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To patent or not to patent

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To patent or not to patent

31st October 2018

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“Should I patent my invention or rather keep it confidential and hope a third party does not copy it?” This is a question often posed to patent professionals. Yes, maintaining the confidentiality of the formula of its popular soft drink as a trade secret has worked for the Coca-Cola® company, but one has to be mindful of the ever-present threat of reverse engineering. There is a myth which needs to be dispelled, the myth being that a third party would be able to circumvent an inventor’s patent by making a small change to the invention described in the patent.

A patent is a certificate issued by the State, granting the patentee a monopoly in an invention for a twenty-year period. The monopoly takes the form of a negative right where a patentee is afforded the right to exclude others from making, using, disposing or offering to dispose of or importing the invention claimed in the patent. 

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In exchange for this monopoly, the patentee is required to disclose his/her invention fully so that the invention may be utilised by the public after the expiration of the twenty-year period. The aforementioned requirement, however, does not necessarily mean that a third party would be able to make a small change to the invention described in the patent specification and thereby circumvent the patentee’s monopoly.

A patent specification is comprised of two parts, namely (i) the body of the patent specification and (ii) the patent claims. The body of the patent specification should inform the public on how to utilise the invention after the expiry of the twenty-year period and, therefore, should include a detailed description of the invention. The claims of the patent specification, on the other hand, define the extent of the monopoly granted and are drafted in generic terms and as wide as possible to guard against an instance where a third party would be able to make small changes to the invention described and thereby circumvent the patentee’s patent. Only the essential integers (i.e. elements) of an invention are included in the claims and a third party would still be infringing the claims of a patent even if they were to include additional features or steps in their own invention. It is the claims, and only the claims, that define the scope of the patentee’s monopoly.

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Inventors should also be mindful of the fact that very few jurisdictions provide for a so-called “grace period” whereby an inventor may file for and obtain a valid patent for his/her invention after same had been disclosed to the public.  In South Africa, even secret commercial use of an invention would destroy the patentability of the invention.

Importantly, in the absence of a granted patent, a third party would be free to copy the underlying inventive concept of an invention and the true inventor of the invention would have no recourse against the infringing third party.

Patents are a powerful commercial asset which may be licensed, sold, assigned or form the subject matter of a hypothec. The risk of having one’s invention reverse engineered and freely copied needs to be carefully weighed up against the controlled disclosure of the invention (by the patentee in a patent specification) and the monopoly which issues from a granted patent.

Written by Pieter Lombard

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