A patent is a grant issued by the government giving the inventor the exclusive right to exclude others from making, using, offering for sale, selling, or importing the patented invention for a limited period. Under the Intellectual Property Code, an invention is patentable if it meets three requirements. First, novelty: the invention must be new, that is, it must not form part of prior art, which comprises everything made available to the public anywhere in the world before the filing or priority date; a public disclosure by the inventor within twelve months before the filing date does not prejudice novelty (the grace period). Second, inventive step: the invention must involve an inventive step if, having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing or priority date. Third, industrial applicability: the invention must be capable of being produced and used in any industry. Certain subject matter is expressly non-patentable, including: discoveries, scientific theories, and mathematical methods; schemes, rules, and methods of performing mental acts, playing games, or doing business, and programs for computers (though a computer-implemented invention with a technical effect may be patentable in appropriate cases); methods for the treatment of the human or animal body by surgery or therapy and diagnostic methods (though products and devices used in them may be patentable); plant varieties or animal breeds or essentially biological processes for their production (protected instead by a separate plant variety law); aesthetic creations; and anything contrary to public order or morality. The term of a patent is twenty (20) years from the filing date of the application, non-renewable, and it is subject to the payment of annual fees to maintain it. Related but distinct protections are the utility model and the industrial design, which have lower requirements and shorter terms. So a patent protects a new, inventive, industrially applicable invention for twenty years from filing, excluding non-patentable subject matter like business methods and treatment methods.
What a Patent Grants
A patent gives the inventor the exclusive right to exclude others from making, using, selling, or importing the invention for a limited period.
The Three Requirements
- Novelty — not part of prior art anywhere in the world (with a 12-month grace period for the inventor's own disclosure);
- Inventive step — not obvious to a person skilled in the art; and
- Industrial applicability — capable of being produced and used in industry.
What Cannot Be Patented
Discoveries, theories, and mathematical methods; methods of doing business and computer programs (a technical computer-implemented invention may qualify); methods of medical treatment and diagnosis; plant varieties and animal breeds; aesthetic creations; and anything contrary to public order or morality.
The Term
Twenty (20) years from the filing date, non-renewable, subject to annual maintenance fees. Utility models and industrial designs have lower requirements and shorter terms.
Practical Takeaways
- Need novelty + inventive step + industrial applicability;
- Business methods and treatment methods are not patentable;
- The term is 20 years from filing.
Frequently Asked Questions
What are the requirements for a patent? The invention must be new (novelty), must involve an inventive step so that it is not obvious to a person skilled in the art, and must be industrially applicable, meaning capable of being produced and used in industry.
How long does a patent last? Twenty years from the filing date of the application. The term is non-renewable and is subject to the payment of annual fees to maintain the patent.
What cannot be patented? Discoveries, scientific theories, mathematical methods, schemes and methods of doing business, computer programs as such, methods of medical treatment and diagnosis, plant varieties and animal breeds, aesthetic creations, and anything contrary to public order or morality.
Does disclosing my invention destroy novelty? Not always. A disclosure made by the inventor within twelve months before the filing or priority date does not prejudice novelty, under the grace period, but disclosures outside that period generally do.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.