implementing an industrial process, it's a good idea to carry out an infringement search to check you're not infringing someone else's patent or registered design.

You can write to the Patent Office for an impartial opinion on patent infringement. You have the right to ask about someone else’s patent without disclosing why you are interested. The cost of obtaining an opinion is £200 and takes around three months.

An infringement search checks patents or registered designs, which are in force in the country or countries concerned, in order to see whether you're infringing someone else's patent or design. The search can be carried out by the Patent Office - they'll be able to do it more thoroughly than you can.

If you find out that there is a relevant patent or registered design in force in the countries where you intend to operate, it is worth seeking legal advice on how best to deal with any potential infringement and/or licensing issues. It may be helpful to contact a patent agent to advise you. You can search the Register of Patent Agents at the Chartered Institute of Patent Agents website. Find out about EU patents at the European Patent Office website.

The Patent Office website

Penalties for infringement
Infringing someone's patent can be very expensive. If a successful claim is made against you, you can be forced to stop the infringement and have to pay considerable costs and damages.

Remember - ignorance of a patent is no defence against infringement.

Carrying out a patent search
You can search for patents by entering key words or the patent number on the database on the Patent Office website.

But this is only a starting point. For a comprehensive search you'll need to pay for expert help. This is particularly important if you're thinking of investing in a big research project or applying for your own patent.

For a fee, the Patent Office can carry out a patent search for you. Find out about the search and advisory service on the Patent Office website.

Alternatively, you can contact one of the PATLIB patent information centres in the UK, such as the British Library in London to conduct a search, or you can seek assistance from a qualified patent agent

Should I get a patent?

Deciding whether to apply for a patent involves weighing up a number of advantages and disadvantages.

Advantages

• You get protection for a pre-determined period, allowing you to keep competitors at bay.
• You can then exploit your invention yourself.
• Alternatively, you can license your patent for others to exploit it, or sell it, as with any asset. This can provide an important source of revenue for your business. Indeed, some businesses exist solely to collect the royalties from a patent they've licensed - perhaps in combination with a registered design and trade mark. 

Disadvantages

• Your patent application means making certain technical information about your invention publicly available. It might be that keeping the details of your invention secret will keep competitors at bay more effectively.
• You'll need to be prepared to defend your patent. Taking action against an infringer can be very expensive. On the other hand, a patent can act as a deterrent, making defence unnecessary.
  

Find out how to apply for a patent

Applying for a patent can be a lengthy process, and any mistakes in your application will slow things down further. They can also prove expensive and might mean you fail to get a patent or it fails to give you broad enough protection. You'd be well advised to seek professional advice from a patent agent.

You should never publicly disclose details of your invention before applying for a patent. If you must disclose your invention, you are strongly advised to consider entering into a non-disclosure agreement.

The application process
If you want to apply for a patent, first complete a patent specification. This includes a full description of your invention and any drawings to which the description refers.

See details of UK patent applications at the Patent Office website.

You usually then have 12 months to:

• file your claims - precise statements about the invention you want to protect
• submit an abstract
• pay a fee for a search to check whether any similar inventions have been published before
  During this time you must also decide if you wish to file for patents in other countries.

If all is in order, the Patent Office will publish your application. You must then pay a fee for a substantive examination by the Patent Office. If the application is successful, it will be published again in its granted form. This can be a lengthy process.

During the application process you may want to use the words "patent pending" on products utilising the patent you're applying for and in advertisements for such products. This can discourage potential competitors.

Where does my patent apply

Patents are territorial and can only be enforced in the areas for which they're granted. A successful application for a UK patent only gives you protection in the UK.

To stop the exploitation of your invention outside the UK you need to file for patents in the countries where you want protection.

Though in some cases you'll need to submit applications for each country concerned, there are international agreements that allow you to obtain protection in a number of countries through a single application.

A UK patent protects you if products making use of your invention are manufactured outside the UK and imported. You can then take action and defend your patent against the importer.

License your patent

If you have a patent you don't have to exploit it yourself.

You can also make money by licensing somebody else to exploit it. This gives them the legal right to manufacture, use, sell or import your patented invention.

Licensing a patent can be an important source of revenue for your business. Indeed, some businesses exist solely to collect the royalties from a patent they've licensed.

Some products can be protected and then licensed with a combination of a patent, a trade mark and a registered design.

Generally, a licence lasts for a set period and involves the payment of royalties to the patent-holder.

Licence agreements can be exclusive, giving the licence-holder the sole right to exploit the patent, or non-exclusive, where more than one licence-holder has the right to exploit the patent.

If you want to license a patent you should get legal advice from your solicitor, a patent agent or licensing practitioner about the nature of any licensing agreement.

Defend your patent

If you think someone is infringing your patent, you should seek legal advice on how to proceed. It's possible that a carefully worded letter to the potential offender could be enough to rectify the problem and may even lead to a mutually beneficial licensing arrangement.

If this doesn't work, you've got the right to take legal action to defend your patent. The courts can grant injunctions to stop infringement and award damages which can be substantial.

Action is through civil law and you're likely to need the services of a patent agent. Find a directory of patent agents on the Chartered Institute of Patent Agents website.

Patent actions are heard in the Patents County Court or the Patents Court, a division of the High Court. They can be very costly, so you should consider other options.

In certain circumstances you may be able to follow new streamlined court procedures that limit cases to a day of court time, making them considerably less expensive.

There are alternatives to full-blown legal proceedings. It may be possible to avoid a court hearing by entering negotiations with the infringer or using a method of alternative dispute resolution such as mediation.  It can be a good idea to get legal advice.

The mediation service launched in April 2006 by the UK Patent Office specifically mediates between companies and individuals involved in Intellectual Property disputes. Find out about the UK Patent Office mediation service on the UK Patent Office website.
You can also apply in writing to the Patent Office for an impartial opinion on issues concerning patent validity or infringement. An opinion will be issued around three months after the request has been made. It is also designed to be affordable at £200. Although the opinion is not binding, it can help to resolve issues without going to court.

Remember that your UK patent only gives you protection in the UK. You can only protect your invention in other countries if you have a patent in those countries. However, you can take action if products making use of your invention are manufactured overseas and then imported.