Editing Patent (section)

==Law==
{{Intellectual property}}

===Effects===
A patent does not give a right to make or use or sell an invention.<ref name="Herman"/> Rather, a patent provides, from a legal standpoint, the [[Natural and legal rights|right]] to ''exclude others''<ref name="Herman"/> from making, using, selling, offering for sale, or importing the patented [[invention]] for the [[Term of patent|term of the patent]], which is usually 20 years from the filing date<ref name=PatentLength>Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights ([[TRIPS]]).</ref> subject to the payment of [[maintenance fee (patent)|maintenance fees]]. From an economic and practical standpoint however, a patent is better and perhaps more precisely regarded as conferring upon its proprietor "a right to ''try'' to exclude by asserting the patent in court", for many granted patents turn out to be invalid once their proprietors attempt to assert them in court.<ref name="lemley-2005">{{cite journal |author=Lemley, Mark A. |author2=Shapiro, Carl |year=2005 |title=Probabilistic Patents |journal=Journal of Economic Perspectives, Stanford Law and Economics Olin Working Paper No. 288 |volume=19 |page=75 |doi=10.2139/ssrn.567883 |s2cid=9296557}}</ref> A patent is a limited property right the government gives inventors in exchange for their agreement to share details of their inventions with the public. Like any other property right, it may be sold, licensed, [[mortgage law|mortgaged]], assigned or transferred, given away, or simply abandoned.

A patent, being an exclusionary right, does not necessarily give the patent owner the right to exploit the invention subject to the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else's patent.<ref name="Herman"/> If an inventor obtains a patent on improvements to an existing invention which is still under patent, they can only legally use the improved invention if the patent holder of the original invention gives permission, which they may refuse.

Some countries have "working provisions" that require the invention be exploited in the jurisdiction it covers. Consequences of not working an invention vary from one country to another, ranging from revocation of the patent rights to the awarding of a [[compulsory license]] awarded by the courts to a party wishing to exploit a patented invention. The patentee has the opportunity to challenge the revocation or license, but is usually required to provide evidence that the reasonable requirements of the public have been met by the working of invention.

===Challenges===
{{anchor|Invalid patent}}
In most jurisdictions, there are ways for third parties to challenge the validity of an allowed or issued patent at the national patent office; these are called [[opposition proceeding]]s. It is also possible to challenge the validity of a patent in court. In either case, the challenging party tries to prove that the patent should never have been granted. There are several grounds for challenges: the claimed subject matter is not [[patentable subject matter]] at all; the claimed subject matter was actually not new, or was obvious to the [[person skilled in the art]], at the time the application was filed; or that some kind of fraud was committed during prosecution with regard to listing of inventors, representations about when discoveries were made, etc. Patents can be found to be invalid in whole or in part for any of these reasons.<ref>{{cite journal|last1=Ford|first1=Roger Allan|title=Patent Invalidity Versus Noninfringement|journal=Cornell Law Review|volume=99|issue=1|pages=71–128|url=http://cornelllawreview.org/files/2013/11/99CLR71.pdf|url-status=live|archive-url=https://web.archive.org/web/20161017073705/http://cornelllawreview.org/files/2013/11/99CLR71.pdf|archive-date=2016-10-17}}</ref><ref>{{cite journal|last1=Silverman|first1=Arnold B.|title=Evaluating the Validity of a United States Patent|journal=JOM|date=1990|volume=42|issue=7|page=46|url=http://www.tms.org/pubs/journals/JOM/matters/matters-9007.html|doi=10.1007/bf03221022|url-status=live|archive-url=https://web.archive.org/web/20160823135108/http://www.tms.org/pubs/journals/JOM/matters/matters-9007.html|archive-date=2016-08-23|bibcode=1990JOM....42g..46S|s2cid=138751277|url-access=subscription}}</ref>

===Infringement===
{{Main|Patent infringement}}
Patent infringement occurs when a third party, without authorization from the patentee, makes, uses, or sells a patented invention. Patents, however, are enforced on a national basis. The making of an item in China, for example, that would infringe a US patent, would not constitute infringement under US patent law unless the item were imported into the US.<ref>{{cite book|last1=Mallor|first1=Jane|title=Business Law: The Ethical, Global, and Budiness E-Commerce Environment |year=2012|publisher=McGraw-Hill/Irwin|isbn=978-0073524986|page=266|edition=15th}}</ref>

Infringement includes literal infringement of a patent, meaning they are performing a prohibited act that is protected against by the patent. There is also the Doctrine of Equivalents. This doctrine protects from someone creating a product that is basically, by all rights, the same product that is protected with just a few modifications.<ref>{{Cite web|title=Doctrine of Equivalents|url=https://www.law.cornell.edu/wex/doctrine_of_equivalents|access-date=2020-12-16|website=LII / Legal Information Institute|language=en|archive-date=2021-01-27|archive-url=https://web.archive.org/web/20210127084335/https://www.law.cornell.edu/wex/doctrine_of_equivalents|url-status=live}}</ref> In some countries, like the United States, there is liability for another two forms of infringement. One is contributory infringement, which is participating in another's infringement. This could be a company helping another company to create a patented product or selling the patented product which is created by another company.<ref>{{Cite web|title=Contributory Infringement|url=https://www.law.cornell.edu/wex/contributory_infringement|access-date=2020-12-16|website=LII / Legal Information Institute|language=en|archive-date=2021-04-18|archive-url=https://web.archive.org/web/20210418131301/https://www.law.cornell.edu/wex/contributory_infringement|url-status=live}}</ref> There is also inducement to infringement, which is when a party induces or assists another party in violating a patent. An example of this would be a company paying another party to create a patented product in order to reduce their competitor's market share.<ref>{{Cite web|title=Inducement of Infringement|url=https://www.law.cornell.edu/wex/inducement_of_infringement|access-date=2020-12-16|website=LII / Legal Information Institute|language=en|archive-date=2020-11-12|archive-url=https://web.archive.org/web/20201112022354/https://www.law.cornell.edu/wex/inducement_of_infringement|url-status=live}}</ref> This is important when it comes to gray market goods, which is when a patent owner sells a product in country A, wherein they have the product patented, then another party buys and sells it, without the owner's permission, in country B, wherein the owner also has a patent for the product. With either national or regional exhaustion being the law the in country B, the owner may still be able to enforce their patent rights; however, if country B has a policy of international exhaustion, then the patent owner will have no legal grounds for enforcing the patent in country B as it was already sold in a different country.<ref>{{Cite journal|last=Halle|first=Mark|title=The Exhaustion of Intellectual Property Rights|url=https://www.iisd.org/system/files/publications/com_exhaustion.pdf|journal=IISD Commentary|via=IISD|access-date=2020-12-16|archive-date=2021-04-22|archive-url=https://web.archive.org/web/20210422011457/https://www.iisd.org/system/files/publications/com_exhaustion.pdf|url-status=live}}</ref>

===Enforcement===
Patents can generally only be enforced through [[Lawsuit|civil lawsuits]] (for example, for a US patent, by an action for patent infringement in a United States federal district court), although some countries (such as [[France]] and [[Austria]]) have criminal penalties for [[wikt:wanton#Adjective|wanton]] infringement.<ref>{{cite web |author=[[DLA Piper]] |year=2005 |title=Patent Litigation across Europe |url=http://cecollect.com/ve/ZZf3096aBBft91T940 |archive-url=https://web.archive.org/web/20071006203134/http://cecollect.com/ve/ZZf3096aBBft91T940 |url-status=dead |archive-date=2007-10-06 |publisher=cecollect.com}}</ref> Typically, the patent owner seeks monetary compensation ([[damages]]) for past infringement, and seeks an [[injunction]] that prohibits the defendant from engaging in future acts of infringement, or seeks either damages or injunction. To prove infringement, the patent owner must establish that the accused infringer practises all the requirements of at least one of the claims of the patent. (In many jurisdictions the scope of the patent may not be limited to what is literally stated in the claims, for example due to the ''[[doctrine of equivalents]]''.)

An accused infringer has the right to challenge the validity of the patent allegedly being infringed in a [[counterclaim]]. A patent can be found invalid on grounds described in the relevant patent laws, which vary between countries. Often, the grounds are a subset of requirements for [[patentability]] in the relevant country. Although an infringer is generally free to rely on any available ground of invalidity (such as a [[Novelty (patent)|prior publication]], for example), some countries have sanctions to prevent the same validity questions being relitigated. An example is the UK [[Certificate of contested validity]].

Patent [[license|licensing agreements]] are [[contract]]s in which the patent owner (the licensor) agrees to grant the licensee the right to make, use, sell, or import the claimed invention, usually in return for a royalty or other compensation.<ref>{{Cite journal|last1=Katz|first1=Michael L.|last2=Shapiro|first2=Carl|date=1985|title=On the Licensing of Innovations|url=https://www.jstor.org/stable/2555509|journal=[[The RAND Journal of Economics]]|volume=16|issue=4|pages=504–520|jstor=2555509|issn=0741-6261|access-date=2022-02-07|archive-date=2022-02-07|archive-url=https://web.archive.org/web/20220207001139/https://www.jstor.org/stable/2555509|url-status=live}}</ref><ref>{{Cite journal|last=Schmitz|first=Patrick W.|date=2002|title=On Monopolistic Licensing Strategies under Asymmetric Information|url=https://mpra.ub.uni-muenchen.de/12532/1/MPRA_paper_12532.pdf|journal=[[Journal of Economic Theory]]|language=en|volume=106|issue=1|pages=177–189|doi=10.1006/jeth.2001.2863|access-date=2022-02-07}}</ref> It is common for companies engaged in complex technical fields to enter into multiple license agreements associated with the production of a single product. Moreover, it is equally common for competitors in such fields to license patents to each other under [[cross-licensing]] agreements in order to share the benefits of using each other's patented inventions. Freedom Licenses like the Apache 2.0 License are a hybrid of copyright/trademark/patent license/contract due to the bundling nature of the three intellectual properties in one central license. This can make it difficult to enforce because patent licenses cannot be granted this way under copyright and would have to be considered a contract.<ref>{{Cite web|title=Problems with Apache license and Others Involving Copyright Uses|url=https://pastebin.com/JkTEyKgc|access-date=2021-08-29|website=Pastebin.com|archive-date=2021-08-29|archive-url=https://web.archive.org/web/20210829204850/https://pastebin.com/JkTEyKgc|url-status=live}}</ref>

===Ownership===
In most countries, both natural persons and corporate entities may apply for a patent. In the United States, however, only the inventor(s) may apply for a patent, although it may be [[assignment (law)|assigned]] to a corporate entity subsequently<ref>{{cite web | title=Assignee (Company) Name | url=http://www.uspto.gov/web/patents/patog/week39/OG/help/help.htm#Assignee%20(Company)%20Name | work=Help Page | publisher=U.S. Patent and Trademark Office (USPTO) | access-date=2007-07-25 | url-status=dead | archive-url=https://web.archive.org/web/20070814113345/http://www.uspto.gov/web/patents/patog/week39/OG/help/help.htm#Assignee%20(Company)%20Name | archive-date=2007-08-14 }}</ref> and inventors may be required to assign inventions to their employers under an employment contract. In most European countries, ownership of an invention may pass from the inventor to their employer by rule of law if the invention was made in the course of the inventor's normal or specifically assigned employment duties, where an invention might reasonably be expected to result from carrying out those duties, or if the inventor had a special obligation to further the interests of the employer's company.<ref>See [http://www.ipo.gov.uk/practice-sec-039.pdf Section 39 of the UK Patents Act] {{webarchive|url=https://web.archive.org/web/20090225004529/http://www.ipo.gov.uk/practice-sec-039.pdf |date=2009-02-25 }} as an example. The laws across Europe vary from country to country but are generally harmonised. In an Australian context, see ''University of Western Australia v Gray'' [2008] FCA 498 [http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/498.html AUSTLII] {{Webarchive|url=https://web.archive.org/web/20230828081819/http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2008/498.html |date=2023-08-28 }}</ref> Applications by artificial intelligence systems, such as [[DABUS]], have been rejected in the US, the UK, and at the European Patent Office on the grounds they are not natural persons.<ref name="sonnemaker">{{cite web |last1=Sonnemaker |first1=Tyler |title=No, an artificial intelligence can't legally invent something – only 'natural persons' can, says US patent office |url=https://www.businessinsider.com/artificial-inteligence-cant-legally-named-inventor-us-patent-office-ruling-2020-4?r=US&IR=T |website=Business Insider |access-date=26 August 2020 |archive-date=3 January 2021 |archive-url=https://web.archive.org/web/20210103075655/https://www.businessinsider.com/artificial-inteligence-cant-legally-named-inventor-us-patent-office-ruling-2020-4?r=US&IR=T |url-status=live }}</ref>
[[File:Ejector seat with patents cropped.jpg|thumb|right|The plate of the Martin [[Ejection seat|ejector seat]] of a military aircraft, stating that the product is covered by multiple patents in the UK, South Africa, Canada and pending in "other" jurisdictions. [[Dübendorf]] Museum of Military Aviation.]]

The inventors, their successors or their assignees become the proprietors of the patent when and if it is granted. If a patent is granted to more than one proprietor, the laws of the country in question and any agreement between the proprietors may affect the extent to which each proprietor can exploit the patent. For example, in some countries, each proprietor may freely license or assign their rights in the patent to another person while the law in other countries prohibits such actions without the permission of the other proprietor(s).

The ability to assign ownership rights increases the [[market liquidity|liquidity]] of a patent as property. Inventors can obtain patents and then sell them to third parties.<ref>[http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm Article 28.2 TRIPs] {{webarchive|url=https://web.archive.org/web/20170622154724/https://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm |date=2017-06-22 }}: "''Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.''".</ref> The third parties then own the patents and have the same rights to prevent others from exploiting the claimed inventions, as if they had originally made the inventions themselves.

===Governing laws===
{{See also|Outline of patents}}

The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Patents are granted by national or regional patent offices,<ref>Staff, World Intellectual Property Organization (WIPO) [http://www.wipo.int/patentscope/en/patents_faq.html#patent FAQ] {{webarchive|url=https://web.archive.org/web/20130225083135/http://www.wipo.int/patentscope/en/patents_faq.html |date=2013-02-25 }}</ref> i.e. national or regional administrative authorities. A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. When a patent application is published, the invention disclosed in the application becomes [[prior art]] and enters the [[public domain]] (if not protected by other patents) in countries where a patent applicant does not seek protection, the application thus generally<!--There might be grace periods in some countries (?)--> becoming prior art against anyone (including the applicant) who might seek patent protection for the invention in those countries.

Commonly, a nation or a group of nations forms a [[patent office]] with responsibility for operating that nation's patent system, within the relevant patent laws. The patent office generally has responsibility for the grant of patents, with infringement being the remit of national courts.

The authority for patent statutes in different countries varies. In the UK, substantive patent law is contained in the Patents Act 1977 as amended.<ref>United Kingdom law requiring no explicit authority due to the [[Supremacy of Parliament]].</ref> In the United States, the [[United States Constitution|Constitution]] empowers [[United States Congress|Congress]] to make laws to "promote the Progress of Science and useful Arts ...". The laws Congress passed are codified in [[Title 35 of the United States Code]] and created the [[United States Patent and Trademark Office]].

There is a trend towards global harmonization of patent laws, with the [[World Trade Organization]] (WTO) being particularly active in this area.<ref>{{Cite web |title=Intellectual property: protection and enforcement |url=https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm |access-date=June 16, 2022 |website=World Trade Organization |archive-date=August 28, 2023 |archive-url=https://web.archive.org/web/20230828081818/https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm |url-status=live }}</ref>{{Primary source inline|date=June 2022}} The [[TRIPS Agreement]] has been largely successful in providing a forum for nations to agree on an aligned set of patent laws. Conformity with the TRIPS agreement is a requirement of admission to the WTO and so compliance is seen by many nations as important. This has also led to many developing nations, which may historically have developed different laws to aid their development, enforcing patents laws in line with global practice.

Internationally, there are international treaty procedures, such as the procedures under the [[European Patent Convention]] (EPC) [constituting the [[European Patent Organisation]] (EPOrg)], that centralize some portion of the filing and examination procedure. Similar arrangements exist among the member states of [[African Regional Intellectual Property Organization|ARIPO]] and [[Organisation Africaine de la Propriété Intellectuelle|OAPI]], the analogous treaties among African countries, and the nine [[Commonwealth of Independent States|CIS]] member states that have formed the [[Eurasian Patent Organization]]. A key international convention relating to patents is the [[Paris Convention for the Protection of Industrial Property]], initially signed in 1883. The Paris Convention sets out a range of basic rules relating to patents, and although the convention does not have direct legal effect in all national jurisdictions, the principles of the convention are incorporated into all notable current patent systems. The Paris Convention set a minimum patent protection of 20 years, but the most significant aspect of the convention is the provision of the right to claim [[priority right|priority]]: filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Another key treaty is the [[Patent Cooperation Treaty]] (PCT), administered by the [[World Intellectual Property Organization]] (WIPO) and covering more than 150 countries. The Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30-month priority for applications as opposed to the standard 12 the Paris Convention granted. A patent application filed under the PCT is called an international application, or PCT application. The steps for PCT applications are as follows:

1. Filing the PCT patent application

2. Examination during the international phase

3. Examination during the national phase.<ref>{{Cite web|title=Chapter 3, International Phase of the PCT Applicant's Guide|url=https://www.wipo.int/pct/en/guide/ip03.html|access-date=2020-12-16|website=www.wipo.int|language=en|archive-date=2021-02-26|archive-url=https://web.archive.org/web/20210226190500/https://www.wipo.int/pct/en/guide/ip03.html|url-status=live}}</ref>

Alongside these international agreements for patents there was the Patent Law Treaty (PLT). This treaty standardized the filing date requirements, standardized the application and forms, allows for electronic communication and filing, and avoids unintentional loss of rights, and simplifies patent office procedures.<ref>{{Cite web|title=Patent Law Treaty (PLT)|url=https://www.wipo.int/treaties/en/ip/plt/index.html|access-date=2020-12-16|website=www.wipo.int|language=en|archive-date=2021-01-19|archive-url=https://web.archive.org/web/20210119191717/https://www.wipo.int/treaties/en/ip/plt/index.html|url-status=live}}</ref>

Sometimes, nations grant others, other than the patent owner, permissions to create a patented product based on different situations that align with public policy or public interest. These may include compulsory licenses, scientific research, and in transit in country.<ref>{{Cite web|title=WTO {{!}} intellectual property – TRIPS and public health: Compulsory licensing of pharmaceuticals and TRIPS|url=https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm#:~:text=What%20is%20compulsory%20licensing?,the%20patent-protected%20invention%20itself.|access-date=2020-12-16|website=www.wto.org|archive-date=2020-12-19|archive-url=https://web.archive.org/web/20201219190408/https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm#:~:text=What%20is%20compulsory%20licensing?,the%20patent-protected%20invention%20itself.|url-status=live}}</ref>

=== Anti-biopiracy dispositions ===
After two decades of drafting,<ref name=":12">{{Cite web |last=Wendland |first=W |date=2022 |title=International negotiations on Indigenous knowledge to resume at WIPO: a view of the journey so far and the way ahead |url=https://www.wipo.int/wipo_magazine_digital/en/2022/article_0001.html |access-date=2022-02-28 |website=[[WIPO]] |language=en}}</ref> the [[World Intellectual Property Organization|WIPO]]'s [[Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore]]<ref name=":2">{{Cite book |last=Muñoz Tellez |first=Viviana |url=https://www.southcentre.int/wp-content/uploads/2024/05/PB129_The-WIPO-Diplomatic-Conference-for-a-Treaty-on-Intellectual-Property-Genetic-Resources-and-Associated-Traditional-Knowledge_EN-1.pdf |title=The WIPO Diplomatic Conference for a Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge |date=2023-03-14 |publisher=[[South Centre (organization)|South Centre]] |edition= |series=Policy Brief Nº. 117 |location=Geneva}}</ref> moved to a Diplomatic Conference in May 2024<ref name=":13">{{Cite web |last=Cannabis Embassy, Commission on Biopiracy |date=2024 |title=WIPO's Diplomatic Conference & New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK): A new Treaty against Biopiracy |url=https://cannabisembassy.org/gratk |access-date=2024-05-26 |website=cannabisembassy.org}}</ref> and adopted the [[WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge]] (GRATK Treaty)'''<ref name=":02">{{Cite book |last=[[WIPO]] |url=https://www.wipo.int/edocs/mdocs/tk/en/gratk_dc/gratk_dc_7.pdf |title=WIPO Treaty on intellectual property, genetic resources and associated traditional knowledge |date=2024-05-24 |publisher=[[WIPO]] |location=Geneva |publication-date=2024 |language=en}}</ref>''' mandating patent disclosure requirements for patents based on [[genetic resources]] and associated [[traditional knowledge]] from being granted.<ref>{{Cite web |date=2024-05-24 |title=Nations agree landmark treaty on traditional knowledge, protecting Indigenous Peoples' rights {{!}} UN News |url=https://news.un.org/en/story/2024/05/1150231 |access-date=2024-05-26 |website=news.un.org |language=en}}</ref> The Treaty contemplates revocation for patents incorrectly filed.<ref>{{Cite web |title=WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge |url=https://www.wipo.int/pressroom/en/articles/2024/article_0007.html |access-date=2024-05-26 |website=www.wipo.int |language=en}}</ref>

The treaty, and in particular its planned extension,<ref name=":13" /> is seen as complementing the [[Nagoya Protocol|Nagoya Protocol to the Convention on Biological Diversity]] and its system of [[Access and Benefit Sharing Agreement|Access and Benefit-Sharing]].<ref>{{Cite web |date=2024-06-13 |title=New treaty addresses intellectual property for genetic resources and traditional knowledge |url=https://www.gisborneherald.co.nz/page/new-treaty-addresses-intellectual-property-for-genetic-resources-and-traditional-knowledge |access-date=2024-07-31 |website=The Gisborne Herald |language=en-AU}}</ref> Representatives of Indigenous peoples view the GRATK Treaty as a "first step towards guaranteeing just and transparent access to these resources."<ref>{{Cite web |last=Indigenous Caucus of the WIPO GRATK Diplomatic Conference |date=2024-05-28 |title=Indigenous Caucus Closing Statement: International Treaty on Intellectual Property, Genetic Resources & Associated Traditional Knowledge; May 24, 2024 |url=https://www.cosmovisioneshealing.org/post/indigenous-caucus-closing-statement-international-treaty-on-genetic-resources-traditional-knowled |access-date=2024-07-31 |website=Cosmovisiones Ancestrales |language=en}}</ref><ref>{{Cite news |date=2024-05-24 |title=Un traité historique qui restaure la dignité des peuples autochtones |url=https://www.letemps.ch/monde/un-traite-historique-qui-restaure-la-dignite-des-peuples-autochtones |access-date=2024-07-31 |work=[[Le Temps]] |language=fr |issn=1423-3967}}</ref>

===Application and prosecution===
{{Main|Patent application|Patent prosecution}}
Before filing for an application, which must be paid for whether a patent is granted or not, a person will want to ensure that their material is patentable. Patentable material must be synthetic, meaning that anything natural cannot be patented. For example, minerals, materials, genes, facts, organisms, and biological processes cannot be patented, but if someone were to apply an inventive, non-obvious, step to them to synthesize something new, the result could be patentable. That includes genetically engineered strains of bacteria, as was decided in Diamond v. Chakrabarty.<ref>{{Cite web |title=Diamond ''v.'' Chakrabarty |url=https://www.oyez.org/cases/1979/79-136 |access-date=2020-12-16 |website=[[Oyez Project|Oyez]] |publisher=[[Chicago-Kent College of Law]] |language=en |archive-date=2021-01-02 |archive-url=https://web.archive.org/web/20210102121727/https://www.oyez.org/cases/1979/79-136 |url-status=live }}</ref> Patentability also depends on public policy and ethical standards.<ref>{{Cite web|title=Bioethics and Patent Law: The Case of the Oncomouse|url=https://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html|access-date=2020-12-16|website=www.wipo.int|language=en|archive-date=2020-12-11|archive-url=https://web.archive.org/web/20201211092539/https://www.wipo.int/wipo_magazine/en/2006/03/article_0006.html|url-status=live}}</ref> Additionally, patentable materials must be novel, useful, and a non-obvious inventive step.<ref>{{Cite web|title=Patent Requirements (BitLaw)|url=https://www.bitlaw.com/patent/requirements.html|access-date=2020-12-16|website=www.bitlaw.com|archive-date=2020-11-11|archive-url=https://web.archive.org/web/20201111211803/https://www.bitlaw.com/patent/requirements.html|url-status=live}}</ref>
[[File:Patent Applications.svg|thumb|Patent applications filed at the world's major patent offices from 1980 to 2021.]]

A patent is requested by filing a written [[Patent application|application]] at the relevant patent office. The person or company filing the application is referred to as "the applicant". The applicant may be the inventor or its assignee. The application contains a description of how to make and use the invention that must provide [[sufficiency of disclosure|sufficient detail]] for a person skilled in the art (i.e., the relevant area of technology) to make and use the invention. In some countries there are requirements for providing specific information such as the usefulness of the invention, the [[Sufficiency of disclosure|best mode]] of performing the invention known to the inventor, or the technical problem or problems solved by the invention. Drawings illustrating the invention may also be provided.

The application also includes one or more [[Patent claim|claims]] that define what a patent covers or the "scope of protection".

After filing, an application is often referred to as "[[patent pending]]". While this term does not confer legal protection, and a patent cannot be enforced until granted, it serves to provide warning to potential infringers that if the patent is issued, they may be liable for damages.<ref>{{cite web|url=http://www.ipaustralia.gov.au/media/pages/whatis/patents.htm|title=What does 'patent pending' mean?|archive-url=https://web.archive.org/web/20110829120240/http://www.ipaustralia.gov.au/media/pages/whatis/patents.htm|archive-date=29 August 2011}}</ref><ref>USPTO web site, [http://www.uspto.gov/web/offices/pac/doc/general/patpend.htm ''Patent Marking and "Patent Pending"'' (Excerpted from General Information Concerning Patents print brochure)] {{webarchive|url=https://web.archive.org/web/20090802035958/http://www.uspto.gov/web/offices/pac/doc/general/patpend.htm |date=2009-08-02 }}, Consulted on August 5, 2009.</ref><ref>[[UK Intellectual Property Office]] web site, [http://www.ipo.gov.uk/types/patent/p-manage/p-useenforce/p-displayrights.htm ''Display your rights''] {{webarchive|url=https://web.archive.org/web/20090903125501/http://www.ipo.gov.uk/types/patent/p-manage/p-useenforce/p-displayrights.htm |date=2009-09-03 }}, (under "IPO Home> Types of IP> Patents> Managing your patents> Using and enforcing") Consulted on August 5, 2009.</ref>

Once filed, a patent application is [[Patent prosecution|"prosecuted"]]. A [[patent examiner]] reviews the patent application to determine if it meets the [[patentability]] requirements of that country. If the application does not comply, objections are communicated to the applicant or their [[patent attorney|patent agent or attorney]] through an [[Office action]], to which the applicant may respond. The number of Office actions and responses that may occur vary from country to country, but eventually a final rejection is sent by the patent office, or the patent application is granted, which after the payment of additional fees, leads to an issued, enforceable patent. In some jurisdictions, there are opportunities for third parties to bring an [[opposition proceeding]] between grant and issuance, or post-issuance.

Once granted the patent is subject in most countries to [[maintenance fee (patent)|renewal fees]] to keep the patent in force. These fees are generally payable on a yearly basis. Some countries or regional patent offices (e.g. the [[European Patent Office]]) also require annual renewal fees to be paid for a patent application before it is granted. In the US, patent maintenance fees are due on 3.5, 7.5 and 11.5 anniversaries of the patent issuance.<ref>{{cite web | url=https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule#Patent%20Maintenance%20Fee | title=USPTO fee schedule | date=8 March 2023 }}</ref> Only ca. 50% of issued US patents are maintained full term. Large corporations tend to pay maintenance fees through the full term, while small companies are more likely to abandon their patents earlier, even though the due fees are ca. 5 times lower for small businesses (microentities).<ref>Twenty years of US nanopatenting: Maintenance renewal scoring as an indicator of patent value. 2023. World Pat Inf. 73/. A.L. Porter, M. Markley, R. Snead, N.C. Newman. doi: 10.1016/j.wpi.2023.102178.</ref> 

====Costs====
The costs of preparing and filing a patent application, prosecuting it until grant and maintaining the patent vary from one jurisdiction to another, and may also be dependent upon the type and complexity of the invention, and on the type of patent.

The European Patent Office estimated in 2005 that the average cost of obtaining a European patent (via a Euro-direct application, i.e. not based on a PCT application) and maintaining the patent for a 10-year term was around €32,000.<ref>With the following assumptions: "18 pages (11 pages description, 3 pages claims, 4 pages drawings), 10 claims, patent validated in 6 countries (Germany, United Kingdom, France, Italy, Spain, Switzerland), excl. in-house preparation costs for the patentee" (the costs relate to European patents granted in 2002/2003), in European Patent Office, [http://www.european-patent-office.org/epo/new/cost_analysis_2005_en.pdf ''The cost of a sample European patent – new estimates''] {{webarchive|url=https://web.archive.org/web/20080527201548/http://www.european-patent-office.org/epo/new/cost_analysis_2005_en.pdf |date=2008-05-27 }}, 2005, p.&nbsp;1.</ref> Since the [[London Agreement (2000)|London Agreement]] entered into force on May 1, 2008, this estimation is however no longer up-to-date, since fewer translations are required.

After a patent is issued, in most countries patent maintenance payments are required. In some countries (e.g. Russia) fees are due every year, and the amount due does not change much. In other countries (e.g. US) payments are due ca. every 4th year after the grant date, and the amount due increases every time. A 2023 study by [[Rochester Institute of Technology]] found the full term maintenance rate of issued US patents has been fairly constant (40-50%) since 1992. Full term patents have more issued claims and receive on average more citations than earlier expired patents.<ref>The persistence of worthless patents? 2023. World Pat Inf. 72/. A. Schwall, J. Wagner. doi: 10.1016/j.wpi.2023.102179.</ref>

The [[European Patent Office]] charges annual fees for pending applications. Also, between 2012 and 2016 [[Ecuador]] increased its patent maintenance fees ten-fold, briefly becoming the most expensive country to maintain patents.<ref>{{cite web | url=https://www.mondaq.com/patent/524436/ecuador-reversed-the-increase-of-its-patent-fees-decreases-it-by-90 | title=Ecuador Reversed the Increase of Its Patent Fees: Decreases It by 90% – Patent – Ecuador}}</ref>

In the United States, in 2000 the cost of obtaining a patent ([[patent prosecution]]) was estimated to be from $10,000 to $30,000 per patent.<ref name="lemley">{{cite journal | last1 = Lemley | first1 = Mark A | year = 2001 | title = Rational Ignorance at the Patent Office | url = https://escholarship.org/content/qt1tc166q2/qt1tc166q2.pdf?t=lnp2qz | journal = Northwestern University Law Review | volume = 95 | issue = 4 | doi = 10.2139/ssrn.261400 | s2cid = 154339316 | access-date = 2020-09-02 }}</ref> When patent litigation is involved (which in year 1999 happened in about 1,600 cases compared to 153,000 patents issued in the same year<ref name="lemley" />), costs increase significantly: although 95% of patent litigation cases are settled [[Settlement (litigation)|out of court]],<ref>{{cite web|url=http://www.hblaw.org/articles-reader/items/carry-a-big-stick.html|title=Holland & Bonzagni a full Service IP Law Firm in Western Massachusetts |website=www.hblaw.org|access-date=4 May 2018|url-status=live|archive-url=https://web.archive.org/web/20160414072237/http://www.hblaw.org/articles-reader/items/carry-a-big-stick.html|archive-date=14 April 2016}}</ref> those that reach the courts have legal costs on the order of a million dollars per case, not including associated business costs.<ref>{{cite book
|title=Patent failure: how judges, bureaucrats, and lawyers put innovators at risk
|url=https://archive.org/details/patentfailurehow00bess
|url-access=limited
|last1=Bessen
|first1=James
|last2=Meurer
|first2=Michael James
|year=2008
|page=[https://archive.org/details/patentfailurehow00bess/page/n146 132]
|publisher=Princeton University Press
|isbn=978-0691134918
}}. Based on an [[American Intellectual Property Law Association]] (AIPLA) survey of patent lawyers (2005), and court documents for a sample of 89 court cases where one side was ordered to pay the other side's legal fees. The containing chapter ('The Costs of Disputes') also tries to quantify associated business costs.</ref>

====Non-national treatment in the application procedure====
{{One source section|date=January 2022}}
Non-national treatments in national patent offices had been prevalent among the Northern countries{{Citation needed|date=January 2022}} until they were prohibited after the negotiation of the [[Paris Convention for the Protection of Industrial Property]]. According to Articles 2 and 3 of this treaty, juristic and natural persons who are either national of or domiciled in a state party to the Convention shall, as regards the protection of industrial property, enjoy in all the other countries of the Union, the advantages that their respective laws grant to nationals.

In addition, the [[TRIPS Agreement]] explicitly prohibits any such discrimination. TRIPS Agreement Article 27.1 states that 'patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced'.

===Alternatives===
A [[defensive publication]] is the act of publishing a detailed description of a new invention without patenting it, so as to establish [[prior art]] and public identification as the creator/originator of an invention, although a defensive publication can also be anonymous. A defensive publication prevents others from later being able to patent the invention.

A [[trade secret]] is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by [[non-disclosure agreement]] and [[labour law]], each of which prevents information leaks such as [[Breach of confidence|breaches of confidentiality]] and [[industrial espionage]]. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public,<ref name="klinkert-6">{{cite conference |url=http://www.miplc.de/research/lecture-series/ |title=The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid |first=Friedrich |last=Klinkert |date=April 2012 |conference=[[Munich Intellectual Property Law Center|MIPLC]] Lecture Series |access-date=May 6, 2012 |page=6 |url-status=live |archive-url=https://web.archive.org/web/20120608121247/http://www.miplc.de/research/lecture-series/ |archive-date=June 8, 2012 }}</ref> whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork;<ref name="klinkert-6"/> has an immediate effect;<ref name="klinkert-6"/> and does not require any disclosure of information to the public.<ref name="klinkert-6"/> The key disadvantage of a trade secret is its vulnerability to [[reverse engineering]].<ref name="klinkert-7">{{cite conference |url=http://www.miplc.de/research/lecture-series/ |title=The Misappropriation of Trade Secrets in Germany and U.S. Discovery Aid |first=Friedrich |last=Klinkert |date=April 2012 |conference=[[Munich Intellectual Property Law Center|MIPLC]] Lecture Series |access-date=May 6, 2012 |page=7 |url-status=live |archive-url=https://web.archive.org/web/20120608121247/http://www.miplc.de/research/lecture-series/ |archive-date=June 8, 2012 }}</ref>