What is a patent?
A patent is a legal protection granted to an inventor of an invention as described by the law. It is in actual fact, a document detailing the particulars of the invention by the inventor which subsequently entitles him to enjoy a legal monopoly over that invention for a certain period of time.
The general theory is that patent protection provides an incentive to the inventor not only for the creation of a particular invention but also for its development to the point at which it is technologically feasible and marketable. This is the type of an incentive which seeks promote additional creativity, and encourage companies or individuals to continue their development of new technologies to the point at which they are marketable, useful to the public and desirable for the public good.
What is an Invention?
The Industrial Property Order No.5 of 1989 defines an invention as an idea of an inventor which permits in practice the solution to a specific problem in the field of technology. It is in other words, a product or process that brings a solution to an existing technical problem.
Since the rationale for patent protection is to protect technological advancements, for an invention to qualify for patentability, it should in actual fact be able to be applied industrially while solving existing technical problems.
What are the requirements for an invention to be protected?
Not every invention will fall within the ambit of patent protection. The patent system has provided a three step enquiry into determining whether an invention can be patentable or not. It is fundamental for aspiring inventors to know these requirements so as to gauge their invention against the possibility of protection. The three requirements are:
The invention must be new; an invention must never have been made before. A mere reproduction, rearrangement, or basic modification of someone else’s invention will not qualify for patent protection. The invention must not have been anything that is publicly known or constitute part of the information that has been in the public domain.
The invention must constitute an inventive step; there should be a reasonable advancement from the existing art at the time of the conception of the invention. The term “non-obvious” is also used: if it were obvious to a person of ordinary skill in the field concerned, it would not progress to the stage qualifying for patent protection.
The invention must be industrially applicable; Industrial applicability is the ability of the invention to be used in any trade industry (handicraft, agriculture, fishery, pharmaceuticals and services.)
Procedures for filing an application
In Lesotho, in order to file for a patent, the inventor files application with the Registrar containing a request, a clear description of the invention, one or more claims determining the scope of the invention, one or more drawings, where required, and an abstract, all of which will be accompanied by payment of the prescribed application fee.
Where the applicant is not the inventor, the application request is to be accompanied by a statement justifying the applicant’s right to the patent he or she is filing for.
The Order demands the description of the invention to disclose the invention in a manner that is sufficiently clear and complete for it to be evaluated, and to be carried out by a person having ordinary skill in the art, and should, in particular, indicate at least one mode known to the applicant for carrying out the invention.
The claims to the invention is required to be clear and concise and be fully supported by the description. Drawing may even be used where necessary to clearly describe the invention to avoid any ambiguity.
What cannot be afforded patent protection?
According to the industrial property Order, discoveries, scientific theories and mathematical methods; plant or animal varieties or essentially biological processes for the production of plants or animals, other than microbiological processes and the products of such processes; schemes, rules or methods for doing business, performing purely mental acts or playing games; Methods for treatment of the human or animal body by surgery or therapy, as well as diagnostic methods practiced on the human or animal body, are excluded from patent protection.
No provision in Lesotho law suggests the patentability of computer programs.
What is patentable?
Patentable subject matter is not listed in the Order, but any invention that is new, involves an inventive step and is industrially applicable can be subject to patentability.
While the patent system seeks to reward inventors by giving them a monopoly over their technological advancements, regard should be taken to the fact that a patent does not guarantee an economic benefit out of that invention nor does it guarantee its good performance in the market place. The patent merely provides protection and exclusive enjoyment against competitors as the owner of the invention pursues its marketing or commercialization attempts.
A commercialization plan is highly recommended before an inventor can spend a significant amount of the resources in filing for a patent. Remember, as long as a qualifying invention is kept in confidentiality, it maintains in viability to be patented.
Where an invention was made by two or more people jointly, unless they agree otherwise on the extent of ownership each has on the invention, the inventors shall jointly own the invention and it is a legal requirement that they are all mentioned in the patent application as inventors.
The duration of the patent differs from country to country due to the difference in legislation. In Lesotho patent protection subsists for a period of 15 years, and is subject to extension for a period of 5 years upon request to the Registrar, made not more than twelve months and not less than one month before the expiry of the initial patent period.
The Order provides that the Registrar shall only extend the duration of that patent for a period of five years, provided that the person making the request is doing so in order to work on the invention.
Invalidation of the Patent
There are instances where a patent may be invalidated and withdrawn. In terms of section 16 of the Order, any interested person may request the court to invalidate a patent upon proving that; it is neither product or a process; the invention does not fall under patentable subject matter; it is not new; no inventive step has been applied into creating it and it cannot be applied in any industry to solve any technical problem. The interested person may choose to prove the absence of any of the patentability requirements and the court may be compelled to invalidate the patent.
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