Technical innovations or inventions have never been more important to maintain or strengthen your market position. But if your new products are immediately infringed and put into the market at a lower price than yours, your commercial head start will vanish into thin air. Furthermore, the infringers also take advantage of your efforts and investments.
That is why you should make sure that your innovations are adequately protected by patents.
Protect your innovation against infringement by a patent
A patent protection is the only effective way to combat infringement. Indeed, a patent offers an exclusive and a legally enforceable right to prohibit others from exploiting your invention.
This right is limited to the countries for which the protection was applied. The maximum protection period is mostly limited to 20 years.
First of all, an invention should be of a technical nature. It may be a product, such as a construction, a mechanism, a machine, a part of a machine or an utensil, but also a new procedure (technique or method) can be considered as an invention.
A vague idea is not sufficient. The essential technical features of your innovation must be known. They constitute the basis of your patent application. Moreover, we need to be able to describe a specific, workable embodiment of the invention.
It is however not necessary to dispose of a prototype. A drawing of a realizable and workable embodiment of the invention may suffice.
This implies that the essential characteristics of your invention have not been disclosed anywhere in the world prior to the filing date of the patent application. Nor by yourself.
This means that you must keep the invention strictly confidential until the day on which the patent application is filed. For example, your invention must not be shown in advance at a fair. If you do not comply with this requirement, your patent application may be declared invalid.
This also means that you should be extremely cautious when discussing your invention with persons from outside the company, such as customers or suppliers. It is best to wait until after the patent application has been filed. In case you wish to do so anyway in advance, it is of paramount importance that a confidentiality agreement (non-disclosure agreement or NDA) is signed.
It is advisable to also impose a confidentiality agreement on your employees, which could for instance be included in the employment agreement.
Inventive step requirement
This requirement implies that, for a person skilled in the art in the relevant sector, the invention must not be obvious compared to what is already known. There are many misconceptions about this requirement; the standards in this respect are not as high as you may think.
Our engineers dispose of the necessary technical insight, a thorough knowledge of existing case law of the European Patent Office as well as an extensive professional experience in the field of official procedures in order to assess whether or not your invention meets this requirement.
An invention should be manufactured or applied in the industrial or agricultural sector. It will only occur extremely rarely that an invention does not meet this requirement.
In a non-binding and free meeting, we establish whether, at first sight, your invention meets the legal requirements to obtain valid patent protection.
If such is the case, we generally advise to carry out an additional patent search and feasibility study. During this preliminary search, we search for relevant patent publications for your particular field and we assess whether these publications contain information that could impede on the validity of your patent application.
Moreover, as KOB is a certified SME-portfolio service provider, this preliminary search may be subsidized up to 40%.
The preliminary search is not compulsory, but a positive result will improve your chances to a valid patent protection. Furthermore, it will give us a better idea of what is already known in your particular field, which may prove very useful when drafting the patent application.
Once the optional preliminary search is finished, we will draft the patent application, based on your technical information. After consultation and any possible amendments, the patent application will be filed in accordance with the procedure you have chosen. Your protection is valid from the date on which the application is filed.
From that moment, your patent application will follow a granting procedure, in which the official authorities will investigate whether the invention meets the validity requirements. We will closely follow this procedure and in case of objections, we will defend your patent application and/or make any necessary amendments. All of this will of course be done in close consultation with you.
Furthermore, we will be available to provide you with advice on other aspects relating to your patent protection, such as the conclusion of a licence agreement, or on tax advantages in connection with patents, such as the ‘tax exemption for patent revenues’ in Belgium.
The national procedure
A national patent application leads to a national patent which protects you against infringement in the country of application. National patent applications can be filed in almost any country in the world. In this respect, we cooperate with an international network of local patent attorneys, who also follow the procedure and defend the application and/or make amendment to make sure that your patent is granted.
The European procedure
A European patent application is filed, and examined by the European Patent Office (EPO). A patent that is granted by the EPO can be validated in the countries that have acceded to the European Patent Convention. You decide in which countries you validate your patent. This allows you to obtain patent protection in the countries of your choice in one single procedure. This procedure results in a bundle of national patents that are subject to the respective national legislation in each country.
The ‘European patent with unitary effect’ (unitary patent) will be launched soon (expected in 2018). The unitary patent will be valid in the whole of the 25 participating member states (the EU member states without Poland, Spain and Croatia) and will offer unified protection in the territory of these states.
The international patent application (PCT)
By filing an international patent application, you initiate an international procedure, during which your patent application is searched and assessed by one international examining authority. The procedure will lead to number of national or regional (in case of a group of countries) procedures which may result in a patent protection in all the countries that have acceded to the Patent Cooperation Treaty (PCT). You choose the countries for which you wish to follow the procedure. An important advantage of this procedure is that you can defer the choice of countries and associated costs until 30 months after the filing date of the first patent application for your invention.
There are important differences between all of these procedures. KOB will assist you in making the right choice to suit your activities and interests.
The maximum protection period is mostly limited to 20 years.
By filing a first patent application in one country, you are granted a priority right, which you can invoke during a period of 1 year following the date on which the first patent application was filed.
What does this mean? When you file a patent application for the same invention in one or more other countries within one year, the date of the first patent application will apply as the date on which the subsequent patent applications have been filed. So, this will enable you to defer the filing of other patent applications, provided you do not exceed the one-year-period.
In practice, many choose to begin by filing a Belgian patent application. During the priority year, you will receive the official search report for your first patent application, which will enable us to assess the strength of your patent protection. In the course of this year, you can also estimate the commercial value of your innovation or conduct a market study in order to verify in which countries you need protection.
This will allow you to defer the costs for a more extensive territorial protection until you can better assess the strength of the protection and the value of the innovation as well as the commercial necessity of a patent protection in several countries.
In virtually every technical domain, there are thousands of patents.
Anyone who develops new products or techniques, may unconsciously use or develop something for which a patent protection has already been granted. If your innovation is already exploited, you may be condemned for patent infringement and forced to cease any commercial exploitation.
You should therefore be aware as soon as possible whether or not you risk to come into conflict with an existing patent, so you can adjust the design of your product or method. In this respect, we offer a ‘freedom to operate assessment’: by conducting a patent search, we search for impeding patents, which we study in order to find out what the risk of these patents is for you.
If necessary, we will assist you in providing the necessary technical adjustments to your product or technique in order to steer clear of the impeding patents.
When you are accused of patent infringement, you can contact us for advice on the possible consequences and the taking of counter-actions.
We assess the validity of the patent that is invoked against you and we search for evidence and arguments to refute the allegation. Next, we draw up a reply in order to adequately respond to the accusation, and, if necessary, we can bring you in contact with a specialized lawyer.
Also in case of a possible infringement of your own patent protection, KOB will be your first contact point. We investigate whether the infringing products fall within your protection and in case of infringement, we can summon the infringer in writing to respect your patent. We can also bring you in contact with a specialized lawyer, who will assist you in case you need to take legal action.
Since 1981 KOB has ensured the adequate protection of your intellectual property against counterfeiting in Belgium and abroad.
Our team includes experienced engineers and legal experts who undertake ongoing further training and who are officially recognised on a Belgian, Benelux and European level so that your invention, trademark or design is in safe hands.
President Kennedypark 31C
Tel. +32 (56) 21 35 38