The current main legislation is to be found in the
Patents Act 1977 (as amended by the Patents Act 2004),
the Copyright, Designs and Patents Act 1988 and the
Trade Marks Act 1994.
Patents
Application
An application for a patent can be made by or on behalf
of the inventor of a new process or device and the grant
of a patent will be made to the inventor himself or to any
person who is entitled to it, as where the inventor has
sold the idea before patenting it.
What can be patented?
It should not be assumed that every bright idea can be
the subject of a patent. When application is made for a
patent certain essential criteria must be met. It must be
shown that the applicant has an invention; the invention
must not be excluded (see below); it must be new and
not something that would be obvious to lots of people.
The 1977 and 1988 Acts do not define an invention,
but do require that it be made or used in industry. How-
ever, a product, article, material apparatus or process
will generally come within the term ‘invention’ and the
method of its operation or manufacture should be
patentable. Thus, a toothbrush with an integral tooth-
paste tube, and the method of making a particular type
of chocolate bar, should be patentable, as was the bag-
less vacuum cleaner invented by Dyson. As a matter of
interest, the High Court has ruled that a bagless cleaner
subsequently made by Hoover was an infringement of
Dyson’s patent for its bagless cyclonic vacuum cleaner
(see Dyson Appliances Ltd vHoover Ltd(2000)).
Exclusions
Under the Patents Act 1977 certain items cannot be pro-
tected by a patent. Among these are discoveries, so that
if you had been the first person to discover gravity (actu-
ally it was Newton), you could not have patented the
principle of gravity. However, the inventor of a pendulum
clock which utilised gravity could seek to protect the
device.
Computer programs (software) are generally protected
by copyright, but exceptionally, if a program was invented
which enabled the computer to work faster, patent protec-
tion would be available for the programmed computer
and the method of operating it.
Registration
An application for a patent can be made by or on behalf
of the inventor of a new process or device, and the grant
of a patent will be made to the inventor himself or to any
person who is entitled to it, as where the inventor has
sold the idea before patenting it. Application is made to
the Patent Office in London or in Newport, Gwent, South
Wales. The Patent Office is part of the Department for
Innovation, Universities & Skills and it deals with the
granting of patents, registered trade marks and regis-
tered designs.
The Comptroller-General maintains at the Patent Office
a register of patents and the date of entry gives priority
over later inventions. A patent lasts for 20 years but must
in effect be renewed annually by payment of a fee to the
Patent Office. These fees are payable on the anniversary
of the filing date and increase with the age of the patent.
A patent cannot be extended beyond 20 years.Using patents
It should be noted that a patent does not necessarily
give the patent holder a right to usehis invention. For
example, a patented drug may have to be withdrawn
from the market if it does not comply with government
regulations. The right given by a patent is the right of the
holder to controlhis invention, in the sense of having
a total monopoly in the market or allowing others to
market the invention subject to conditions imposed upon
them by the patent holder.Infringement
A UK patent will, in general, be infringed by making,
using or selling something in the UK which is subject
to the patent without the owner’s consent. However, a
UK patent applies only within the UK so that a German
competitor could legally make the invention in Germany,
unless of course there was also a German patent. The
German goods could also quite legally be exported to any
other country where there was no patent, though not of
course to the UK.
Infringement of a patent is a matter for the civil rather
than the criminal law and actions for an injunction,
damages, or an account of profits, are brought in the
Patents Court which is part of the Chancery Division of
the High Court. However, the 1988 Act sets up the
Patents County Court (see Chapter 3 ) where the cost
of actions against infringement are lower.
The Civil Procedure Rules now provide a streamlined
procedure for patent claims in English courts. The aimPart 4Business resources