Get answers to your questions regarding patents and the patent application process

Over time, we have had many questions asked about patents and patent applications.

We have gathered these frequently asked questions so you can get answers regarding the differences between patents and trademarks, how often a patent should be renewed and whether it is best to seek protection in Denmark or abroad.

If you have further questions, please give us a call or send us an email.

What is a patent?

A patent gives you the right to prevent others from using your invention; a right that you can use for 20 years, counting from the date of filing, to ensure that others do not misappropriate your idea and benefit from it.

It is not necessary that all the technologies used in your product are new for an invention to be patentable: Even a small new part of your product or a new step in an existing process can result in a valuable invention.

However, in order to obtain a patent, there are three requirements, which must all be met:

1. The invention must be new

2. The invention must be inventive

3. The invention must have at least one industrial application

 

What is the difference between a patent and a trademark?

Generally, you need to apply for a patent if you want to earn the right to protect your unique inventive technology, while a trademark provides protection for your brand identifier - such as a name or a logo - that is unique to your product.

Less ground-breaking inventions can be difficult to patent. This, however, does not mean you should give up on the idea of seeking protection too soon: When obtaining a patent is not possible, it may nonetheless be possible to successfully apply for a utility model or design protection.

Do you need to discuss your options? Give us a call or send us an email.

How should I apply for a patent?

A good place to start is the Patent and Trademark Office's patent database, where you can check if your idea already exists as a patent. If it does not, the next step is to submit an online patent application to a patent and trademark office, such as the Danish Patent and Trademark Office or the European Patent Office.

Make sure you apply for a patent as soon as possible and at least before you are ready to publish, market or disclose your product. It can take between one and six years from the time the application is filed for the patent to be issued.

On the other hand, it can be best to wait with filling a patent application until the invention is completed and you have considered all possible uses and variations.

The optimal time for filing a patent application is therefore a balance between these considerations.

We know applying for a patent can be a complex process; that’s why we are here to help when you need advice.

Can you apply for a patent on a name, idea or design?

In order to obtain a patent you must describe your invention in enough detail to enable the invention to be practised. So in order to patent an idea, you must describe how the idea is turned into practical use. Names and designs, however, are not patentable but can be protected as trademarks and design registrations, respectively. Patents are used to protect functioning products, compositions, appliances, processes and uses.

Get answers to questions about applying for a patent, securing trademark protection and obtaining design protection here, or contact one of our consultants for a chat about the possibilities of patenting your invention.

Should I apply for a patent in Denmark or abroad?

The protection of your invention is limited geographically to the country in which you are applying for a patent. This means that you have to apply for a patent on your invention in all the countries you want the patent to cover - think of country where the business is registered, manufacturing country, and countries where your invention is to be marketed and sold.

Some prefer to apply for a patent in Denmark first for cost reasons. If your company is already planning on expanding sales in other countries or on producing products abroad, it's time to become more strategic with your patents and trademarks.

Read more about the application process when applying for a patent in Denmark, the EU and internationally.

Should I use a patent attorney?

You do not need a patent attorney if you live in, or your principal place of business is in Denmark or some other EPC-contracting state, unless you need to defend the rights to your invention in court. You may, however, need to talk to a patent consultant about the strategic considerations for your patented inventions.

We always have good advice to share. Question one of our consultants by reaching out by phone or email.

Patent or trade secret?

When applying for a patent, your knowledge is at some point made available to the public. Therefore, if your invention comprises business-critical knowledge that has not already been made public, the best strategic solution could be not to patent the invention.

This was the route chosen, for example, by Coca-Cola with its original recipe, which is still today a well-kept business secret.

We can advise on dealing with trade secrets. Reach out to one of our consultants.

What consideration must be given to existing patents?

All companies need to ask themselves whether the exploitation of their technology is infringing the rights of others. A patent search can clarify whether there are granted patents or filed applications that may give rise to conflict.

If such a search uncovers patents or applications that may constitute pre-existing rights, a deeper analysis, often called a Freedom-to-operate analysis, should be conducted to determine whether the technology falls within the existing scope of protection.

Such a patent analysis covers the claims, the legal status of the application or patent and the countries covered. If it is a patent application, the analysis can also assess how likely it is that the patent will be granted. The analysis should be carried out by an experienced patent consultant with knowledge of practice in the relevant countries.

What is a Freedom-to-Operate analysis?

An FTO is a process that consists of both patent searching and patent analysis to uncover any rights that conflict with the product or method under consideration. Before launching a new product, it is good practice to conduct an FTO analysis to ensure that the new product does not infringe on the patents of others.

Some choose to conduct an FTO analysis early to save development costs. This could mean that your analysis requires an update when the product is ready for launch. Others choose to perform an analysis late in the process so that the final product can be checked. An FTO cannot be definitively closed until all product choices have been made.

We recommend conducting an FTO analysis before launching a new product. Whether it should be done at an early stage, or only when the product is completely finished depends on the circumstances and nature of the product. Our consultants are happy to advise you on the matter.

What to do about problematic patent rights?

If an analysis uncovers problematic rights for current or contemplated products or activities, various courses of action may be considered.

For example, it is possible to submit arguments in support of that a patent application should not be granted in a particular country. A process for invalidating or limiting a granted patent is also an option. Alternatively, a change in the product may be desirable to circumvent the existing rights or applying for a license may be the best way forward.

There are no guarantees that the situation can be solved in one of these ways; choosing the right measure will depend on the wording of the patent and the particular business circumstances. We therefore recommend that the decision be made in dialogue with experienced patent counsel.

 

What affects the cost of a patent?

The cost of a patent application depends on the time spent on completing the application and in how many countries you wish to apply for a patent.

We usually recommend starting the application process in Denmark or in European countries – by filing a so-called EP patent application - and continue the application internationally via the PCT system (the International Patent System), once the first application is accepted. But it is also possible to submit national applications in selected countries only.

Contact one of our patent attorneys or patent counsels for advice on the strategy for your patents and get a non-binding offer.

Does a patent require the payment of annuities?

Yes, in some situations as soon as at the end of the second year after filing, a patent application must be renewed annually by paying a renewal fee. We can help by making sure payments occur automatically.

Once patent protection expires in a specific country, the invention can be freely exploited in that area. This means that you can freely develop, commercialise and make other people's previous patent-protected ideas a part of your business.

Most people choose to stop the renewal when it no longer offers commercial or strategic value. But  the option of selling the patent also exists if you no longer wish to use your patent commercially.

Do you need your patent portfolio to be checked? Get in touch with one of our patent attorneys.

Do you need some strategic advice?

Talk to one of our consultants; they will assess the possibilities of your invention and will ask you the business-relevant questions.

Together we will build the protection that best suits you and your business. And remember, the first meeting is free of charge.