2. What is Patent ? what can be patented in UK ?

What is Patent ? what can be patented in UK ?

A patent is a government-granted right that gives exclusive ownership of an invention for a limited time. It allows the patentee to control who can use, make, sell, or import the invention. Obtaining a patent offers various financial advantages, such as earning royalties through licensing, building a business without competition, raising capital, or selling the patent.

Table of Contents

We will start with how patent law defines a patent.

Definition: what is a patent?

“A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.”

in other words;

“A patent can be defined as a grant of exclusive rights to an inventor over his invention for a limited period of time (generally 20 years from the date of filing of patent application). The exclusive rights are the right to exclude others from making, using, selling, importing, or offering for sale his patented invention without his permission.”

This implies when you get a patent for your innovative idea, the government gives you a monopolistic right for your invention to stop others from making, using, selling, importing, or offering for sale your patented invention without your permission.

What this means in financial terms is you would get significant monetary benefits for your patented invention by: 

  • licensing your patented invention to other businesses and earning royalties on regular basis as per the agreement
  • you can build a business around your patented invention and stop others from copying it, so there would be no one competing with you with similar products or services and hence can earn significant profits.
  • having a patent for your invention may also help in raising capital for the business

you can transfer all rights of the patented invention to other businesses. That is, you can make significant money by selling your patented invention. 

What can be patented in the UK?

Patentable subject matter in UK

As per the patents act 1977 patentable inventions are inventions that have novelty, inventive step and industrial applicability.

Patent eligible subject matter

Statutory requirement is to check if the subject matter is eligible to be patented under UK patent law, a patentable subject matter fall in the category of invention that is new, having inventive step and capable of industrial application.

Some inventions may not be patentable subject matter such as

  • Literary, dramatic, musical, and artistic works (these can be copyright protected)
  • Inventions which are not useful (such as perpetual motion machines), or offensive to public morality
  • a way of doing business, playing a game or thinking
  • a method of medical treatment or diagnosis
  • a discovery, scientific theory or mathematical method
  • the way information is presented
  • ‘essentially biological’ processes like cross-breeding animals or varieties of plants
  • software that has a ‘non-technical’ purpose
  • abstract ideas
  • laws of nature

Novelty :

An invention is said to be novel if it is not known to the public or does not constitute the state of the art. Any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art.

An invention is said to be novel if all elements of a claim of the invention are not anticipated by a single prior art that is published, or used or known to the public.

Refer our section on “working with patent agent or attorney” on patent drafting for understanding importance of claim and the role they play in patent.

Inventive step or non-obviousness

Now let’s talk about the inventive step, also known as the non-obviousness test for your invention or innovative idea. An inventive step is said to be present in your invention when your invention is non-obvious to a person skilled in the art.

So, we need to identify a feature of our invention that is either technically advance or it is economically significant or both, when it is compared to state-of-the-art or existing knowledge such that our invention becomes non-obvious to a person skilled in the art.

A person skilled in the art is a person who has average skills from your domain. For example, if your invention is related to a mechanical device, the person skilled in the art would be from a mechanical background. If there are multiple technologies used in the invention then a person skilled in the art is assumed to have all the knowledge (that is available and known to the public) from the technologies involved. This is to assess the inventiveness of the invention.

The idea here is our invention should not be obvious to a person skilled in the art (that is an average person from a background of the field of the invention).

In other words, considering the state of the art (things are already known to the public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as the non-obviousness test.

if we review the invention in light of existing knowledge or state of the art, does the invention becomes an obvious next step? If the answer is yes… then the invention is said to be obvious to a person skilled in the art and a patent would not be granted such invention.

Some of the common things that are considered obvious are: 

  • Combine elements from prior arts become mere combination of prior art elements
  • Interchanging or substituting element to obtain similar results
  • Use of known techniques or methods to enhance invention  etc…

In other words, considering the state of the art (things already known to the public) and assuming the person skilled in the art does not have any knowledge about our invention, if that person skilled in the art was asked to solve the problem (that our invention solves), then our invention should not come as a natural suggestion by that person skilled in the art. Which ultimately means invention should not be obvious. This is in essence known as a non-obviousness test.

Few approaches to achieving the Inventive step

A few approaches to achieve the Inventive step are:

  • Inventions is solving a long-standing technical problem which is tried to be solved by prior arts but could not.
  • If the invention is showing unexpected technical effect of a new combination of known elements
  • The degree of difficulty to a person to combine known prior arts to arrive at a solution, etc..
  • The “problem/solution” approach is usually used for evaluating inventive step, wherein the solution presented by the patent application is checked if it is obvious to a person skilled in the art.

And one of the ways to qualify for the non-obviousness test of patentability is mentioning and proving to the examiner that our invention is solving a long-standing problem in the industry. Pointing out that the problem existed for a long time and there was a need to solve the problem, also mentioning existing prior arts and patent references who tried before but could not solve up to a certain extent   (stating problems with the prior arts in the background of the invention while drafting patent) and since the problem has not solved till now it ultimately means the solution to the problem that is our invention was Not obvious.

Now, this is not your job as an inventor to do all this, in fact, this is the responsibility of a patent agent or patent attorney working on your invention.  an experienced patent professional would be asking you for the required details and technicality of your invention and using such information while drafting patent application for your invention which gives a very good chance for your patent application to stand through the examination stage till the grant of patent.

This is explained in detail in the section “preparing patent application (patent drafting)”

Industrial Application:

Invention should be capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;

Industrial application means invention is capable of being made or used in any kind of industry. This is also known as usefulness, a patented invention should be able to be produced on a large scale that is it could be created, used and repeated.

Now if you observe the word in the definition is Capable of industrial application, which means it need not be mass-produced right now, but has the capability of industrial application in the future.  In general, this patentability requirement of usefulness or industrial application is not much of a problem to prove.

Inventions not patentable in UK

What Inventions are not patentable subject matter in UK? there are subject matters which are non-patentable:

  • Literary, dramatic, musical, and artistic works (these can be copyright protected)
  • Inventions which are not useful (such as perpetual motion machines), or offensive to public morality
  • a way of doing business, playing a game or thinking
  • a method of medical treatment or diagnosis
  • a discovery, scientific theory or mathematical method
  • the way information is presented
  • ‘essentially biological’ processes like cross-breeding animals or varieties of plants
  • software that has a ‘non-technical’ purpose
  • abstract ideas: Inventions cannot be too abstract. For example, if your invention is a mathematical formula not tied to any particular process or application, then it is not a patentable invention.
  • laws of nature: Inventions cannot be natural discoveries. If you are fishing in the backwoods and pull a mysterious new fish from the pond then you cannot patent it
  • A patent cannot be obtained upon a mere idea or suggestion.

What extent of information is required to file a patent in UK?

When you are thinking about that innovative idea and its patentability, the first question you need to ask yourself about your idea is how much details you know about that idea and are these details are enough to reduce it into practice?

“innovative ideas (inventions) are patentable only if they are enabling ” provided that it satisfies all patentability criteria. Your idea would be said to be ‘enabling’ if the information you have is detailed enough such that a person skilled in the art would be able to practice the invention without requiring external help or additional research.

In other words, the information you know about your idea is detailed enough such that a person moderately skilled in the art could practice the invention. You don’t need to develop a working model or a prototype of your invention (idea) but you need to know how to implement or practice your invention. such information called “implementable details of invention” or an enabling disclosure of the invention.

“Everything has its beginning in an idea” 

When all you have is one line idea about something that might work or would work then you should know there is work to be done and efforts to be taken before it could get patent granted. That doesn’t mean you need to build your invention or a working prototype, all it means is you need enough details about your idea that would help someone to practice it, it should be enabling !!!

Everything begins with an idea, including inventions that are having granted patents now, started as an idea at a certain point. but a 1 line idea may not be yet patentable, it needs further work so that it becomes invention disclosure (implementable information of the invention) such that a person skilled in the art could reduce it to practice.

You may read our guideline on How to take your innovative idea from idea stage to invention disclosure to granted patent in UK which would help you proceed in step by step manner from idea inception stage to granted patent.

Prasad Karhad
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