Patents
What is a Patent?
A “patent” is a contract between two entities: between the inventor and the state. The state seeks to publish the idea for the benefit of the general public, and in return it grants the inventor an exclusive monopoly on his invention for 20 years from the date of filing the patent application. The strength of exclusivity, of course, stems from the description of the invention in the patent, and therefore care must be taken when writing the patent, to accurately describe the invention down to the level of enablement, and to claim within the Patent the protection required for the invention.
The fact that the state is willing to give the inventor an initiative, to enjoy and exploit the profits from his ideas, is tremendous, especially for those who know how to enjoy this possibility and maximize the potential. What is the state’s interest in doing so? Instead of the patent being kept secret, it will be published and circulated for promoting transparency and knowledge share, which in turn can enhance and progress the economy. Furthermore, after 20 years, when the patent becomes obsolete, anyone can use it completely freely. A good example of this is the medicine Prozac, on the day the patent expired, the stock plummeted drastically, and why? Because at that point anyone could produce and sell the medicine with the active ingredient of the Prozac medicine.
What is a Patent according to the Israeli law?
The Israeli law defines a patent as something that can be a new product, or a new method. A patent can be a new combination of known things, that is, a connection or a combination of things, where the connection is not obvious, or when the result of the connection is not obvious. For example, a combination of two different fields: biology and electronics, is not an obvious connection. A patent can also claim a non-obvious result, like connecting 1 and another 1 and getting a result of 3.
A patent in Israel protects against the production, use, offer for sale, sale or import without the permission of the patent owner.
Regional protection
The protection of “intellectual property” (IP) is regional (there is no such thing as a “worldwide patent”) and depends on the country in which the protection is sought. The protection of IP usually depends on the state laws of where the IP protection is sought. Thus, the question arises of how one can protect his inventions in many countries? Or how, one can build a worldwide protection for his inventions?
Paris Convention
In 1883 some of the policy makers in the world met to answer this question, and together they formed the “Paris Convention.” Under the Paris Convention, the date of filing a patent application in one country will be recognized by another contracting country as the due date for novelty issues, if the application is filed in the other country within one year of the initial filing in the first country. For example, if an inventor files the initial patent application in Israel and then files a U.S. patent application, within one year of the initial filing, while claiming priority from the Israeli application, the U.S. will recognize the earlier Israeli application date for the later U.S. filed application, even though the U.S. filing date is later. This process gives a priority of up to a year in terms of primacy, inventiveness, and inventive step. Continuing the example, even if a second inventor comes and files a patent for the same invention in the US in the time between the first inventor’s filing date of the Israeli patent application and the filing date of the US patent application, the first inventor will receive primacy, and the patent will be his due to the previous Israeli application date.
According to the Paris Convention, discrimination between countries is prohibited and therefore submission in any country, which is a signatory to the Paris Convention, obliges all contracting member of the Paris Convention. The Paris Convention is a very popular and a valid treaty in almost all the leading countries in the world. The advantage of the Paris Convention is not only the convenience it provides for the inventor, who does not have to file his application in all countries at once, but it is also often a much-needed break for the novice entrepreneur, as filing a patent in all leading countries can be costly. Thus, the Paris Convention provides a priority, of up to a year, to raise capital and invest in development. Thus, the initial filing “buys” the developer an extension of one year until the patent application needs to be filed in other countries.
The advantage of being small
The ‘Paris Convention’ gives a relative advantage to small countries, where the initial filing is relatively cheaper. For example, if the patent application is filed in Israel, where the associated fees are relatively cheaper, the filing provides a protection for one year in all the contracting members of the Paris Convention. In addition, the initiation of the Paris Convention in a small country provides an additional year of protection in the large countries, since the validity of 20 years in the large countries begin only at the time of submission in them, i.e. up to one year after the initial submission. However, one of the problems with the Paris Convention is that a year of priority in most cases is not enough. Therefore, the policy makers convened again for establishing the PCT (Patent Cooperation Treaty) convention.
PCT Convention
The PCT Convention is an extension of the Paris Convention. Under this convention, if within one year of the initial submission, the inventor submits an application to the PCT, he may also submit the same application in other countries (members of the PCT Convention) at a later date, up to 30 months (depending on the country) from the date of initial application. In addition, in the PCT process there is also the examination stage of the patent application. In this PCT process the inventor will receive an examination report, prepared by a certified examiner of the PCT, with an indication of the merits of the inventiveness and inventive step of the invention described in the application. In some cases, the examination allows the inventor to receive for the first time, a professional opinion on the quality of his invention.
Differences between the conventions
In addition to the described above, there is also another difference between the two conventions, in calculating the life span of the patent. Under the Paris Convention, the patent life, which is 20 years, is calculated from the moment the application is filed in that specific country, despite the gain of one year of priority from the initial filing in another country. For example, if an inventor files the initial patent application in Israel and after one year files the U.S. patent application, the U.S. will recognize the earlier Israeli application date for the initial U.S. application, but will only start the patent life from the moment it is filed in the U.S. Thus, it is possible, so to speak, to extend the life of the patent to 21 years. In contrast, under the PCT Convention, the life of the patent is calculated in different countries from the moment the PCT application is filed. When applying for a patent, in the various countries under the PCT Convention, the countries compute the length of the patent life from the date of filing the PCT application.
A Provisional Application
Since, as explained above, the life of a patent can be extended to 21 years under the Paris Convention where an application can be filed in one country and after less than a year it can be filed in another, an imbalance has been created for the applicants who initially file their application in the U.S., which is the largest market in the world. The purpose of a provisional application is to retain the filing date for one year. Thus, an inventor can file a provisional patent application, and after one year file the same patent application as a regular patent application; thus maintaining a priority from the initial date of the provisional. The Patent life span will be calculated only from the moment the regular patent application has been filed. It is important to note that in the provisional application the invention must be fully and accurately described, even though the provisional application will not be examined, otherwise, the provisional application will not be considered as the priority of the regular application. The danger here is that the inventor may reveal his idea after the provisional application has been filed, incorrectly assuming that he is protected by the provisional application. Nevertheless, if the invention is not fully and accurately explained in the provisional application, the inventor may become the premature advertiser of his own invention. A metaphor for this situation may be about a person walking around with an umbrella just to discover, too late, that that the umbrella does not protect him from the rain.
Pros, cons and tips. Summary:
Where there is a patent, the patent will grant the maximum protection without the need to prove copying or theft, when a product is infringing the patent. Even if the infringement was made in good faith, the patent owner may demand compensation and the disposal of the infringing product.
In general, it is advisable to file the patent application as soon as possible. Even if two people have applied for a patent for the same invention, only the first of them will obtain a patent for his invention. The first to submit is the one who will receive the patent. History does not remember the inventor who applied for the aviation patent application 3 months after the Wright brothers filed their patent application.
