11 de January de 2023 // Filipa Pereira

Back to basics

Tempo de Leitura //

A patent is an exclusive right which confers on its owner, in a given territory, the monopoly on sales, production and/or use of the patented invention. For a patent application to be granted, patent law requires the invention to fulfil the following requirements, known as patentability requirements:

Novelty: The invention must include at least one novel characteristic which is not known in the body of existing knowledge in the technical field where it is included (known as “prior art”);

Inventive step: The invention must involve an inventive step which cannot be obviously deduced by a person averagely skilled in the technical field concerned (the “person skilled in the art”).

Industrial application: The invention must be of practical use or capable of being used for industrial application.

Should the patent meet all the patentability requirements simultaneously, its owner becomes entitled to prevent the actions of third parties, according to the terms described, without his consent, in the territories where the patent is in force. This means that the launching of a product on the market by a third party, or the mere use of a by-product which includes technical resources protected by a patent in force in a given country without the authorisation of its owner is an infringement of the patent at issue. This protection conferred by a patent is granted for a limited period, generally 20 years, after which the invention will fall into the public domain, i.e. its owner ceases to have exclusive rights in the invention, which will then become available for commercial exploitation by others.

How can this resource be made more valuable?

It should be noted that the countries with a larger volume of patent applications are also those technologically most developed. China, the USA, Japan and South Korea were in the top 10 for international patent applications in 2021, followed by European countries, such as Germany, France, the United Kingdom, Switzerland, Sweden and the Netherlands.

These countries present a higher number of patent applications not necessarily because they are highly developed technologically, which also makes them richer in principle, but possibly for the opposite reason. As a consequence of their culture of protection of inventions and strong investments in this tool, these countries have become technology giants over the years, shielded against potential infringers and even, from a different perspective, holders of a “vault” that is very attractive to the eyes of investors and/or potential partners who are well aware of the system and its value, namely patents.

How does this happen?

Let’s see. When we protect a new solution for a specific technical issue by means of a patent, third parties will be prevented from manufacturing and/or commercialising that solution. To be able to make use of said technology, those parties will have to obtain an authorisation for this purpose from the owner of the patent, through a licence or even the purchase of the right, or alternatively present an innovation in respect of the relevant technology.

When this third party, a competitor company and/or a private or public research body, considers that innovation is an alternative option in view of the new challenge on the market, it will have already gathered knowledge in relation to the application of said new technology, this knowledge comprising both its advantages over earlier solutions and its limitations.

This new knowledge of the most recent state of the art will expedite the research process and the quest for a new technical solution for a new specific technical problem, which may involve the improvement of a certain specific technical feature, savings in the consumption of raw materials or use of a new raw material which will not be continuously affected by market fluctuations or shortage of stocks, or even the implementation of a new method which will make it possible to reduce the wear of the components used to manufacture a solution or product, among many other possibilities.

It can be said that once the window of innovation is ajar, infinite doors of possibilities are opened to do things differently or even make something completely new, and this path cannot be taken without applying the strategy of patenting what is essential for the productivity and prosperity of a company and/or institution.

In fact, if all inventions were to immediately fall into the public domain, humans would not feel this pressing and constant need to do something new and different in relation to what we already have and therefore our contemporary society, with all the assets and resources that are made available to us, would certainly be very different from the one we know.

Statistical data obtained at www.wipo.int

The opinions and views expressed on this Digital Platform are solely those of their authors. These opinions and views do not necessarily represent those of Pereira da Cruz e Associados – Sociedade de Advogados, R.L. or J. Pereira da Cruz, S.A., and their staff or any contributors to this Digital Platform.
They also do not consist of legal or technical advice, so we advise you to contact a lawyer and / or official industrial property agent if you have any questions or concerns regarding these matters.