Together with a number of colleagues, I act as a point of contact for people who get in touch with EP&C for the first time. We answer any questions they may have about Intellectual Property. They have often already looked things up on the Internet, before we see them or talk to them.
Although a lot of information is available, there are still a number of fairly persistent misunderstandings. I have created a Top 3 for you:
1. I have a Dutch patent so it is safe for me to enter the market with my invention.
That is perhaps one of the biggest misunderstandings in our profession due to the fact that a Dutch patent is always granted, even if the criteria of novelty, inventive step and industrial applicability have not been met.
Consequently you could, for instance, be the holder of patent, but still be infringing on an older patent claiming that same right. You should, therefore, always check what your 'freedom to operate' is.
2. A patent is valid for a maximum period of 20 years
You search a patent register and see that a patent was applied for more than 20 years ago. "Aha” you think. “That patent has expired, and I can use that invention for commercial activities". That's not always the case, however.
A patent is always valid for a period of 20 years (as long as the fees are paid). However, this period may be longer if priority has been invoked, for instance. So, if you want to establish the validity of a patent, you should look at the date of filing, and not the priority date. If you count from the date of filing + 20 years, you will nearly always be right. I say 'nearly' because there are exceptions to this, too. We will be examining this in more detail in a future article.
3. With a PCT I have worldwide protection for my innovation
The most popular route when applying for a patent is the so-called PCT route. It allows you to keep your options open when it comes to establishing your patent rights in about 150 countries for a maximum period of 30 months after the date of filing. This is not quite the same as having actual protection in these 150 countries because, for statutory protection, you will first need to apply and complete national patent proceedings in the countries in question.
Incidentally, protection in 150 countries sounds great, but is rarely feasible. (You can read why here).