- What is a patent
- What can be patented
- Types of patent: inventions and utility models
- Conditions of patent validity
- The exclusive rights of the holder a patent
- Grant and duration
Obtaining a patent is fundamental for those who investing in innovation and research because this is the only way to be sure of having an exclusive right and to prevent others to copy the product.
It is possible to patent every sort of innovation (machines, objects in everyday use, containers, electronic devices …) or even chemical proceedings to obtain a particular product. Moreover, food, composition and substances are patentable.
The Art. 45 CPI (IP Code) provides that the inventions part of any section of technic may be patentable and
a) discovery, scientific theories and mathematical methods; b) plans, principles and methods for intellectual activities, plays or commercial activity and computer programs; c) information presentations
are not patentable.
However, the prevention is valid if those discoveries or software are considered “as such”, therefore if it is possible to realize an invention through them, they can be, after an appropriate analysis, patented.
Methods for a surgical and terapeutical treatment are not patentable, on the contrary medical devices are. Animal races cannot be patented, but microbiobial preceding are.
If you did not find the example you were looking for, send a message to firstname.lastname@example.org, one of our experts will answer to your question.
Two types of patent exist: for invention and for utility model
- The invention is the strongest type of protection granted to invention having a high level of innovation and giving a new and original solution to a technical problem without a previous solution.
To make you fully understand, here the example of some famous patents:
Moka was patented in the 30’s and invented by Alfonso Bialetti. It had – and still have – a huge success to the point that it is exhibited at the New York MoMA. Once the patent lapsed, Bialetti trademark keeps making the difference among the different types of mokaon the market.
In 1959, Volvo patented the seatbelts introducing them for the first time on its cars. Invented by the aeronautical engineer Nils Bohlin, seatbelts are considered one of the inventions which influenced the most human fate in the ninetieth century.
The microchip is another fundamental invention of the 70’s of the Italian physicist Federico Faggin who was awarded the Innovation Award in 2010 by Barack Obama.
In chemical field, no one can forget Viagra, patented in 1996 as a product of a fortuitous discovery made by some searchers who were undertaking a study into a medication able to cure cardiac diseases.
An invention patent lasts 20 years from the filing date of the application and as all patents cannot be renewed at its expiration.
- The utility model is a type of patent existing in Italy and few other countries. Normally, it is granted without exams also in those countries needing for a substantive examination for inventions therefore it is simpler to obtain but also harder to protect. It lasts 10 years and is not renewable.The utility model is a method of protection for those objects (not proceedings) changing the existing ones in a way that make them more useful or easier to use. Normally a utility model protects the shape of a product with a specific technical functionality.A knife with a left-handed handle, for instance is a utility model.
The utility model represents a modification improving the existing object
It is not simple choosing between an invention and a utility model, for this reason the law gives the possibility to file a “double filing” (art. 84 IP Code), that is the simultaneous filing of the same patent application as invention and utility model. In this case the UIBM (Italian Patent and Trademark Office) chooses between the two solutions.
Apart from the static legislative definition, understanding what could be patentable as invention requires lot of study and practice even if, in short, it is possible to say that the invention represents an innovative solution to a technical problem while the utility model is an improvement to existing objects.
Let’s have a look to the real meaning of this definition
NOVELTY – a patent has to be absolutely new. To say it differently, it cannot be produced or patented anywhere in the world.
The concept of novelty has a broader sense, including in the “state of art” everything that has to be made public, in Italy or abroad, before the filing dateof the patent application. If an object was realized or patented in China and not in Italy it means that everyone in Italy may realize and sell it, but not patent it: the difference is evident, because without a patent a company acts freely and it has any right of selling or “monopoly” on the product on the market.
INVENTIVENESS – A patent has also tobe original and inventive.
There is an inventive activity every time the invention is not obvious at the state of the art for a specialist of that sector.
In order to be patentable, it is not sufficient for an invention to be “new” meaning that it did not exist before, it has to be not trivial and representing a progress, a step forward compared to the present state of art. Sometimes it is hard to decide when a newfound fulfils this requirement and it is advisable to contact an expert for an appropriate exam.
LEGITIMACY – It is not possible to patent object which could harm public morality or opposed to public order. These concepts keep evolving.
USEFULNESS – only solutions which may be replicate on an industrial scale are patentable.
The holder of a patent has the right to make an exclusive use of his/her invention.
As required by the article 66 IP Code, the owner has the right to realize the invention and benefit from it.
The owner has the following rights:
Exclusive Production :
a) if a product is the object of the patent, the right to prevent others, except with the consent of the owner, to produce, use, sell or for this purpose import the product; b) if a procedure is the object of the patent, the right to prevent others, except with the consent of the owner, to apply that proceeding and use, market, sell or import for this purpose the product obtained through that proceeding
In 2016 was introduced in Italy the so called contribution against counterfeiting whereby the owner of a patent is able to defend against those willing to pose into place an indirect counterfeiting, “helping” the counterfeiter realizing a copied product.
The following subparagraphs have been added to the art. 66 IP Code:
2-bis. A patent gives the holder the exclusive right to prevent third parties, except with the consent of the owner, to furnish or offer the means related to an indispensable element to that invention and its realization to people who do not have the right to use that patented invention in the territory of a state where it is protected if the third party may know the usage and the destination of those means in the invention or if he/she may have it easily.
2-ter. The subparagraph 2-bis is not applicable if the means are products already on the market, unless the third party drives the subject to whom those means are furnished to do what is prevented under subparagraph 2.
2-quater. For the purposes of the subparagraph 2-bis, those who act as expressed under paragraph 68, subparagraph 1 are not considered as having the right to use the invention.
The owner holds all propriety rights on the invention (art. 63 IPC), that is the rights to exploit the propriety which could be given and transferred to a third party.
The moral right to be recognized as author of an invention is unassignable and always belongs to the inventor (art. 62) who may not be the owner.
Let’s only think to a patent owned by a company but invented by an employee.
If an employee realizes an invention fulfilling his/her working contract, the economic rights lies on the employer who benefits of every economic profit. The employer has to indicate the employee as inventor, qualifying he/she as “inventor” even if this is only a moral acknowledgment which does not include any co-ownership of the patent.
By granting a patent, law gives the holder exclusive rights.
However, entitlements take effect on the day of the filing of the patent application and lasts 20 years (10 for a utility model) as it lapses, there is no possibility of renew. The patent becomes freely replicable by anyone.
In order to preserve the patent, it is necessary to pay an annual fee. For the utility model, after five years.
- Failure to pay taxes
According to art. 75 IP Code, a patent decays if the annual tax is not payed.This tax should be payed within the expiration or six months after with a surtax. After this additional deadline, the patent decays without chances to have it back.
- Failure in realizing the invention
If during the three years following the granting of the patent and two from the granting to the holder of a compulsory licence, the patent decays (art. 70). But this is only a far possibility.