In the beginning we will consider how the invention differs from the discovery, and then we will proceed to the consideration of issues that are directly related to the patenting of the invention.
Invention is the creation of something that did not exist before; and the discovery is something that existed before, but was not known. As an example, the law of Newton is the law of the world. If hypothetically assume that the discovery of Newton (the law of the world), could be patented, then an absurd situation would arise. Since before the discovery of Newton, mankind was able to use the power of world wide power. And for Newton, the patenting of discovery (obtaining a patent) would give him an unreasonable (illegal) monopoly.
A slightly different picture for inventions. An invention is the creation and manufacture of an object of intellectual property that did not exist in the past (for example, a bicycle). In this example, the patenting of an invention, a bicycle, is legitimate and reasonable, since humanity acquires a bicycle, which it did not have before. In order to interest inventors to patent their inventions, at the state level, after going through the procedure of «patenting the invention» and obtaining a patent, monopoly rights are granted, as a rule, for a period of 20 years.
The word “invention” comes from the French “invenire”, which means to find (create).
In Ukraine, at the national level, patenting of an invention is regulated by: The Law of Ukraine «On the Protection of Rights to Inventions and Utility Models» of December 15, 1993, No. 3668-XII. Patenting of inventions is carried out by the Patent Office of Ukraine, whose location is in Kiev.
In order to be able to patent an invention in Ukraine, it must be patentable, i.e. new, to have an inventive step, as well as industrial applicability. Similar requirements are put forward both in Ukraine and in other countries.
For patenting an invention, it is necessary and sufficient when:
- Invention is recognized as a new. It is recognized as new only when it is not part of the current level of technology.
- The invention is industrially applicable. It is considered industrial applicable only when it can be reproduced industrially.
- The invention involves an inventive step. It has an inventive step only when it meets the criterion of “non-obviousness”. The non-obviousness of the invention means that, for a specialist in a particular industry, this invention does not come from the current level of technology.
It should be noted that for those who wish to undergo the procedure «patenting of an invention” at the international level (abroad), it is possible only after the start of the procedure of «patenting of an invention» at the national level (in particular, in Ukraine (in Kiev)).
It is possible to obtain a patent for an invention that meets all the listed criteria and has passed the official patent procedure of the invention in the Patent Office (we draw attention to the fact that the patent is obtained exclusively in Kiev – since the location of the Patent Office of Ukraine is one and it is located in Kiev).
A patent is a protection document for an invention that certifies the received priority, the authorship of the author, as well as the property rights of the owner of this patent. In this case, the author may or may not be the owner of the patent.
The patent is used in a period stipulated by law equal to 20 years. After the expiration of the patent, it becomes publicly available. In other words, each user can use the invention at its discretion.
But for the owner, during his ownership of the patent, only he and no one else has the right to use the invention at its discretion.
On the basis of a patent, the owner is granted a number of exclusive property rights:
- the exclusive right to prohibit* unauthorized use by third parties of his invention;
- the exclusive right to allow* third parties to use his invention (for example, on the basis of a licensing agreement).
*if patenting was in Ukraine, then this action can be carried out only in Ukraine.
In Ukraine, patenting an invention and obtaining a patent is carried out according to the applicant system.
In many countries at the legislative level “indirect protection (defense)” is provided for a valid patent. The essence of this protection (protection) is that without the permission of the owner of the patented invention it is not allowed to import into the country products manufactured according to the method specified in the patent formula.
Not to be confused, which is issued in accordance with the Law of Ukraine “On the Protection of Rights to Inventions and Utility Models” and certifies the ownership of this invention or utility model, from a patent (more correct name trade patent), which is issued according to the Law of Ukraine «On patenting certain types business activity» and certifies permission to engage in certain types of business activities (in particular, retail or wholesale trade). In other words, a trade patent (issued in Ukraine (in Kiev) does not certify the ownership of a physical or legal person by a specific intellectual property item.
Before proceeding to the patenting procedure in Ukraine, an inventor must weigh: patent his invention or not patent. The invention is patented in the event that the benefits from the obtained legal protection (protection) exceed the costs incurred.
There are times when patenting an invention is not advisable. For example, Coca-cola has been holding a monopoly in the markets for the production of its drink for more than 100 years, and this is achieved by keeping its manufacturing (know-how) secret. Even entering into licensing agreements with third parties, she does not indicate its composition. But only the proportions of concentration, to which it is necessary to dissolve the powder supplied according to the license agreement. In such a way, Coca-cola protects its know-how and today holds monopoly rights in the market not only in Ukraine, but throughout the world.
At the same time, another opposite example can be given when it is advisable to patent an invention. At one time, the company “Microsoft” was accused of violating the rights of another company “Digital Equipment Corporation”. In turn, the company “Digital Equipment Corporation”. filed a lawsuit in court for the protection of her patent rights infringed. In order to close the trial, the company “Microsoft” was paid a fine on a large scale. After a similar case, Bill Gates developed a strategy to patent all that is possible. Thanks to the innovative strategy of the company, today Microsoft is one of the leading companies in the world.