---
title: "What you don’t know about patents"
canonical_url: "https://www.smoltek.com/what-you-dont-know-about-patents/7005/"
date: 2024-03-19
author: "Thomas Barregren"
featured_image: "https://www.smoltek.com/wp-content/uploads/2024/03/patent-6.webp"
categories:
  - name: "IR Blog Posts"
    url: "https://www.smoltek.com/category/ir-blog-posts.md"
tags:
  - name: "patent"
    url: "https://www.smoltek.com/topic/patent.md"
---

# What you don’t know about patents

If you’ve been fol­low­ing the Smoltek news feed, you’ll know that we are apply­ing for patents in spades. This is nat­ur­al; the patents give us time to mon­e­tize the cut­ting-edge tech­nol­o­gy we have devel­oped with your investment.

We have patent­ed 17 inven­tions and have pend­ing appli­ca­tions for anoth­er four. The inven­tions are patent­ed in the EU, the US, and many oth­er coun­tries. At the time of writ­ing, we have 89 approved patents and more than 20 pend­ing patent applications.

Every patent appli­ca­tion requires a lot of work, both before the appli­ca­tion is filed and when the patent is pend­ing, as well as after­ward. Let’s take a clos­er look at what is required to apply for a patent and how it works.

## [](https://www.smoltek.com#requirements)Requirements

To patent an inven­tion, it gen­er­al­ly needs to meet the fol­low­ing for­mal requirements:

- **Nov­el­ty:** The inven­tion must not have been pre­vi­ous­ly known. An inven­tion can­not be patent­ed if it has been made known pri­or to the appli­ca­tion, for exam­ple, by the inven­tors themselves.
- **Inven­tive step:** The inven­tion must be sub­stan­tial­ly dif­fer­ent from any­thing pre­vi­ous­ly known and must not be obvi­ous to any­one with knowl­edge and expe­ri­ence in the field.
- **Indus­tri­al applic­a­bil­i­ty:** The inven­tion must be capa­ble of being man­u­fac­tured or per­formed in some sort of indus­tri­al way. Indus­tri­al­iza­tion in this con­text has a much broad­er mean­ing than usu­al and also includes activ­i­ties such as trans­porta­tion, agri­cul­ture, hunt­ing, pub­lic admin­is­tra­tion, and health care.
- **Sub­ject mat­ter eli­gi­bil­i­ty:** The inven­tion must be patentable.

The last require­ment needs some fur­ther explanation.

## [](https://www.smoltek.com#whats-patentable)What’s patentable?

You can­not patent an idea, a sci­en­tif­ic dis­cov­ery or the­o­ry, a math­e­mat­i­cal method, a pro­gram for com­put­ers, an artis­tic cre­ation, a pre­sen­ta­tion of infor­ma­tion, or schemes, rules, and meth­ods for per­form­ing men­tal acts, play­ing games, or doing business.

An inven­tion must be tech­ni­cal in nature to be patentable. This means that the claims must fall into one or more of the fol­low­ing categories:

- **Process:** These claims refer to steps in a process or method.
- **Appa­ra­tus:** These claims refer to the struc­tur­al or func­tion­al aspects of an appa­ra­tus or device.
- **Man­u­fac­ture:** These claims are con­cerned with how an item is made and what it is made of.
- **Com­po­si­tion of Mat­ter:** These claims cov­er chem­i­cal com­po­si­tions and compounds.

![Patent 1](https://www.smoltek.com/wp-content/uploads/2024/03/patent-1-900x514.webp)

First attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.

## [](https://www.smoltek.com#patent-application)Patent application

To apply for a patent, an appli­ca­tion must be filed with a nation­al patent office.

An appli­ca­tion must meet sev­er­al for­mal require­ments. In par­tic­u­lar, it must con­sist of the fol­low­ing elements:

- **Abstract:** A sum­ma­ry of the tech­ni­cal con­tent so that inter­est­ed par­ties can eas­i­ly under­stand the inven­tion’s purpose.
- **Descrip­tion:** Instruc­tions suf­fi­cient­ly detailed to enable a per­son knowl­edge­able in the field to apply the invention.
- **Claims:** A set of legal claims about what the patent will pro­tect. Each claim should belong to one or more of the cat­e­gories described above.
- **Draw­ings:** Any draw­ings and fig­ures nec­es­sary to explain the inven­tion and the claims.

The claims are the most crit­i­cal part of the appli­ca­tion. They should be as broad and gen­er­al as pos­si­ble to pro­vide good pro­tec­tion while being clear, con­cise, and sup­port­ed by the descrip­tion. They serve as the basis for deter­min­ing whether an inven­tion infringes the patent and are crit­i­cal­ly ana­lyzed dur­ing the patent exam­i­na­tion process.

## [](https://www.smoltek.com#patent-pending)Patent pending

Once the appli­ca­tion is filed, the legal terms “patent pend­ing” and “patent applied for” can be used to dis­cour­age oth­ers from copy­ing the invention.

The mark­ing informs oth­ers that an appli­ca­tion has been filed, and they may be liable for infringe­ment once the patent has been grant­ed. How­ev­er, there is no enforce­able right until the patent is actu­al­ly issued. 

## [](https://www.smoltek.com#the-long-journey-of-the-patent-application)The long journey of the patent application

It takes years from the moment the appli­ca­tion is sub­mit­ted until it is grant­ed (or reject­ed). It’s not a quick process because it is thor­ough. It has to be. The result is a restric­tion on the rights of oth­ers, and thus, the gov­ern­ment wants to be on the safe side that it is justified.

When the patent office receives an appli­ca­tion, a for­mal exam­i­na­tion begins. An offi­cer checks that the appli­ca­tion meets all for­mal requirements.

## [](https://www.smoltek.com#investigation-far-and-wide)Investigation far and wide

Once the for­mal exam­i­na­tion is com­plete, the tech­ni­cal exam­i­na­tion begins. A patent exam­in­er reviews the appli­ca­tion, check­ing that every­thing need­ed to grant a patent is in place. They also search glob­al data­bas­es to ensure that no sim­i­lar inven­tions are pub­lished. If the patent exam­in­er finds obsta­cles to grant­i­ng the appli­ca­tion, the appli­cant receives a tech­ni­cal notice. The appli­cant can respond if they dis­agree with the patent examiner.

The appli­ca­tion becomes pub­lic when the patent is grant­ed or after 18 months from the fil­ing date if it has not been with­drawn before then. At that point, the recipe for the secret sauce becomes pub­lic. So, if one is not absolute­ly sure about being grant­ed the patent, it may be appro­pri­ate to with­draw the appli­ca­tion to keep the inven­tion secret.

![Patent 2](https://www.smoltek.com/wp-content/uploads/2024/03/patent-2-900x514.webp)

Sec­ond attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.

## [](https://www.smoltek.com#communication-ping-pong)Communication ping-pong

If the patent office con­cludes that your appli­ca­tion’s require­ments are patentable and that there are good chances to issue a patent, the appli­cant receives a final notice. Then, the appli­cant can make minor changes, such as cor­rect­ing spelling errors.

Now comes a noti­fi­ca­tion that the patent office will “issue the patent.” This is the very last chance to with­draw the application.

Final­ly, the patent office announces that the patent has been granted.

Now every­thing is peace and joy. Or is it?

Of course, it’s not. All com­peti­tors and oth­er trou­ble­some char­ac­ters have nine months to object to the patent. Nat­u­ral­ly, the patent hold­er can con­test the objec­tion. If the patent office accepts the objec­tion, the patent can either be revoked or amended.

## [](https://www.smoltek.com#what-are-the-alternatives)What are the alternatives?

Apply­ing for a patent requires a lot of work, takes quite some time, and costs a fair amount of mon­ey. Are there no more straight­for­ward and cheap­er alternatives?

Sure, there are.

For starters, you can just shut up. Keep your inven­tion to your­self. Don’t reveal your secret sauce. As a result, your inven­tion enjoys a cer­tain legal pro­tec­tion as it is con­sid­ered a trade secret. If some­one leaks the trade secret, they may be guilty of a breach of con­fi­den­tial­i­ty or cor­po­rate espionage.

One advan­tage over patents is that your secret remains secret, and anoth­er is that no one can freely copy it after twen­ty years. On the oth­er hand, there is noth­ing to stop a com­peti­tor from reverse engi­neer­ing your prod­ucts to find out your secret and then using it themselves.

Anoth­er solu­tion is defen­sive publishing.

## [](https://www.smoltek.com#defensive-publishing)Defensive publishing

One dis­ad­van­tage of keep­ing your inven­tion secret is that some­one else may come up with some­thing sim­i­lar and apply for a patent. Sud­den­ly, you are infring­ing their patent – even if you have made your inven­tion entire­ly on your own and per­haps even long before them.

To pre­vent that from hap­pen­ing, you can pub­lish a detailed descrip­tion of your inven­tion. This makes it impos­si­ble for oth­ers to apply for a patent on the inven­tion, as it is already known. This is called defen­sive pub­lish­ing because it is a pub­li­ca­tion that defends you against the very pos­si­bil­i­ty of some­one else patent­ing the idea in the future.

An obvi­ous dis­ad­van­tage is that your secret does not remain secret. Any­one is free to use your inven­tion. More­over, you have made it impos­si­ble for your­self to apply for a patent in the future, as it is already known.

![Patent 3](https://www.smoltek.com/wp-content/uploads/2024/03/patent-3-900x514.webp)

Third attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.

## [](https://www.smoltek.com#world-patent)World patent

Giv­en the options, patents are not so bad after all. So, you decide to go through all the hoops to get a patent grant­ed. Con­grat­u­la­tions! Your inven­tion is now protected.

There is only one catch. The patent is only valid in coun­tries where you have been grant­ed it. In the rest of the world, any­one can copy your inven­tion, which is now pub­lished and pub­licly avail­able. Darn!

Unfor­tu­nate­ly, there is no world patent or even a Euro­pean patent. Sure, many peo­ple talk about them as if they exist, but they do not. What exists is the pos­si­bil­i­ty of apply­ing in sev­er­al coun­tries at the same time. But in the end, each coun­try’s patent office has to approve the patent, and you have to pay fees for all of them.

## [](https://www.smoltek.com#the-urgency-of-international-patents)The urgency of international patents

You need to know if you want to apply for a patent out­side your own coun­try almost from the start, as inter­na­tion­al patent appli­ca­tions must be filed with­in 18 months. Guess why!

You are absolute­ly right. After 18 months, your nation­al appli­ca­tion is pub­lished, mak­ing your inven­tion unpatentable. Remem­ber the nov­el­ty require­ment? There­fore, all inter­na­tion­al appli­ca­tions must be sub­mit­ted before that date.

## [](https://www.smoltek.com#closing-the-loopholes)Closing the loopholes

In the peri­od between the first appli­ca­tion and the receipt of the inter­na­tion­al appli­ca­tions, some­one else may come up with the same inven­tion and apply for a patent in their coun­try. If this hap­pens before your appli­ca­tion is pub­lished, i.e. with­in the first 18 months, the nov­el­ty require­ment is met. As a result, your appli­ca­tion will be refused.

To close this loop­hole, the appli­ca­tion must be filed even ear­li­er, with­in 12 months of the nation­al appli­ca­tion. Then, the date of the first appli­ca­tion also counts as the date of the sub­se­quent ones under the Paris Con­ven­tion of 1883.

## [](https://www.smoltek.com#last-deadline)Last deadline

A final dead­line to keep an eye on is 30 months after the first appli­ca­tion. This is the time­frame with­in which inter­na­tion­al appli­ca­tions must be completed.

So the process is that you first apply for a nation­al patent, then start the inter­na­tion­al appli­ca­tion with­in 12 months, and com­plete the inter­na­tion­al appli­ca­tion with­in 30 months.

In between, you will hope­ful­ly have been informed whether the nation­al patent has been approved, which indi­cates that the inter­na­tion­al appli­ca­tions will prob­a­bly be approved as well. But, again, each nation’s patent office makes its own deci­sions, so noth­ing is cer­tain until it is certain.

## [](https://www.smoltek.com#need-of-patent-agency)Need of patent agency

As you can imag­ine, apply­ing for a patent is not easy. There is a lot to keep track of. Get it wrong, and you’re screwed. That’s why we hire a patent agency to help us with this, even though we do a lot of the work ourselves.

![Patent 4](https://www.smoltek.com/wp-content/uploads/2024/03/patent-4-900x514.webp)

Fourth attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.

## [](https://www.smoltek.com#patent-families)Patent families

Every patent­ed inven­tion has a first patent, the one that was first applied for, and then sev­er­al inter­na­tion­al patents, all relat­ing to pre­cise­ly the same inven­tion. These are col­lec­tive­ly known as a *patent fam­i­ly*.

Cur­rent­ly, Smoltek has 89 grant­ed patents across [17 patent fam­i­lies](https://www.smoltek.com/patents/). We have anoth­er 4 patent fam­i­lies in the mak­ing and about 20 pend­ing patents. New patent fam­i­lies are added reg­u­lar­ly, and with them come many patents over sev­er­al years.

## [](https://www.smoltek.com#not-what-you-think)Not what you think

I’m glad to see that you’ve stuck around until now. I guess it’s because my cliffhang­er at the begin­ning is work­ing. You are dying to know why it is not true that a patent gives the hold­er the right to make, use, and sell an invention. 

If you con­sid­er the fol­low­ing two exam­ples, you will see that it is pret­ty logical:

- Being grant­ed a patent for a new type of med­i­cine does not auto­mat­i­cal­ly give you the right to man­u­fac­ture, use, or sell the med­i­cine. Even if the med­i­cine rep­re­sents an inno­v­a­tive treat­ment, it must first under­go exten­sive clin­i­cal tri­als and be approved by drug reg­u­la­to­ry author­i­ties before it can be made avail­able to the pub­lic. This step is cru­cial to ensure that the med­i­cine is safe and effec­tive for its intend­ed use.
- Being grant­ed a patent for an inno­v­a­tive improve­ment to the design of an appa­ra­tus already patent­ed by some­one else does not auto­mat­i­cal­ly give you the right to make, use, and sell the improved appa­ra­tus. While your improve­ment may be sig­nif­i­cant, you still need per­mis­sion from the hold­er of the orig­i­nal patent to exer­cise the rights of the under­ly­ing appa­ra­tus, as the orig­i­nal design is still pro­tect­ed under their patent.

Now you under­stand why a patent does not con­fer the right to make, use, and sell an inven­tion, right?

## [](https://www.smoltek.com#patent-rights)Patent rights

So, what is a patent?

It is essen­tial­ly a right to *restrict oth­ers* from mak­ing, using, and sell­ing an invention.

It does­n’t just sound crazy, it is crazy. Or…? If you pon­der the fol­low­ing two exam­ples, it may not seem as far-fetched as it first appears.

- After long and cost­ly research, you have devel­oped a rev­o­lu­tion­ary med­i­cine, but you don’t have the mon­ey or skills to build your own pill fac­to­ry. If you want a phar­ma­ceu­ti­cal com­pa­ny to pro­duce your med­i­cine, you have to share the for­mu­la. With­out the right to restrict oth­ers from mak­ing, using, and sell­ing it, there is noth­ing to stop them from prof­it­ing from your hard work with­out com­pen­sa­tion. With a patent, you can approach sev­er­al of them with­out the risk of rip-off.
- You’ve fig­ured out a real­ly inno­v­a­tive improve­ment to some­one else’s  device. Since you are an hon­est guy who does­n’t steal oth­er peo­ple’s ideas, you pro­pose the improve­ment with the hope of being com­pen­sat­ed. With­out the right to restrict oth­ers from mak­ing, using, and sell­ing your improve­ment, you risk get­ting only a thank-you as a reward. With a patent, you have a much stronger nego­ti­a­tion position.

## [](https://www.smoltek.com#negative-right-is-positive)Negative right is positive

The right of a patent hold­er to deny oth­ers the use of an inven­tion is called a *neg­a­tive right* in patent law.

The neg­a­tive right sounds neg­a­tive, but it is actu­al­ly some­thing pos­i­tive; it gives the patent hold­er an exclu­sive right to decide who can do what with the invention.

For exam­ple, the patent own­er can decide that nobody is allowed to do any­thing with the inven­tion, and thus be the sole user of it. Or the paten­tee can give select­ed com­pa­nies the right to use the invention.

The lat­ter is called *licens­ing*. The patent hold­er grants a par­ty a license to use the patent under cer­tain con­di­tions. The most com­mon con­di­tion is that the oth­er par­ty pays a roy­al­ty – a fee for each item sold that is made using the patent. How­ev­er, con­di­tions that lim­it the licensed right to a par­tic­u­lar appli­ca­tion or geo­graph­ic area are also common.

We will explore what this means for deep-tech com­pa­nies like Smoltek in a future arti­cle. Don’t miss it!

## [](https://www.smoltek.com#intermezzo)Intermezzo

Now you under­stand why a patent is not a right to pro­duce, use, or sell your inven­tion but a right to deny oth­ers that right. You can use this right to grant oth­ers per­mis­sion to pro­duce, use, or sell your inven­tion on the terms you dictate.

So who gives this right?

The gov­ern­ment does, through its patent office.

But why does the gov­ern­ment, which is sup­posed to treat every­one in its ter­ri­to­ry equal­ly, want to give some­one an exclu­sive right to deny oth­ers the use of an invention?

![Patent 5](https://www.smoltek.com/wp-content/uploads/2024/03/patent-5-900x514.webp)

Fifth attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.

## [](https://www.smoltek.com#social-contract)Social contract

In exchange for dis­clos­ing the secret sauce, the patent hold­er is giv­en the exclu­sive right to deter­mine, for a lim­it­ed time, usu­al­ly twen­ty years, who can use the inven­tion and under what conditions.

The patent own­er ben­e­fits from

- Com­peti­tors can only use the solu­tion under a license, allow­ing the paten­tee to recoup its invest­ment either by licens­ing or by being the sole provider of the solution;
- with­out a license, com­peti­tors can­not copy the solu­tion, allow­ing them to recoup their investment;
- com­peti­tors are forced to devel­op their own inven­tions rather than pla­gia­rize, giv­ing them an advan­tage in the mar­ket­place; and
- they can talk open­ly about their inven­tion with­out risk­ing los­ing the ben­e­fits, mak­ing it eas­i­er to nego­ti­ate with investors, part­ners, and buyers.

Soci­ety and human­i­ty at large will ben­e­fit from

- that the details of new tech­nolo­gies become pub­licly avail­able, allow­ing knowl­edge to spread and soci­ety to develop;
- oth­ers can find prob­lems and solu­tions, which improves the inven­tion and devel­ops the tech­nol­o­gy faster
- any­one can exploit the tech­nol­o­gy after the patent expires, and
- the inven­tion is not lost to humanity.

## [](https://www.smoltek.com#historical-retrospect)Historical retrospect

The idea of giv­ing the inven­tor a time-lim­it­ed exclu­siv­i­ty goes back a long way.

As ear­ly as 500 BCE, the Greek city of Sybaris, in what is now Italy, is said to have giv­en inven­tors the right to make mon­ey from “any new refine­ment in lux­u­ry” for a whole year.

Almost two thou­sand years lat­er and a bit fur­ther north on the Apen­nine Penin­su­la, this idea had evolved into some­thing akin to today’s patents: In 1474, the Sen­ate of Venice decid­ed that the inven­tor was grant­ed ten years of legal pro­tec­tion against poten­tial infringers in exchange for com­mu­ni­cat­ing new and inven­tive devices to the Repub­lic. This is gen­er­al­ly con­sid­ered the birth of patents and patent law as known today.

In the more than five hun­dred years since then, the patent sys­tem has devel­oped in small steps in many parts of the world. Some milestones:

- **1474:** The Venet­ian Patent Statute intro­duced the world’s first patent sys­tem, pro­tect­ing new inventions.
- **1555:** France intro­duces the pub­li­ca­tion of patent descrip­tions, increas­ing transparency.
- **1624:** Eng­land for­mal­izes patents as rights for inventors.
- **1790:** The Unit­ed States passed its first patent law intro­duc­ing a stan­dard­ized patent process.
- **1791:** France cre­ates a mod­ern patent system.
- **1883:** *Paris Con­ven­tion for the Pro­tec­tion of Indus­tri­al Prop­er­ty* stan­dard­ized inter­na­tion­al patent laws.
- **1970:** *Patent Coop­er­a­tion Treaty (PCT)* sim­pli­fied glob­al patent filings.
- **1977:** The *Euro­pean Patent Con­ven­tion (EPC)* uni­fied patent pro­tec­tions across Europe.
- **1994:** *Agree­ment on Trade-Relat­ed Aspects of Intel­lec­tu­al Prop­er­ty Rights (TRIPS)* inte­grat­ed patents into inter­na­tion­al trade.

## [](https://www.smoltek.com#lets-sum-up)Let’s sum up

What have we learned? Patents give the hold­er the right to restrict oth­ers from mak­ing, using, and sell­ing inven­tions. The gov­ern­ment grants this right for a lim­it­ed peri­od, usu­al­ly twen­ty years, in exchange for mak­ing the inven­tion gen­er­al­ly known for the ben­e­fit of human­i­ty. And that this idea is at least more than 500 years old (if not 2500 years).

You could say that in the long run, patents turn inven­tions into open source. Even the name reflects that. The word patent comes from the Latin *patere*, which means “to be open” (for pub­lic inspec­tion – just like open source).

Amaz­ing! Isn’t it?

In an upcom­ing arti­cle, we will look deep­er into patents—or rather, their impor­tance for you as an investor and share­hold­er in a deep tech company.

![Patent 6](https://www.smoltek.com/wp-content/uploads/2024/03/patent-6-900x514.webp)

Sixth and last attempt to AI-gen­er­ate a car­i­ca­ture draw­ing illus­trat­ing the dif­fi­cul­ty of obtain­ing a patent.