In the Health Sector, Protecting New Knowledge Is the Alpha and Omega
Intellectual Property Rights (IPR) protect the development and utilisation of new medicine and products for the health sector, among others. Exclusive rights to inventions enable companies to invest in the development of expensive medicine, for instance.
What Is a Patent?
Intellectual Property Rights can be protected through e.g. patents, utility models and trademarks. The typical form of protection used in the health sector is patents.
With a patent, the owner of an invention can prevent others from exploiting, using or selling the invention (i.e. commercialising it) for up to 20 years. Sometimes for longer. In return, the invention must be made public, making it possible for others to do more research and possibly create even better and competing inventions of benefit to society.
According to the Employees’ Inventions Act and the Act on inventions at public-sector research institutions, the employer usually has the right to the employees’ inventions. PhD students are also considered employees. The employee is obliged to report inventions to his or her place of employment, i.e. a company or university/hospital. The place of employment can then choose to assume the rights to the employee’s invention for the sake of commercialisation. If the invention is commercialised, the institution is obliged to pay the employee a fee from any net income realised.
Ordinary students have a right to their own inventions and are therefore not obliged to report them to the educational institution. As patenting and commercialisation cost money and time, they may choose to do so though, if they want the institution to manage the IPR. If the institution decides to assume the rights, the student will be treated like an employee and thus falls under the institution’s rules regarding fees, should the invention be commercialised and yield a net income.
What Can Be Patented?
For an idea to be patented, it must:
- Be original and cannot have been disclosed in publications, in connection with a PhD defence, presented at conferences, in videos online etc.
- Be significant, i.e. distinguish itself significantly from existing solutions.
- Be industrially usable, i.e. be able to be put into production and used.
How Do You Take Out a Patent?
The first step of the patenting process is to perform a novelty survey. Has someone else made the same or a similar invention? If the survey finds a similar or identical solution, the idea usually cannot be patented.
If the survey does not find a similar or identical solution, the inventor may produce a patent application. It consists of a detailed description and illustration of the invention as well as a series of patent requirements defining the extent of protection of the invention.
The application is submitted to a patent authority, and in return the applicant receives ‘priority’ (date of submission) and an application number. Now the right to the invention has been established, and it may be published, e.g. in a scientific article, PhD defence, lecture or similar.
12 months later the inventor typically submits a so-called PCT application, and after 30 months he or she must decide in which countries he or she wants rights to the invention and protection hereof. This stage, called the national stage, can be expensive, as the patent application must be translated into the languages in question. Following the national stage, the invention is approved by the patent authorities, and the inventor receives the patent.
Can You Make Money on a Patent?
You can make good money on a patent if there is a market for the invention and the patent-holder enters into a commercial agreement with another party on utilisation of the invention. But a patent does not guarantee a profit. You can choose to enter into agreements with companies who, for payment, get to use the invention. You can either choose to license the invention and receive royalties, an annual license fee etc. or sell the invention and receive a one-off payment. There are various models for making money on a patent.
If you are meeting with external parties to discuss new ideas or exchange confidential knowledge about an idea that might lead to a patent application, the parties often have to sign a non-disclosure agreement, also called a confidentiality or secrecy agreement.
This can be relevant in connection with collaborations or courses where a participating company is giving a presentation. It can also be relevant if a student is doing a company internship programme or writing his or her thesis in cooperation with a company.
If the knowledge that is shared here can subsequently become the object of a patent application, it is important to first sign a non-disclosure agreement. Otherwise the knowledge in question will be considered public and thus not ‘new’, which is a requirement for getting a patent.
A non-disclosure agreement can also ensure that others do not apply for rights to the ideas or knowledge of the progenitor, as long as it clearly states who knew what before the meeting or collaboration.