Patent law can be a complex topic that leaves entrepreneurs perplexed and out of pocket. It can be a costly exercise, but is absolutely necessary in protecting your invention or medical device for successful commercialisation. Here are some basic principals in patent law.
What is a patent?
It is a property right granted by a government that permits the patent holder to exclude others from making, using, offering for sale, selling or importing the invention for a limited time in exchange for public disclosure of the invention. In other words it commercially excludes others from ‘copying’ or replicating your invention for a specified period of time. In Australia, this period of exclusivity may last up to 20 years from the filing date.
But remember, just because you have a patent, does not mean you have the right to use them. This is dependent on the claims and there may be dominant patents owned by others.
What is patentable?
Patentable subject matter includes:
- Process – eg. Method of making a drug, software that can be industrially applied, etc.
- Machine – eg. Medical imaging machinery
- Composition of matter – eg. New drug
- Article of manufacture – eg. New medical device, New diagnostic kit, New drug formulation, New computer hardware, etc.
What is not patentable?
- Laws of nature
- Physical phenomena – eg. biological mechanisms, biological pathways, chemical reactions, etc.
- Compound in state of nature (Refer to blog Challenges to Patentability in Biotechnology)
Requirements for patentability
Just because you have an idea, doesn’t mean it is instantaneously patentable. There are specific requirements that an inventor must be aware of. The invention must:
- Be novel
- Be useful
- Involve an inventive step (Anticipated by prior art, not obvious)
- Have sources of known prior art
- Be written description in “best mode”
The “best mode” requirement is a safeguard against an individual’s desire to withhold information and to obtain patent protection without making a full disclosure.
Inner Maven has extensive experience working with inventors and patents, and can make introductions to patent attorneys who can also guide inventors through this process.