What is a Patent?
A Patent is an exclusive legal right granted for the protection of an invention. An invention may be a new product or a process that provides a new way of doing things or provides a new technical solution to a problem.
There are two key purposes behind Patents:
- To encourage inventors to bring new inventions to the market, rewarding them for their innovation, effort and expense by giving them an exclusive period in which only they can produce and sell the invention. This gives the public the benefit of innovative new technological solutions and products.
- To enrich the total body of technical knowledge that is available in the world. This body of knowledge is intended to promote further creativity and innovation in others, and ensure that valuable information and inspiration is accessible to future inventors and researchers.
Examples of patented inventions include electric lighting, plastic, and ballpoint pens.
What can be Patented?
There are two types of Patents that can be granted in Samoa: Standard Patents and Innovation Patents. The registration of these Patents is governed by the provisions of the Intellectual Property Act 2011.
An invention can be patented as a Standard Patent if it is:
- Involves an inventive step and
- Is industrially applicable i.e. useful and applicable in any industry.
An invention is new if it has some characteristic that is not known in the body of existing knowledge in the technical field of the invention. This body of existing knowledge is called ‘prior art’. Prior art consists of everything known or used, anywhere in the world, by publication in tangible form or by oral disclosure, or by use in any other way before the invention is filed for registration.
An invention is considered as involving an inventive step if, having regard to the relevant prior art, the invention would not have been obvious to a person having ordinary skill in the art. An invention is industrially applicable if it can be made or used in any kind of industry.
An Innovation Patent is a shorter-term right that is designed to protect inventions that do not meet the inventive threshold required for standard patents. It can be used for a product with a short market life (e.g. technology that may be quickly superseded) or to protect each step in the development of new technology before the final product is completed. An Innovation Patent is cheaper and easier to obtain than a Standard Patent.
The IP Act 2011 introduced compulsory license provisions so that the Government can better access patented medicines in the event of public health emergencies.
What cannot be Patented?
Publishing an invention in a document within our outside Samoa, or broadcasting it on TV or the internet can affect the novelty or newness of the invention, which may render it non-registrable. The following, even if they are inventions, cannot be patented:
- A discovery, scientific theory or mathematical method;
- A scheme, rule or method for performing a mental act, playing a game or doing business;
- Diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
- Inventions that are contrary to public order or morality;
- Plants and animals, other than micro-organisms;
- Biological processes for the production of plants or animals, other than non-biological and microbiological processes;
- Inventions that are likely to cause serious environmental harm;
- Mere discovery of a new form of a known substance which does not result in the enhancement of the known substance.
Why Register a Patent?
Benefits from registering a patent include:
- The owner gets the exclusive rights to commercially exploit (i.e. make, use, sell) the invention for the life of the patent.
- The rights of a patent may be assigned, or transferred by succession.
- The patent gives the inventor temporary protection from the forces of market competition.
- The temporary protection and resulting competitive advantage encourages further inventions as inventors know that they can reap a financial reward from their inventions.
- The patent system promotes technological and business competition because patent holders must disclose the details of their inventions in exchange for the specified period during which they have exclusive rights over their exploitation.
- The owner of a patent may institute court proceedings against any person who infringes the patent by exploiting the patent without the owner’s consent.
How do you Apply for a Patent?
In accordance with Section 7 (Standard Patent) and Section 22 (Innovation Patent) of the Act, the following must be provided when applying for a Patent:
A written application (a cover letter and relevant documents) must contain the following:
- The applicant’s name, address and nationality;
- Each inventor’s name (please note that if the applicant is not the inventor, the applicant must provide a statement to justify their right to the patent);
- A request for the grant of the patent;
- A description of the invention including the title of the invention;
- One or more claims and any drawings referred to in the description of any claim;
- An abstract i.e. the technical information required in order to understand how the invention works;
- A statement stating whether or not the invention is based on knowledge available within any local or indigenous community whether from Samoa or elsewhere;
- A statement disclosing the source and geographical origin of any biological material used for the invention; and
- Authorization of Agent form – if the applicant is an overseas based applicant or where a local applicant uses an agent for the purpose of registering the Patent.
Important Information to Note
When preparing your Patent application, please bear in mind the following:
- The IP Act 2011 introduced a new requirement regarding disclosure of the source of knowledge and geographical origin, where an invention is based on traditional knowledge or genetic resources.
- Since full disclosure of the technical information about the invention is required, the description of the invention [as required in part (d) above] must clearly and completely describe the invention so that a person having ordinary skill in the art can carry out the invention. The description must also show the best mode known to the applicant for carrying out the invention.
- A claim [as required in part (e) above] must clearly and concisely define the matter for which protection is being sought and be fully supported by the description of the invention.
- The right to a patent belongs to the inventor. When two or more persons have jointly made an invention, the right to the patent belongs to them jointly.
- When two or more persons have made the same invention independently of each other, the person whose application has the earliest filing date has the right to the patent.
- If an invention is made for a commission or in connection with an employment contract, the right of the patent belongs to the person who commissioned the work or the employer, unless a contractual provision states otherwise.
- The applicant may withdraw the patent application at any time during the period that it is being examined by the Registrar.
The following is the general procedure for processing a patent application. Please note that only Preliminary Checking/Formalities Examination is currently done in Samoa for Patent applications. Where detailed or Substantive Examination is required, we will liaise with relevant external experts for the substantive examination of a patent application (where required).
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