US and EU patents

Patents are territorial in nature, effected under the national laws of the country, but there is a growing focus towards conformity of the patent laws across different countries.

The TRIPs Agreement, administered by the World Trade Organisation, describes the minimum standard for many different forms of intellectual properties. It requires that member nations of the WTO enact uniform laws for copyrights, trademarks, patents, etc, and provides for remedies, enforcement and dispute resolution procedures.

Membership of the WTO now requires a strict implementation of the intellectual property laws, as per the TRIPS agreement. Despite this, there are a few fundamental differences between the patent laws of some countries, eg, the US and EU states.

The biggest difference is 'first-to-file' versus 'first-to-invent'. In the EU, the filing date is most important, as the person who files for the patent first is awarded the patent, even if the second applicant was the first to invent. On the other hand, the first party to invent is awarded the patent in the US, irrespective of the filing date.

In this, the US stands in contrast to almost all other countries. The patent, in case of several applications for the same invention, is awarded to the party that can prove decisively it invented it first.

Another difference between the EU and US is in regard to the publication of the invention. In the UK, if the invention is publicly available in any form before the filing of the patent application, the patent is not granted. The publication in this case includes articles in a magazine or newspaper, a lecture about the invention, sharing the invention with an investor without first signing a non-disclosure agreement, etc. To constitute publication, it is irrelevant who makes the invention publicly available: the inventor, one of the inventors or an independent third party.

In contrast, inventors in the US have a grace period of one year from the date of publication to file for a patent. The US also provides for the granting of provisional patents. An inventor can file for a patent before the invention is production-ready, just to be able to prove a prior filing date.

The provisional patent doesn't automatically mature into a regular patent. For that, the inventor has a period of one year, within which to file for a proper non-provisional patent.

Finally, software patents are not granted in the EU, unless a technical problem is solved. In the US, however, patent protection is granted to all software.

A registered patent grants the inventor the right to exclude all others from making, selling, using and distributing the subject matter covered by the patent. The exact nature of what is covered by the patent is described as 'claims'. Each patent application thus includes claims which define the exact scope of the patent, and a single patent can have many claims.

Excluding others from selling products

A patent claim shows that the owner has the right to exclude others from using, selling or making the things that are described by the claims. Claims are a relatively new addition to patent laws, especially in European countries, where there was no mention of claims in patent applications until the mid 20th Century.

In contrast, the enactment of the Patents Act of 1836 made claims a strict requirement for all patent applications in the US. A typical US patent application lists all the claims at the end of the application. For example, Apple's 7,469,381 utility patent has 20 claims, and Samsung was found to infringe claim 19, which states: "A device comprising; a touch screen display; one or more processors; memory; and one or more programs, wherein the one or more programs are stored in the memory and configured to be executed by the one or more processors..."