It is somewhat ironic that the highest form of intellectual property protective measures enjoys the shortest life-span ever, whereas the weakest form of protective mechanism enjoys the longest. To make matters even worse, so to speak, informal methods of protection last indefinitely! We’ve said this before and I believe it was here.
Anyway, all that’s beside the point. The thing is that even if one wanted to, not all creations or original works may form the subject matter of a patent. Works of art, literature, music and other crafts may be protected by copyright, but certainly not by patent. On the other hand, technological innovation is generally, and typically, the ideal candidate for patent protection. That being said, however, the process to acquire a patent is lengthy, laborious, costly, and requires specialised knowledge. Some say that software, for example, is not patentable. Hogwash! It is, though it isn’t the code itself that is suitable patent material.
Code isn’t patentable because it is a literary mathematical expression or rather math expressed in some form of a set of instructions. However, the idea that has caused the creation of a set of mathematical instructions, however expressed, into one or more technological innovations, together or even separately from its intended use, is.
First of all, the patent attorney will have to carry out a prior art and, perhaps, a clearance search to ensure that the novel work hasn’t been patented already or is patent pending. Secondly, a thorough examination of the invention has to be carried out, in collaboration with the inventor himself, in order to understand what patent strategy will be adopted and finally what claims shall be raised in the patent application.
Lastly, the patent will have to be negotiated with the patent office of jurisdiction and the prosecution history of that particular application recorded together with that particular application or thicket of applications, depending on the strategy adopted. The filing of the claims, therefore, form the very heart of the patent application process, and an error here can prove to be fatal in a patent infringement suit. In fact, it may be such as to exclude the possibility of litigation entirely.
This is why careful planning and drafting by proper professionals is necessary.
This is why your patent application requires the attention and personalised treatment it can only receive here at Calleja & Associates.
