Patent: “It Is Not The Right To Do, It Is The Right To Forbid”

In a previous blog, Ana Luisa Maria wrote about the synergy between industry and academia. She mentioned that the dissemination of results in industry is usually done through patents. Indeed, she is right to say that patents prevail over scientific publications, like papers, in the industry. However, the goal of a patent is not the dissemination of results. A patent is a temporary government-granted monopoly right on something made by an inventor. In other words, it is a legally protection of what you are doing or invention, as usually called. “It is not the right to do, it is the right to forbid” was one of the first things I learned from my supervisor in Arkema.

First thing to know is that there are different type of patents. The most popular is the utility patent which give 20-year right to stop anyone from practicing the protected invention. During this period of time there are two possibilities: the inventor could exclude competitors by using the patent and monopolize the market (exclusivity) or make a profit by licensing the patent. This last option means that the inventor could earn money for a license to practice the invention. This becomes an option to recoup the investments made during the invention development and application process, which is really expensive. When the protection period expires, everyone is free to practice the invention.

Besides the revenues generated by a patent, there are other benefits getting a patent. Marketing is one of these. It gives notice to the public that a product or service is protected, becoming a self-advertising. For the industry sector, a patent is an indication of the worth of a company, attracting, in some cases, new investors. Patents are also used as bargaining chips for cross-licensing in which two companies could negotiate a lower license fee or even no fee, representing a strategic advantage and eliminate the possibility of litigation between them.

Roughly, there are three steps to get a patent:

  1. The inventor must file a patent application at the Patent Office.
  2. The Patent Office starts a novelty search, where all the literature is checked in order to find documents that describes the invention. Only documents published before the filing date of the application are taking into account.
  3. An examiner compares the patent application against the state of the art. In case the examiner refuses the patent, the applicant has the right to discuss the decision, giving another chance to get the patent.

If the process is successful, a patent application is published 18 months after it has been filed.

Before file an application, you must write the patent application, describing in sufficient detail the invention. A patent application generally consists of six parts: 1) a statement identifying the field of the invention, 2) an introductory part, 3) a brief description of the invention, 4) a detailed description accompanied by figures (if there are), 5) a number of claims for the invention and 6) an abstract. Normally, the inventor writes the detailed description while the claims and brief description are written by a patent attorney or patent agent. Why? The claims define the invention. They are the heart of a patent. They should be written with a specific lexicon, giving special attention to the scope of the patent to avoid slight deviation or misunderstanding of the claim.

File a patent application does not mean get a patent. And a granted patent is not immune. It is possible to invalidate or annul a patent at any moment as long as the appropriate evidence can be given. This is why, companies have an IP department, with experts on the field, to deal with all the procedures. As you may noticed after read this blog, the procedure for getting a patent is quite long and tough. However, it is an enriching learning experience. I always remember when my supervisor told me “we are going to write your first patent”. Then, she took the time to explain me carefully and well detailed everything around a patent application. Something I will always keep in mind is “the use of language and selection of right words is fundamental to write a good patent” as she stated all the time.


Heidy Ramirez, Arkema