What can be patented? Everything you need to know

Intellectual property law is closely intertwined with the innovation that arises from research and development (R&D) activities.

Valuable and protectable intellectual property may be a byproduct of R&D (or the main goal). Having it recognised as innovative by the Intellectual Property Office (IPO) with a patent, might count as important evidence of your innovation when making R&D tax relief claims, although the timelines of each process may not always align.

In this article we will examine the patent process, informing you of everything you need to know: from what can and can’t be patented, to how you apply.

What is a patent and how long does it last?

A patent protects a specified invention from being used or commercialised by a third party without your permission. Patents are granted by governments and only apply to their geographical jurisdiction; although you can apply for patents in multiple jurisdictions if you feel it is necessary.

If you successfully gain a patent, it means you can take legal action against anyone in breach of it to protect your interests.

In the UK, a new patent automatically lasts for five years. After this, you have the choice to reapply for it annually up to a maximum of 20 years. After 20 years, whether it is still of value to you or not, others can use your invention for their own gain without your permission.

Having a patent is not a guarantee of commercial success. The potential benefits of pursuing this endeavour should be carefully weighed against the associated costs and challenges.

There are other forms of intellectual property protection available in the UK and beyond. These include registering a trademark, registering a design and copyrighting creative work.

What can you patent?

Patents are for inventions. There are several criteria which must be met for an invention to meet the threshold of patenting. While the application process is extensive, there is no assurance of a favourable outcome.

The core criteria for patenting are that:

• It must be something which can be made and used, or a technical process or a methodology
• It must be new. This means it is not publicly available anywhere across the globe, or its essence described, say, in print or other media.
• It must be inventive so you must demonstrate that you were not just making an obvious change to something which already exists.

Based on these fundamental principles, a vast array of inventions can be patented, with a few notable exclusion.

Some examples of inventions you could patent include a brand-new chemical compound, a new type of tool or machinery, a business method and certain types of computer software – ones which have a technical purpose.

What can’t you patent?

As indicated above, there are somethings you cannot patent (although you may be able to protect the intellectual property in different ways).

You can’t patent discoveries – like objects or species found in the natural world – or scientific theory. You can’t patent art, presentations of information or ways of doing business or thinking.

If you are unsure, it would be wise to consult with a patent attorney before proceeding. They can use their expertise to advise you before you embark on the process, so you are not wasting your time. In any case, it is sensible to draft in professional help as there is a lot at stake.

How to apply for a UK patent

You apply for a patent through the Intellectual Property Office in the UK. Currently the overall application cost is £310, although you should expect to pay several thousand pounds in total once the fees of an independent patent attorney are accounted for.

Do your research and don’t be surprised by the length of the patent application process, or the level of detail it will go into. It can take several years and looks something like this:

Stage 1 – Before you start, do your own research as to whether it is worth applying for a patent, considering your chances of success and the value of the patent to you over the coming years. Decide on what professional advice you are going to enlist and understand the costs.

Stage 2 – Prepare your application by describing your invention: how it works and how it could be made, outlining its technical features (your claims) that you wish to protect, along with a summary of the technical aspects (the abstract). There is prescribed information which must be included, which your patent attorney or other consultant can advise you on. Note that you cannot change your invention once the application is submitted and if you make significant mistakes the application could be rejected at the outset, with a loss of rights to reapply for the same invention.

Stage 3 – Once you have filed your application with the IPO, they will conduct a “search” to ascertain whether it meets the thresholds of being new and inventive. After about 18 months they will publish your application in full. At this stage, competitors will be able to see your invention.

Stage 4 – Following this, the IPO will make a thorough analysis of whether your invention will achieve a patent. This is called the “substantive examination” and can take years to complete. They can ask you to make changes based on their examination, and you will not receive the patent unless you comply with these.

Stage 5 – If successful they will grant you a certificate.

Protecting your patented invention abroad

If you are entering overseas markets or believe it’s necessary to protect your patent in other territories, you’ll need to apply for patents in those specific locations.  The UK government may assist you in this through attachés.

Sometimes this can be fast tracked if a foreign government is set up to extend your UK patent; other times you may need to go through the whole process again. The World Intellectual Property Organisation (WIPO) is a good starting point for further research.

An international application through the Patent Cooperation Treaty (PCT) – administered by WIPO –may be able to get you a UK patent at the same time as ones in other designated countries.

Help for innovative businesses

For innovative UK limited companies seeking guidance on patent grants and the application process, we strongly recommend our trusted grant partner. Their expertise will prove invaluable in navigating the intricacies of applying for a patent.

Alternatively, you can book a free consultation today and we can help point you in the right direction.

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