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The Law & You: The Requirements For Patent-ability

The Requirements For Patent-ability

A patent is an invention granted by the government to the inventor, giving the inventor the right to stop others, for a limited period, from making, using or selling the invention without their permission.

When patent protection is granted the invention becomes the property of the inventor, which like any other form of property or business asset can be bought, sold, rented or hired. Patents are territorial rights; a properly operated patent system serves as a tool for ensuring justice to an inventor of a new and useful product to reward his intellectual effort. it gives the inventor a reasonable opportunity to enjoy the exploitation of the invention, free of the hindrance of copiers and imitators.

 All patents are made up of inventions, which may consist of products or processes. However, not all inventions can be the subject-matter of valid patents.

To be patent-able your invention must:

  • Be new, never been made public in any ways, anywhere in the world, before the date on which the application for a patent is filed.
  • Involve an inventive step – if when compared with what is already known, it would not be obvious to someone with good knowledge and experience of the subject.
  • Be capable of industrial application – an invention must be capable of being made or used in some kind of industry. This means that the invention must new material or an industrial process or method of operation.

Patents can validly be obtained in respect of improvements to existing inventions. The improvement must be a mere cosmetic adjustment or a minor alteration but must be such as to render the product or process better or more efficient than it was before.

An invention is not patent if it is:

A discovery

A scientific theory or mathematical method

An aesthetic creation, literary, dramatic or artistic work

A scheme or method for performing a mental act, playing a game or doing business

The presentation of information or a computer program

  In addition, it is not possible to get a patent for plant variety, a method of treatment of the human or animal body by surgery or therapy or a method of diagnosis.  Also, patents cannot be obtained for inventions which are contrary to public order or morality, Hence, where the publication of the product will offend the moral senses of reasonably decent members of society; or where the use to which it will applied is immoral, illicit or indecent and therefore contrary to public interest, the invention will be held to be non-patent-able.

In conclusion, one must proceed with caution: the one-year rule applies to everyone, including the original inventor. For example, if you publish your invention in a magazine or begin selling it, you must file a patent application within one year from the date it was published or first sold. Otherwise, no one (not even the inventor) will be able to obtain a patent for the invention. On the other hand, if you disclose the invention and someone else tries to patent it within one year of your disclosure, your disclosure will stop that applicant from receiving a patent, since your disclosure acts as prior art.

Featured image source: Above the Law

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Foluke Akinmoladun

Foluke Akinmoladun is the Managing Solicitor of Trizon Law Chambers. She has been a legal practitioner for 13 years and has experience in a wide range of commercial matters. She is a certified mediator, a member of the Chartered Institute of Arbitrators(UK), holds an Advanced Diploma in Accounting from the Association of Chartered Certified Accountants (UK) and is also a tax consultant. She is a dispute resolution expert, handling commercial disputes from negotiations all the way to litigation (if need be).

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