Global competition today is also played on patents. In particular, a war on dominance is underway among the tech companies in some specific production sectors such as, for example, that of chip and gods semiconductors. Research conducted by Mathys & Squire, a British law firm specializing in intellectual property, registered a record 69,190 patents for semiconductors in 2022, an increase of 59% compared to 43,380 five years ago. At the same time, it stated that China has overtaken the United States, filing 55% of semiconductor patents. In the same period, the registration of patents in the United Kingdom amounted to 179. A paradox, if we consider that in the collective imagination the land of the dragon has often been assimilated to a country capable above all of copying the inventions of others, including those of Italy .
If we move from the field of patents for semiconductors to that of patents in general, in the old continent theEuropean Patent Office (EPO) received 193,460 applications in 2022, an increase of 2.5% over the previous year. There digital communication (+11.2% on 2021) was once again the sector with the highest number of applications, followed by medical technology (+1.0%) and from computer technology. At a transversal level, the scope of the cleantech it was the fastest growing of the top ten technology sectors.
What is meant by patent?
In the EPO ranking, which includes the 50 countries in the world that have applied to the European patent office, Italy ranks eleventh with 4,864 applications filed last year. It is therefore not surprising that there is a dedicated page of the Ministry of Enterprise and Made in Italy (MIMIT) which explains what a patent is: “A patent is a title by virtue of which the owner is granted a temporary monopoly for the exploitation of a found, for a limited period of time, consisting in the exclusive right to make it, dispose of it and make commercial use of it, forbidding such activities to other unauthorized subjects. A patent does not give the holder an authorization to freely use the invention covered by the patent, but only the right to exclude other subjects from using it”. To better understand this definition, it is advisable to proceed step by step, starting from a first essential question: how do you obtain a patent?
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How to obtain the patent
In Italy, the reference legislation is Il Industrial Property Code, issued with Legislative Decree n. 30 of 10 February 2005. It is an organic corpus on the subject of protection, defense and enhancement of intellectual property rights, which takes into account the community regulations and other international provisions to which our country has adhered. This legislation establishes two ways to have one’s intellectual property rights recognised: the patenting and the registration. The first includes industrial inventions, utility models and new plant varieties. The registration area includes trademarks, designs and models, the topographies of semiconductor products.
For both of these categories, the responsible administration is theItalian Patent and Trademark Office (UIBM) which you must contact to obtain the industrial property rights you wish to be recognised. The simplest, cheapest and fastest way to submit an application for intellectual property rights or a related instance is through the use of the online services portal. Alternatively, the application can be submitted through a Chamber of Commerce or mailed to MIMIT. These methods have the disadvantage of providing for higher fees compared to the online deposit and a significantly longer duration of the procedure.
What can be patented?
MIMIT underlines that “only the technologic innovations with industrial application, which present themselves as new, original and concrete solutions to a technical problem”. It is therefore possible to patent:
- industrial inventions
- utility models
- new plant varieties
Utility models refer to the new form given to an industrial product such as to give it a particular effectiveness. The patenting of new plant varieties is possible if a cultivar has been created through specific biotechnological procedures. As regards the industrial inventions, contemplate industrial manufacturing methods or processes. This also includes machines, instruments, tools, mechanical devices or products capable of providing immediate technical results.
It is interesting to note that in theory “computer programs” are excluded from patentability, i.e. i software. To protect paternity, one usually resorts to the Copyright. However, current European and Italian jurisprudence makes it possible to patent a program if certain characteristics are met. First of all, that it has technical peculiarities, in the same way as industrial inventions, and that it is not limited only to processing information. Secondly, it interacts with the components of a machine, adding functionality that the machine otherwise could not possess.
How much does it cost to get a patent
The amounts for filing rights for a patent are variables depending on whether the question is for an industrial invention, utility model or new plant variety. Leaving aside the last two, invention patents are subject to a basic fee of 50 euros in the case of electronic filing, which can fluctuate between 120 and 600 euros if you opt for paper filing, an amount parameterised to the number of pages that make up the request. In both cases there is an additional fee of 45 euros for each claim over the tenth. In practice, the claims identify the specific features of the invention for which protection is sought.
To these figures must be added the payment of 200 euros for the translation into English of the claims, unless the applicant himself provides it. The translation is in fact necessary as the patent file must also be sent to the EPO to carry out the translation prior art search which verifies the novelty requirement of the invention.
Who is the owner of a patent
The owner of the patent is the person who will exploit it economically. As such, it can be either a legal person be one physical person. Article 63, paragraph 2, of the Industrial Property Code establishes that “the right to a patent for an industrial invention belongs to the author of the invention and to his successors in title”. However, the subsequent article 64 specifies that “when the industrial invention is made in the execution or fulfillment of a contract or an employment or employment relationship, in which the inventive activity is envisaged as the object of the contract or relationship and paid for this purpose, the rights deriving from the invention itself belong to the employer, except for the right pertaining to the inventor to be recognized as the author”. Which, translated, means moral but not economic right.
Another matter, article 64 always says, if the worker conceived the invention going beyond his duties. In this case, a fair prize will be recognized to the inventor, it being understood that the right to exploit the patent remains with the employer. The only exception to this rule occurs when the inventors are researchers working in universities or research institutions. In this case the researchers are the exclusive owners of the rights deriving from the patentable invention of which they are the authors. Universities and research institutions can decide the maximum amount of license fees and proceeds that the patent holders must transfer in the event of economic exploitation. Proceeds which in any case cannot exceed 50% due to the inventors.
How long does a patent last?
Industrial property rights last 20 years from the date of filing of patents for industrial invention, provided that the object is implemented and that maintenance costs are paid regularly.
The term “implementation” indicates the manufacture and sale of the object of the patent within three years from the date of grant. The maintenance quotas, on the other hand, must be recognized on an annual basis starting from the fifth year after the patent application. If the annuity is not paid within the established terms, the patent expires and with it the owner’s right to exploit it.
When the 20 years of protection expire, the object of the patent becomes public domain and anyone can use it freely.
For tech companies that have embarked on a process of patenting their own invention or that are in a stable relationship with a company that holds one or more patents, the duration of industrial property rights represents a guarantee of market presence. With the further advantage of offering objective coverage that favors non-incorrect and basically fair competition policies.