Patents: does the goal justify the means?

Patents relate to technical inventions, which must be new and inventive. New means that there is no publication anywhere on earth that shows the invention, whereby expressions on the internet also count as publication. A publication is therefore a pretty absolute concept. On the other hand, the concept is inventively more complicated; in short, it means that an invention should not be obvious.

A patent gives the patent applicant protection for the patented method or product. This method or product is at the end of a patent document and is set out in claims (or conclusions). It is not allowed by others to copy the product or to follow the working method. A patent generally gives a strong protection of an invention.

The purpose of a patent is primarily to gain protection from the invention. But there are more and sometimes also parallel goals; a patent can add value to a company; a patent can be sold; a license can be given to another party; a patent gives an innovative image; and so on.

A patent can also be used to make it clear to subsidy providers that an innovation has taken place, which then fulfills this requirement for the relevant subsidy if this is the case. Similarly, a patent can be used for other tax purposes. And furthermore, the patent can be used as a defensive or offensive weapon: defensive to defend the patent holder if, for example, it is held liable for infringement, and offensive to keep others off the market.

A patent is only valid in a certain country, for example the Netherlands. Apart from “Europe” there are hardly any or no common patents, for example for North America. As a result, if the patent holder wants to have protection for the invention in many countries, this will entail a considerable investment. The investment is considerable even for the Netherlands. Therefore, it is desirable that an image is formed in advance where, when and how the investment is earned back. And does it require a patent, or more, or in more countries, and so on.

Fortunately, part of the investment can often be earned back through subsidies. Subsidies are important in addition to investments and capital from investors, especially in the initial stages of a company. In a later phase, subsidies can also contribute to reducing the costs of innovations to be incurred by an entrepreneur. Unfortunately, the timing of innovation, cash flow and patent granting rarely run parallel. A careful budget, entrepreneurship, planning and consultation can prevent the worst misery. These “means” seem to be relatively sacred in practice, that is, indispensable.

Whether the purpose of protection justifies the means may perhaps be better transformed into the question of whether the means sanctify the goal. Dr. Leon Vogels -Europees Octrooigemachtigde van Octrooibureau Los & Stigter

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