Overview of Patents

A patent is the legal right to preclude another person from making, selling, offering to sell, using or importing any product or process that is covered by the patent. So if you have invented a machine that harnesses solar power and uses it to convert straw into gold, and you are then issued a patent on the invention, you can prevent anyone else from using the machine in any way. Importantly, this includes someone who arrives at the same invention on their own, completely independent or your work.

To be “patentable”, an invention must meet a three-part test and not be subject to any statutory exception. The invention must:

• Have a potential industrial application
• Be new
• Involve an inventive step

The “industrial application” test means that the invention must have the potential to be applied in a product or process for making a product—it cannot be simply a theory that has no practical use. The requirement that the invention is “new” means that no one else has anticipated the invention and either publicly written about it or demonstrated it, meaning there is no “prior art” available or “prior use” of the invention. Be aware, this means that you yourself cannot have publicly written about or used the invention as well. Finally, the mandate that an invention must involve an “inventive step” means it cannot be something that is obvious.

On the face of it, this all sounds fairly straightforward. But determining what inventions are useful, new and not obvious, and describing an invention in a way that the Patent Office will agree that this is the case, is one of the most complicated areas of the law, and requires specialized technical and legal expertise. For this reason, filing a patent application is almost always a time-consuming and expensive process.

In addition, in order to be patentable an invention must not fall within a statutory exception, most of which are meant to either protect the public interest in having certain types of inventions broadly available, or specify certain items that fall outside of the three-part test.

Inventions that are excluded from receiving patents in Ireland include:

• Discoveries, scientific theories and mathematical method
• Aesthetic creations
• Schemes, rules or methods for performing mental acts, playing games or doing business, or a program for a computer
• The presentation of information
• An invention the commercial exploitation of which would be contrary to public order or morality
• A plant or animal variety and certain essentially biological processes for the production of plants or animals
• Methods for treatment of the human or animal body by surgery or therapy or a diagnostic method practiced on the human or animal body

As with the three-part test for patentability, however, interpreting the meaning and scope of these exclusions is not always as simple as it may seem. For example it may in certain circumstances be possible to obtain a patent on the use of a scientific discovery, mathematical application or software program with respect to the technical applications of the invention. If you develop a software program that is an integral part of operating your machine that uses solar power to turn straw into gold, you may be able to get a patent issued on your software program despite the apparent exclusion of patents in that area.