What is a Patent? - Asian Novelty

Patents: A Gateway to Innovation and Growth
Patents play a pivotal role in fostering innovation, driving economic growth, and protecting intellectual property. In Sri Lanka, patents are increasingly recognized as essential tools for businesses and inventors to secure their innovations and gain a competitive edge. This article explores the essentials of patents, the intricacies of the Sri Lankan patent system, and the steps involved in securing a patent.

Watch this video

What is a Patent?

A patent is a legal right granted to an inventor to exclude others from making, using, or selling their invention for a specified period, typically 20 years. It is applicable to:

Formulations
Processes
Methods
Systems
Machines
Devices

Key Topics for Understanding Patents

1. Priority Date: Why It Matters

The priority date is the date when a patent application is first filed. It establishes the timeline for determining the novelty of the invention. Filing before publicly disclosing your invention ensures your rights are safeguarded against competitors.

2. Grace Period: A Window for Protection

In Sri Lanka, inventors are granted a one-year grace period after public disclosure to file a patent application. However, to maximize protection, it is advisable to keep your invention confidential until the application is submitted.

3. Validity Period of a Patent

Patents are valid for 20 years from the filing date, subject to annual renewal fees. This ensures inventors can capitalize on their innovations for a defined period while contributing to public knowledge after expiry.

4. Patent vs. Design Patent

While a patent protects the functional aspects of an invention, a design patent (industrial design) focuses on the ornamental or aesthetic features. For example:

Patent: Covers processes, systems, and devices.
Design Patent: Protects the shape, pattern, or look of an object, valid for 15 years.

5. Examining Patentability

Before applying for a patent, it is crucial to conduct a thorough patentability check. This involves:

Patent Search: Utilize free tools like Google Patents, Espacenet, and Patentscope to identify prior art.
Novelty Assessment: Ensure the invention is new and has not been disclosed publicly.
Non-Obviousness: The invention should not be an obvious improvement or combination of existing technologies.
Industrial Applicability: The invention must have a practical use and be capable of being produced or used in an industry.

6. How to Examine a Patent?

Patent examination is a detailed process that evaluates:

Novelty: Is the invention new and unique?
Non-Obviousness: Does it involve an inventive step beyond existing knowledge?
Industrial Applicability: Can it be applied practically?
Patentable Subject Matter: Does it fall within patentable categories (e.g., machines, processes)?

Non-patentable subject matter includes discoveries, aesthetic creations, mathematical methods, and surgical procedures.

Internal and External Procedures for Patent Submission

The patent application process in Sri Lanka involves both internal and external procedures:

Internal Procedure

Initial Patent Search: Identify prior art and assess novelty.
Technology Disclosure: Draft a clear and detailed description of the invention.
Patent Drafting: Create a techno-legal document.
Pre-Submission Review: Refine the draft to ensure compliance with legal standards.

External Procedure

Application Submission: File the patent with the National Intellectual Property Office (NIPO).
Formality Check: Verify the completeness and correctness of the application.
Substantive Examination: Evaluate novelty, non-obviousness, and industrial applicability.
Office Actions: Respond to queries or amendments suggested by examiners.
Patent Gazette Notification: Publish the patent for public review.
Grant and Maintenance: Secure the patent and renew it annually.

7. Responding to Office Actions

Office actions are examiner requests for clarification, amendments, or additional documentation. Effective responses include:

Addressing specific issues raised.
Providing supporting evidence or revised claims.
Ensuring compliance with legal requirements.

Services and Opportunities

Platforms like Asian Novelty offer end-to-end patent services, including:

Patent drafting and filing.
Patentability assessments.
Market research for commercialization.
Connections with IP lawyers, funding sources, and manufacturing partners.

The Sri Lankan Patent Landscape: By the Numbers

According to WIPO 2023 data:

Applications Filed: 416
Granted Patents: 200 (~50%)
Grant Delays: 63 months on average
Examiner Workload: 41 applications per examiner

If an invention is not protected by a patent, the following consequences may occur:

1. Loss of Exclusive Rights

Without a patent, the inventor cannot prevent others from making, using, selling, or distributing the invention. This loss of exclusivity can allow competitors to replicate the invention and benefit from it without permission or compensation.

2. Increased Risk of Exploitation

Competitors or larger companies might use the unprotected invention without crediting or rewarding the inventor. This is especially risky in industries with rapid innovation cycles, where first-mover advantage is crucial.

3. Missed Commercial Opportunities

A patent is a valuable intangible asset that can attract investments, partnerships, and licensing deals. Without a patent, it becomes challenging to:

Demonstrate the uniqueness of the invention to potential investors.
Monetize the invention through licensing or sales.

4. Lack of Legal Protection

In the absence of patent protection, the inventor has no legal recourse against infringement. Even if someone else patents the same invention later, the original inventor might lose the rights to it entirely.

5. Diminished Market Credibility

Patents signal innovation and quality, enhancing a product’s credibility in the market. Without a patent, customers and investors may view the invention as less innovative or trustworthy.

6. Potential Loss of Ownership

If the invention is disclosed publicly (e.g., through social media, publications, or exhibitions) without applying for a patent, it might lose its novelty. In most jurisdictions, including Sri Lanka, this makes the invention ineligible for patenting after a grace period of one year (if applicable).

7. Difficulty in Securing Partnerships

Patents are often required when forming partnerships or entering joint ventures. Without patent protection, partners may hesitate to collaborate due to uncertainty about the invention’s ownership and competitive advantage.

8. Missed Opportunity for Revenue Generation

A patent enables inventors to:

License the invention to third parties for royalties.
Use the patent as collateral for loans or investment. Without a patent, these revenue streams remain untapped.

9. Ineligibility for Certain R&D Benefits

Governments and organizations often provide grants, tax incentives, or funding support for patented inventions. An unprotected invention may not qualify for these benefits.

10. Risk of Becoming Obsolete

In fast-paced industries, unprotected inventions may quickly become obsolete as competitors introduce improved or similar versions without the original inventor gaining any recognition or profit.

If you apply for a patent, several positive outcomes and processes unfold, but challenges may also arise. Here’s a breakdown of what happens when you apply for a patent:

1. Protection of Your Intellectual Property

Once you file a patent application, your invention gains “patent-pending” status. This:

Establishes your legal right to the invention’s ownership.
Deters others from copying or using your invention without permission.

2. Establishment of Priority Date

The date of your application becomes the priority date, securing your claim to the invention. This is critical in determining the originality of the invention if disputes arise.

3. Patent Examination Process

Your application will go through the following stages:

Formal Examination: Ensures all required documents are submitted correctly.
Substantive Examination: Evaluates your invention for:
- Novelty: Whether it is new and not already publicly known.
- Non-Obviousness: Whether it involves an inventive step beyond existing knowledge.
- Industrial Applicability: Whether it can be practically used in industry.
Office Actions: Examiners may raise questions or request clarifications, which you must address within the stipulated time.

4. Public Disclosure

Once the patent application is published (usually after 18 months), your invention details become publicly available. This enhances transparency but also makes your invention visible to competitors.

5. Granting of the Patent

If the application passes all examinations and any required amendments are made, your patent is granted. With the grant:

You obtain exclusive rights for 20 years (if maintained through annual renewal).
You can enforce these rights through legal actions against infringers.

6. Benefits of a Granted Patent

Market Advantage: Use your patent to create a unique market position for your invention.
Revenue Opportunities: License or sell your patent to generate royalties or capital.
Collaboration Potential: Attract partnerships, funding, and joint ventures with protected intellectual property.
Asset Value: Your patent becomes a tangible business asset, increasing the valuation of your company.

7. Responsibilities After Applying

Respond to Office Actions: Address feedback from examiners promptly.
Maintain Confidentiality: Avoid disclosing further developments until they are also protected.
Renew the Patent Annually: Pay maintenance fees to keep your patent rights active.

8. Challenges and Considerations

Rejection Risk: If the invention is not deemed novel, non-obvious, or industrially applicable, the patent may be rejected.
Time and Cost: The patenting process can take years and require significant investment in drafting, filing, and responding to office actions.
Territorial Rights: A patent is valid only in the countries where it is granted, so international protection requires additional filings.

Conclusion

Applying for a patent is a strategic move to safeguard your innovation and unlock its commercial potential. While the process involves time, effort, and cost, the long-term benefits of exclusivity, market leverage, and revenue opportunities make it worthwhile for inventors and businesses.

Would you like guidance on drafting your patent application or exploring commercialization strategies?

Final Thoughts

Understanding the intricacies of patents, from filing to commercialization, is key to leveraging them effectively. Sri Lanka’s evolving patent framework provides a foundation for innovation and growth. By addressing delays, raising awareness, and fostering support systems, the country can unlock its full potential in the global innovation ecosystem.

For expert guidance and resources, visit Asian Novelty.