In his first blog post, patent attorney Michael McLaughlin gives us a lowdown on patents, trademarks and copyright and how it is important to know the difference.
By Michael McLaughlin
17 Apr 2009
This blog will be exploring topics in intellectual property (IP) law of interest to the ICT industries. We’ll get the ball rolling by giving a brief rundown on the main types of IP rights available and the differences between them.
You’ve probably heard of patents, trademarks and copyright. These each serve their own function in the world of IP and it is important to know the differences between them. A client once told me he wanted to “register the copyright for his invention”. Uh-uh, it doesn’t work that way. A patent will almost certainly be the correct type of protection for an invention and, generally speaking, it’s not necessary to register copyright.
Let’s review these rights and see how different they are from each other. We’ll focus on patents in this posting, and then have a follow-up discussion on other common types of IP rights next.
Patents
A patent is a monopoly right usually lasting for up to 20 years and will allow you to stop people using (making, selling, importing, etc.) something that functions in the same way as your invention. The monopoly applies whether or not the infringer copied your invention. The infringer might even be doing something which is a variation of your invention, but is still covered by a strong, well-drafted patent. Therefore, a patent can be a very powerful right.
Patents are usually awarded for technical innovations: for example, a new mechanical gizmo, a faster or better computer. Many patents are issued for inventions which are, essentially, solutions to problems.
You have to seek patents country by country. If you have a patent for your invention only in Singapore, you can’t stop someone selling something covered by your patent across the causeway in Johor Bahru (in Malaysia) or over in Batam (Indonesia).
You can’t enforce a patent against infringers until it’s been granted. Enforcement is not automatic; your government is not monitoring this for you and you can’t expect them to send in a SWAT team on your behalf! To enforce your patent, you have to go through the civil courts to obtain compensation and to stop the infringer. The infringer will inevitably counter-claim that the patent is invalid (that is, the patent should not have been granted) and/or that he doesn’t actually infringe the patent.
A patent application must describe the invention in detail when you file it and it includes broader clauses, called ‘claims’, which define the monopoly. If someone does something which falls within the wording of the claims, they infringe the patent.
The application is examined to see whether it meets the requirements for ‘patentability’—principally, that the invention is new and not just an obvious modification of existing technology— before it can be granted. The examination process may involve re-defining the invention (that is, re-writing the claims) in view of that existing technology.
The grant procedure may take several years and it can be expensive, particularly if you have to litigate.
Although patents are national rights, there are various international systems that make things a little more straightforward. One of these is the International patent application system, under the Patent Cooperation Treaty (PCT). You don’t get an ‘international patent’—it is still necessary to split off into specific countries of interest down the line—but it is a fairly flexible system and can help to defer costs while you develop your markets and/or your products.
You may have heard some types of technology are not ‘patentable’. In fact, this is in a fairly limited set of circumstances. For example, you may think software is not ‘patentable’ but it is possible to obtain software patents. We’ll be looking at this in more detail in future. However, to obtain meaningful protection for any invention, it can be crucial that the patent specification is well-written by a skilled patent draftsman and this is especially true for software/computer-related inventions.
You may also think it’s not possible to obtain patents for business methods, another area we’ll look at in future. It may be possible to obtain a patent for a business method depending on the technology implemented and the country you’re trying to obtain the patent in. For instance, patents for ‘business methods’ are alive and well in Singapore today.
Michael McLaughlin is a patent attorney with at McLaughlin IP in Singapore. His practice extends across all areas of engineering and physical sciences, but has a particular focus on ICT.
