Patents – What Do You Need to Know?

What is a Patent?

A patent is a form of intellectual property right granted by a government to an inventor or their assignee. In return for publicly disclosing the details of an invention, the patent owner is granted exclusive rights to prevent others from exploiting the invention, typically for 20 years from the filing date. In certain industries, such as pharmaceuticals and veterinary products, patent terms can be extended to compensate for lengthy regulatory approval processes.

These exclusive rights allow the patent owner to stop others from making, using, selling, or importing the invention without permission. The combination of exclusive rights and the public disclosure of the invention ensures inventors are rewarded while society gains access to new knowledge. This public sharing of detailed information enables others to understand the invention and build upon it, driving further innovation and the development of improved or next-generation technologies.

What Can Be Patented?

Not all inventions are eligible for patent protection. To qualify, an invention must meet three main legal criteria:

• Novelty – it must be new, meaning it has not been disclosed publicly anywhere in the world before the filing date.
• Inventive Step (Non-Obviousness) – it must not be an obvious combination or modification of existing knowledge to someone skilled in the field or an obvious development of what is publicly available before the filing date.
• Industrial Applicability (Utility) – it must be capable of being made or used in some kind of industry.

In practice, the most difficult requirement to assess, and often most difficult to overcome, is the inventive step. Whether an invention would have been obvious to the skilled person is rarely clear-cut, and different jurisdictions apply different legal tests to make this determination. Framing inventions, crafting arguments, and assembling supporting evidence to demonstrate an inventive step is a key focus of patent attorneys and a key part of the value they bring.

In addition to meeting these criteria, the invention must fall within the scope of patentable subject matter. Under European patent law, certain types of inventions are excluded from patentability, including:

• Methods of treatment of the human or animal body by surgery or therapy
• Diagnostic methods practiced on the human or animal body
• Computer programs “as such”
• Business methods
• Plant or animal varieties, and essentially biological processes for their production

Similar exclusions apply in many other jurisdictions, although the details and interpretation vary. For example, unlike Europe, the United States is generally more permissive regarding the patentability of diagnostic methods.

How Long Does the Process Take?

Obtaining a patent is a multi-stage process that typically takes 3 to 5 years, depending on the jurisdiction and nature of the invention. The main steps are:

1. Filing the application – The process begins with submitting a patent application to the relevant patent office.
2. Search Report – A search is conducted and issued by the patent office to identify earlier publications that may affect the patentability of the invention. 
3. Publication – Patent applications are published 18 months after the earliest filing date, making the invention publicly visible.
4. Substantive Examination – The application is examined in detail to assess whether the invention meets the legal criteria.
5. Grant – If the application is successful, the patent is granted and published as such.

Some jurisdictions, including Ireland, also offer short-term patents (known elsewhere as utility models or innovation patents). These are granted more quickly, with lower inventive-step thresholds, but they provide shorter-term protection and often more limited enforceability.

The Unified Patent Court (UPC) – What Has Changed?

Since 1 June 2023, the Unified Patent Court (UPC) has been fully operational, introducing one of the most significant changes to the European patent landscape in decades.

The UPC allows patent owners to enforce or challenge European patents across participating EU member states with a single action. Rather than litigating patents country by country, parties can now enforce or invalidate European patents, including Unitary Patents, with a single legal action across all participating member states. This can reduce costs and increase consistency but also introduces new strategic considerations, including the risk that a single successful revocation at the UPC can invalidate a patent across all participating states.

• Where does it apply? The UPC currently covers 18 EU countries (as of mid-2025), with more expected to join. 6 additional EU countries have signed the agreement, including Ireland, but have not yet completed ratification. Ireland had planned a referendum in 2024, but this has been deferred. Once ratified Ireland will establish a local UPC division in Dublin.
• Which patents does it cover? Both European patents (unless opted out) and the new Unitary Patent, a new type of European patent that provides uniform protection across all participating EU countries without the need for separate national validations.
• UPC Opt Out. During the UPC’s transitional period (ending May 2030 at the earliest), patent owners can choose to opt out their existing European patents from the UPC system. Opting out means that any disputes involving those patents will remain within national courts rather than being heard by the UPC. This can help reduce risk, especially for valuable patents, as a single UPC revocation would no longer affect those patents across all participating states. Deciding whether to opt out is an important strategic consideration.

For businesses operating in Europe, patent filing and enforcement strategies may need to be reconsidered in light of the UPC.

What Should You Do if You Have an Invention?

The main piece of advice is to keep it confidential. Public disclosure, through publication, presentations, sales, online sharing etc., can destroy the novelty of your invention in most jurisdictions and prevent you from obtaining valid patent protection.

While the United States allows a limited one-year grace period to file a patent application after first public disclosure, most jurisdictions, including Europe, require filing before any public disclosure. Therefore, it is always prudent to file a patent application as early as possible to protect your invention and enable commercial disclosures to begin without risking your patent right.

If you believe you have a patentable invention, seek professional advice early to develop an effective patent strategy tailored to your invention and commercial goals. This is especially important now, with the UPC changing how patents are protected and enforced across Europe.

At PURDYLUCEY, we help innovators protect what matters most – their ideas. With deep expertise in patents across Ireland, Europe and beyond, we guide clients through every stage of the process, from securing protection to navigating complex enforcement landscapes, including the new Unified Patent Court.