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Ten questions about Intellectual property

What is a patent?
A patent for an invention is the grant of exclusive and temporary right of exploitation. The invention must meet three conditions: : novelty, inventive step and industrial application..

What is novelty?
An invention is regarded as novel if it is not included in the state of the art (i.e. the overall information accessible to the public before the date the patent application is filed). In particular, any former disclosure made by the inventor himself bars the invention from being patented.

What is the inventive step?
This condition is met when the invention is not obvious in view of the state of the art in general.

What is industrial application?
This condition is met if the object of the invention can be manufactured or used in some kind of industry.

What can be protected by a patent?
One can protect by patent law an invention referring to a product, a process, an apparatus or a device, the use of said product, of said process or of said apparatus or device.

A technical solution to a technical problem is considered as an invention. Therefore discoveries, scientific theories, mathematical methods, aesthetic creations, economic activities, information presentations, etc. are generally not regarded as inventions and cannot be patented.

In addition, diagnostic, surgical and therapeutic methods are not patentable because they are not likely to lead to an industrial application. However this exception does not apply to the products used to implement these methods. Thus pharmaceutical products are patentable.
With regard to biotechnological inventions, their legal protection is ruled by the Directive n°98/44/EC of the European Parliament which states the following: plant and animal varieties as well as "essentially biological" processes for the production of plants or animals are also excluded from patentability; this provision does not apply to “microbiological” processes or a product obtained by means of such a process, i.e. if the technical feasibility of the invention is not limited to a given plant or animal variety.

As to the human body and its elements: An isolated element from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention as long as the patentability conditions are fulfilled; and in particular if the industrial application of a sequence of a gene is disclosed in the patent application and the function it will perform is clearly stated.

Some inventions can not be patented if their publication or implementation is considered as being contrary to moral standards and public order. Thus, processes for human cloning, the modification of the genetic identity of human beings, etc. are excluded from patentability.

Is software patentable in Europe?
In accordance with the European directive of May 14, 1991 on the legal protection of computer programs, software is protected under copyright as are literary and artistic works. 
Moreover, the Munich Convention on the grant of European patents of October 5, 1973 specifically excludes software from the field of patentability.

However this exclusion only applies to computer programs "as such" and it is necessary to distinguish two categories of "computer programs":
- computer programs whose implementation produces new and inventive design features are patentable (e.g. industrial process control, data processing representing physical entities .....)
- computer programs taken as such and which are excluded from patentability.
Whereas copyright protects only the source code, independently of its functionality, the protection obtained by patent is generally broader since a patent can protect the functionality, independently from the code.

Is there a European patent?
A patent is a legal title which gives its holder temporary exclusive rights to exploit the invention covered by the patent, in a given country. It is thus possible to obtain a Belgian, American, Canadian patent etc .....

To date there is no "Community patent", but the European Commission is currently looking into this possibility (see http://ec.europa.eu/internal_market/indprop/ patent/index_fr.htm). It is however possible to initiate a procedure at European level by submitting a European patent application which, under certain conditions, entitles the applicant to a European patent that is enforceable in a number of European countries. The applicant indicates the countries where the invention should be protected and once issued; the European patent divides into a "bundle" of national patents in the designated countries. The European office carries out Research and a thorough Examination of the patent application, examines whether the patent application meets the requirements of the European Patent Convention and whether a patent can be granted. The patent must then be validated in each of the designated countries. Once the patent is granted (generally 3 to 5 years after the date of filing), it is published. The patent application is also published (at least 18 months after the date of filing).

What is a PCT request?
An international patent application or PCT, submitted under the terms of the "Patent Co-operation Treaty (PCT)", makes it possible to choose more than 100 countries by submitting a single patent application. (PCT) The procedure is almost the same as the European procedure except that whereas the research of innovation remains compulsory, the thorough examination is optional. The office gives a preliminary opinion on the patentability of the invention and this opinion is transmitted to the national authorities. Each state is free to decide whether the patent can be granted or not.

What is an i-DEPOT envelope?
Called "envelope Soleau" in France, the envelope consists of two parts, in each of which the applicant places an identical document describing or depicting his/her creation as clearly as possible

This envelope is returned to the Benelux Office for Intellectual Property (BOIP), which dates it upon receipt, returns one part to the applicant's address and files the other in its own archives unopened. The standard storage period of an i-DEPOT is 5 years but this can be extended by an unlimited number of 5-year periods.

Submitting an i-DEPOT envelope costs €45. Submitting an i-DEPOT online costs €35.

The i-DEPOT allows you to prove, in a simple, fast and inexpensive way, that a certain idea, concept or process existed on a specific day and it provides evidence of the identity of the author (in the event of a dispute, for example).

The i-DEPOT does not provide intellectual property right. To obtain intellectual property right you need to apply for an intellectual property protection title (patent, trademark, design and models).

What is the use of searching for information in a patent database?
Patents are an important source of technical information. 80% of all technical information is stored exclusively in patents (various source material, among which the Belgian Intellectual Property Office).
Searching for information in patent databases allows you to:
- check whether one is not "reinventing the wheel", a crucial step before starting a research project.
- pinpoint emerging technologies and innovations, and if necessary redirect one's own research work
- access these technologies and make use of them (via licensing agreements for example)
- draw new research ideas
- find solutions to problems of a technical nature
- check whether one can freely exploit a technology, i.e. check that there is no intellectual property right protecting the invention of a third party.
- identify the state of the art (i.e. all the publicly available information on a certain date) before submitting a patent application in order to check whether the criterion of novelty (one of the conditions of patentability) is respected.