Patents give inventors (or their employers, as the case may be), the exclusive right to use or sell that invention, for a limited period of time.
The rationale behind the grant of a monopoly right to the owner of a registered patent is that of rewarding and encouraging investment in research and inventiveness, by ensuring that the owner can recover his investment and make a reasonable profit therefrom. This monopoly right, however, is not absolute and the law provides a number of limitations intended to avoid abuses thereof.
The invention could relate to products so that new products or improvements to existing products may qualify for protection. Likewise, industrial processes may also be subject to patent protection.
In order for the owner of an invention to benefit from the grant of a patent, the invention must be new, must involve an inventive step and must be industrially applicable. Furthermore, the product/process must not fall within the exclusions elicited by the relevant law. These requirements are further explained below:
In order to be considered new, an invention must not form part of the prior art, that is, it must not have been already available to the public before filing or when priority of the patent is claimed. Availability to the public means that at least one member of the public was free to use the invention. Disclosure to person/s in confidence would not normally invalidate the patent.
An Inventive Step
The requirement of an inventive step means that the invention, having regard to the prior art, contains a step which is not obvious to a person skilled in the art; thus, it is the addition of a new idea to the existing body of knowledge.
This requirement means that an invention must be made industrially or relates to an industrial process. This requirement is generally interpreted widely.
Exclusions from patentability may differ across jurisdiction; however, they generally relate either to products/processes that lack technical effect or technical contribution, or to those that are contrary to public policy and/or morality. As such, the following are normally excluded from patentability:
- Discoveries, scientific theories and mathematical methods;
- Aesthetic creations;
- Schemes, rules and methods for performing mental acts, playing games or doing business and programs for computers;
- Presentation of information;
- Methods for diagnosis or for the treatment or of the human or animal body by surgery or therapy; however this does not apply to products for use in any of these methods.
Oftentimes, products/processes excluded from patentability may nonetheless attract another form of intellectual property protection, such as copyright, designs, or trade secrets.
Patents must be registered in order to take effect, and registration is done in relation to a geographical area. Thus, an invention registered in Malta will only be protected within the Maltese islands.
Patents Granted Under The Patent Cooperation Treaty (“PCT”) – International Patent
An application under the Patent Cooperation Treaty (PCT) is not an international patent per se, but merely provides applicants with a unified procedure for filing patent applications in countries that are party to the Treaty (that is, the Contracting States). A single filing of an international application is made with a Receiving Office (RO) in one language. An international search is then made to establish if there is any prior art related to the application. Publication and an optional international examination will follow. The application is then sent to each of the national offices in the Contracting States designated for registration within the application. It is these national offices which have the power to accept or reject the registration on a national basis; thus, the ‘international application’ is in actual fact, a series of national applications, made simpler through the unification of the application procedure and preliminary search process, and carrying one a filing date in all designated Contracting States. Other than lightening the administrative burden, the international application is also less expensive than filing separate national applications where an applicant wishes to obtain protection for his invention in a number of countries that are outside the European Union.
Patents Granted Under The European Patent Convention (“EPC”) – European Patent
When an applicant intends to obtain patent protection in a number of EU Member States, it is possible to make an application to European Patent Office under the European Patent Convention. Such applications do not have a unitary effect – in other words, just like the “international patent”, an application to the European Patent Office will result in a series of national applications which, though made in a single application process and carrying one application date, can only be finally accepted or by the individual states in which protection was sought, after a validation process has been carried out in each jurisdiction.
European Patent With Unitary Effect – EU Patent
As from 2014, a new application procedure will come into effect. Under this new procedure, applicants will be able to obtain a unitary patent throughout the EU, with the exception of Croatia, Italy and Spain (who did not consent to this procedure). The unitary patent will also be centrally-granted by the European Patent Office; however no further validation requirements need to be fulfilled, thus reducing the applicant’s costs. Applications can be filed in any language provided they translate the application English, French or German. This will also greatly reduce the current translation costs that previously resulted due to the requirement of filing validation of the patents in the national language of the various jurisdictions. Furthermore, a unitary patent will be immediately effective and enforceable in the new Unified Patent Court, rendering decisions on validity and infringement binding throughout the participating Member States.
National Registration With The Malta Intellectual Property Office
It is still possible to apply for a national registration of a patent in Malta in a situation where the inventor or owner of the invention does not intend to promote the invention online or abroad. An application for a Maltese patent is made with the Malta Intellectual Property Office, which will check the application for compliance with national legislation. Where an application has been accepted as eligible for registration, the Comptroller of Industrial Property will register the trademark with effect from the date of application.
Our Patent Registration Services are designed to be as comprehensive as they are holistic. We are able to guide customers in every step in relation to patent registration, starting from patent searches all the way through to the compilation of the patent application form, advice on patent registration strategy in accordance with the key addressable markets of interest and, following patenting, even in initiating patent infringement proceedings. The latter would generally entail litigation on behalf of our clients, while quantifying any damages that might have been sustained in the course of the infringement of the rights conferred by the patent with a view to ask for the relevant courts of law to liquidate such damages.