'Novelty' is another requirement for patentability. This is where the often-heard term 'prior art' comes in. If an invention has been disclosed to the public, prior to the filing of the patent application, this is proof that the invention is not new or original. Such inventions are not granted protection. All publications amount to disclosure, so prior art search involves only proof of publication of the invention prior to the filing of the patent.
A patent can be enforced against anyone who uses the patented technology, regardless of whether or not there is any wilful infringement or copying of the patented technology. Independent development of an infringing device is not a recognised defence.
Article continues below
The length of a patent
A patent in the UK is granted for 20 years, so long as one pays the renewal fees each year. A period of 18-20 years is standard for almost all countries, depending on when the time period starts - date of filing for the patent, or date of grant of the patent.
Patentability requirements are nearly uniform across Europe, so if something is unpatentable in the UK because of the subject matter, it most likely will be unpatentable in other European countries.
Let's quickly discuss utility and design patents, which are at the heart of Apple's suit against Samsung. All patents that cover inventions that produce some useful result are known as utility patents. When you hear the term patent, what is usually being referred to is a utility patent, as utility patents cover the most common categories of innovation.
To qualify for a utility patent, the invention must be covered by one of the following categories of subject matters: machines, comprising moving parts manufactured objects composition of matter, such as chemical compounds and pharmaceutical drugs processes which describe a stepwise method (this covers software).
Just about everything that is invented by an application of the mind can be granted protection as a utility patent, the only criteria being that it must produce some useful result. The patent application for a utility patent must include a detailed description of how the invention was created, along with drawings.
What do patents actually cover?
Design patents cover strictly unique ornamental design of an article or object. The uniqueness of the shape or design must be purely for aesthetic reasons. If the shape is for aesthetic and also functional purpose, then it's considered a utility patent. If the novel feature is incorporated solely for the purpose of ornamentation and its removal doesn't impair the functioning of the device, it's a design patent.
Design patents refer to shape or design that enhances the aesthetic appeal of an object. At the core of the Apple suit against Samsung are the design patents it holds in regards to the iPhone and iPad.
Under UK laws, you won't find any mention of the term design patents. The equivalent term in the UK is 'registered design'. While there isn't any symbol to denote a registered patent, as there is for copyright and trademark, the term 'registered design' is used if the shape or design of an object is registered in the UK.
The purpose of 'trade dress' is to help one create a unique identity that helps the object stand apart from other similar objects. You should be able, by looking at an object, to immediately identify it, without necessarily reading the label. Thus, any combination of colour, font, packaging and labelling that helps one immediately recognise the source of the object qualifies as trade dress.
In most jurisdictions, trade dress is considered part of the trademark laws, as the purpose of both is to create recognition and help customers easily identify the source of the product.