Why patents are important This paper was originally presented at the 28th International Aerosol Congress & 17th Exhibition by ZBM’s Mathieu de Rooij. At the end of the 19th century, the emperor of Japan asked one of his close aides to visit the U.S. for the purpose of understanding why the level of innovation was so high in this country. His aide, after returning from his trip, summed up his conclusions with one word: Patents! As the legend goes, the Japanese patent office was formed and a corresponding law for protecting inventions was established in Japan. From then on, Japan was to be included among industrialized nations. The above legend may be historical fact or pure myth. However, what has been proven a fact over the years is that most successful and sustainable innovation models, applied either in private organizations or in whole nations, include patents in their core. It is an internationally recognized way to protect the results of R&D that is distinct and complementary to other forms of protection of intellectual property, along with copyright, trademarks and industrial designs. Trademarks aim to help identify a product or service from those of others by protecting a recognizable sign, design or expression. Industrial designs allow for the protection of the visual design of an object, be it its color, its shape, its form or a combination thereof. However, only patents allow for the protection of the functional aspects of an invention. In other words, patents allow for the protection of inventions either in the form of physical entities, such as products or machines, or in the form of activities, such as methods or uses, provided that the aforementioned inventions contribute to the solution of a technical problem. A combination of intellectual property types may allow for a complete protection of a product. For example, a canister spray may have its valve protected by a patent, its shape by an industrial design and its name or logo by a trademark, etc. Why are patents so significant? The simple answer is that patents allow for a twenty year protection of revenue for ideas that are created today. Therefore, for a company having only one inventor with a bright idea, this could secure recurring revenue from all around the world just with one patent application filed. It is, however, a fact that many companies, inventors, research centers or universities do not benefit from their investment in research because of an inexistent patent strategy. Furthermore, even organizations and individuals who have invested in patents do not fully benefit from their investment. This is because there is a misperception of patents as a distraction or simply as a non-core business initiative that may have only marginal influence in the economics of one’s business. This misperception could not be more damaging today, when a globalized economy allows for the conception of a product in one country, its production in a second and its commercialization in a number of countries, making patents possibly the only way to avoid 20 Spray February 2015 or prosecute copycats and imitators. Patents, contrary to popular belief, are not tools to be used as passive protectors, just in case someone attacks with similar products. They are to be used as threatening instruments against infringing perpetrators. Common misinterpretations Perhaps the most common misunderstanding about patents is that they give one a right to commercialize one’s invention and thus serve as a shield. On the contrary, a patent does not give the right to commercially exploit an invention. For example, a granted patent does not overcome any legal restrictions, if the exploitation of an invention may violate a law in a certain country, state or territory. Very importantly, an invention may still infringe upon previous patents, even if it is accorded its own legitimate patent. A patent is a right to prohibit others from exploiting the invention. This prohibition from exploitation implies a prohibition to sell, offer for sale, use, produce or import the invention without a license to do so. In order for the inventor to benefit from this right, there is a duty to disclose the invention to the public. Since a patent is territorial, the inventor may benefit from the rights only in those countries in which the patent is granted. However, it should be noted that the grant of a patent does not guarantee its validity. That means that even if an invention has been worthy of a granted patent, which implies that it has been considered new and inventive, it may still infringe upon the rights of previous patents. For example, a patent for a method and apparatus for atomizing material was granted in 1933 to Erik Rotheim of Oslo, Norway, who is considered the inventor of the first aerosol spray. During the next 20 years, his original idea was improved upon by a number of inventors who rightfully obtained
Spray Feb 2015
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