ABSTRACT
Many commercial and academic institutions protect their commercially valuable research information using patents, making the patent literature a rich and early source of cutting-edge research. While scientists and students often create the data that finds its way into patents, some rarely read the patent literature. Here, we provide an informal and brief collection of hints and tips that may assist scientists and students who do not regularly read the patent literature to locate the key scientific findings that are disclosed by patentees. These tips will introduce the reader to: (i) the general structure of patents and the sections of the patents that scientists and students may find particularly helpful; and (ii) a few factors to keep in mind when using data disclosed in the patent literature, such as patent lifespans, jurisdictions and the patent review processes. Although this is not a comprehensive and complete guide to reading patents, the accessible nature of this informal introduction to patent reading should assist scientists and students to make more effective use of the cutting-edge research disclosed in patent specifications.
As patents are typically obtained for inventions that have not been disclosed to the public, patent applications are often the first report of commercially valuable research information. In the patent literature, over two-thirds of technical information that is disclosed in a medical subfield did not appear in scientific journals [Citation1] and Bregonje reported that more than 50% of information in some chemistry disciplines was disclosed only in the patent literature [Citation2]. For example, a high-performance palm portable chemical detection instrument [Citation3], which can be considered a groundbreaking invention for disease diagnosis, was introduced to the patent literature [Citation4] 3 years prior to being reported in a scientific journal in 2009 [Citation5]. However, some scientists rarely read (and often avoid reading) patents. Why? Because they are seen as long and complex documents. Also, the large number of patents in a given area can be daunting and has given rise to the development of advanced algorithms and search methods (i.e. patent informatics) [Citation6–Citation9] to assist companies, researchers, and inventors to identify relevant patents and keep up to date with the expanding patent literature.
In the journal literature, there are a few articles that outline and discuss the structure of patents [Citation10,Citation11]. However, articles in this area are aimed toward engineers and lawyers and do not provide advice on how to locate scientific findings in patents. Here, we provide an informal and brief collection of hints and tips to make patents more accessible to scientists and students. This tutorial is not a comprehensive guide to reading patents and is presented in a way that we hope will provide a simple and concise introduction that is easy and enjoyable to read.
1. Tip 1: know the difference between patents and patent applications
When an applicant files an application for a patent, the application will include a version of the patent that the applicant would like the patent examiner to review and assess. Once this version of the patent is filed, it will typically remain confidential for a period of 18 months. Upon the expiration of the 18-month period, this version will be published as a ‘patent application’ with an identifying number and (in many countries) the identifying number will be followed by the letter ‘A’. After the examiner assesses the patent application and is satisfied that it meets the local legal requirements (and the applicant attends to the various administrative requirements) the patent application will be granted/issued and is referred to as a ‘granted patent’, ‘issued patent’, or informally as a ‘patent’. In some countries, the granted patent will have the same number as the patent application but with the letter ‘B’ or possibly ‘C’ following the number. In other countries (notably the USA and Japan), the granted patent will be published with a different number from the patent application. The key point is that the patent application will be the first public disclosure of the scientific findings.
1.1. Patent Convention Treaty (PCT) applications
Patents are jurisdiction specific (in other words, a granted patent only protects an invention in the country that granted/issued the patent). If an applicant wants patent protection in a number of countries they can (within a set period of time), send copies of their version of the patent to patent offices around the world. Alternatively, to reduce the administrative burden, the applicant may elect to file a single ‘PCT application’. The PCT application reduces the administrative burden on the applicant because, after a period of time, the PCT application is converted into many individual foreign patent applications, one in each country where patent protection is sought. If a PCT application is filed, it will take the place of the patent application referred to above (i.e. the PCT application will be published 18 months after the applicant files the first version of the patent). Therefore, the patent application may take the form of a PCT application.
2. Tip 2: get your bearings
Before reading a patent or patent application, it is helpful to understand the general structure of patents and patent applications; that is, the type of information that is generally contained in each section of the document. For those who are unfamiliar with reading patents/patent applications, knowing the purposes of each section and where key information is located will save you time. Some patents and patent applications helpfully contain section headings and others simply provide the information. Nevertheless, to satisfy all of the legal requirements, most patents/patent applications are structured as follows:
Title: The title of a patent/patent application should clearly, concisely and as specifically as possible indicate the general category of the invention (for example, a product, process, apparatus, use) and the invention (for example, an identified chemical compound or type of mass spectrometer with identified improved features). The title is supposed to identify the invention as specifically as possible. However, a granted patent can have a different title than the corresponding patent application, and such a title change may reflect refinements in response to comments from the patent office. Despite the requirement for specificity, some patentees seek broad titles that may not be of great assistance to readers who are seeking to understand the type of scientific findings published in the patent application/patent.
Abstract: The abstract usually contains a brief summary of the invention and its important technical features. It should also indicate the technical field to which the invention belongs and identify the technical problem the invention seeks to solve.
Background: The background sets out what was known in the technical field at the time the patent application was filed and will usually identify the particular problem(s) the invention seeks to solve.
Summary of the invention: This section should summarize the invention and explain how the invention solves the problem(s) identified in the background.
Introduction to the drawings: Not all patents include illustrations of the invention (referred to as ‘drawings’). If the patentee does include drawings, the patent specification will usually contain a list and brief description of each drawing.
Detailed description: The purpose of the detailed description is to describe the invention in sufficient detail to enable a skilled person to perform the method and/or produce the product disclosed in the patent. Therefore, depending on the invention, this section will contain details about the best method for using and/or manufacturing the invention and may include information about the materials from which the invention can be constructed, the relative amounts of different components of an invention, and so on. This section may also define certain terms used elsewhere in the patent.
Examples: Not all patents will contain examples, but they are common in chemical and biological patents and usually contain information similar to that contained in the ‘methods’ and ‘results’ sections of scientific journal articles. For example, the examples may describe a synthetic method for accessing a particular molecule and results confirming the synthesis of the molecule. Generally, the examples should show how the problem(s) identified in the background was solved by the patentee.
Claims: The claims precisely define the invention that is protected by the patent. The first claim will typically include only the essential features of the invention. There will often be additional claims that refer back to the broad claim, which are called ‘dependent claims’. Within dependent claims there can be subsidiary features that narrow the scope of an essential feature. For example, claim 1 may define an ion mobility spectrometer with various essential features, one being ‘a first drive electric field [that] is generated along the length of the ion channel’ and claim 2 may introduce a subsidiary feature to claim 1 that limits the drive electric field to a ‘static electric field’ [Citation4].
Drawings: If drawings are included in the patent, they may appear at the beginning or end of the document, depending on the country. The drawings will usually indicate the essential features of the invention using reference numbers.
3. Tip 3: read the abstract
Considering the structure of patents and when reviewing a patent for the first time, a good place to start is the abstract. Unlike scientific journal articles that usually have quite informative titles, the titles of patents often provide little guidance to the patent’s content. For example, Australian Patent Number 633217 is titled ‘Oral Composition’ [Citation12], which is relatively unhelpful. However, the abstract is much more informative and identifies the general chemical composition of the oral composition (cetylpyridinium chloride and a lower alkyl ester of Nα-(long-chain-acyl)-substituted basic amino acid or its salt) and how such a composition can be useful (to promote the adsorption of cetylpyridinium chloride on the surfaces of teeth to exhibit an excellent effect in preventing dental plaque and dental caries).
4. Tip 4: jump to the examples
Scientists are likely to find the examples section of most assistance when trying to understand the experiments performed and the results obtained by the patentee. This is because the examples are usually written by scientists and they usually detail a precise experimental method and the results. Some patents may contain examples with experimental detail only (i.e. no results). Nevertheless, such examples can be of assistance to scientists and students as they may foreshadow data that might be published by the patentee in the future and provide guidance in the design of related experiments.
Also, by skipping ahead to the examples, you can bypass the detailed description (the section that scientists typically find most tedious), which is usually written by advisors to ensure the full scope of the patent is protected and meets legal requirements. For example, in the examples section of the Oral Composition patent [Citation12], the exact chemical compositions of two toothpaste formulations, a mouthwash formulation, and a dental floss formulation are provided. In addition, methods and results concerning the adsorption of cetylpyridinium chloride to the surfaces of teeth and the bactericidal activity of cetylpyridinium chloride are reported. In contrast, the detailed description contains long lists of suitable ‘acyl groups’ and ‘salts’ that may not necessarily have been used in any experiments performed by the patentee(s).
4.1. A note for scientists and students interested in organic compositions
Patents that disclose organic compositions may not contain an examples section. Instead, they commonly contain drawings of molecules in the detailed description section. Such drawings detail the structure of molecules (i.e. depict the full chemical structure with all elements identified). Often, this is done by depicting molecular structures with R groups cross referenced to chemical functional groups listed in the text of the specification (such a presentation of the molecule is called a Markush structure). Markush structures enable patentees to protect a broad range of molecules. However, they can be very complex and obfuscate the invention for the reader. Unfortunately, the authors have no hints for understanding Markush structures other than to carefully work your way through all the possible substituents of the structures presented. For some scientific databases (e.g. SciFinder Scholar), it is possible to search by chemical structure (or similar chemical structures) to locate patents that may be relevant.
5. Tip 5: read the claims
It is important to read the claims. The claims define the invention that is protected by a patent, and the patentee has a statutory monopoly over that invention as claimed. The claims are usually drafted in such a way as to extend the invention (and therefore statutory monopoly) to its broadest limits and, as such, may use nonscientifically meaningful language to describe the features of the invention. So while the claims may not necessarily disclose much scientifically, it is important to read and be mindful of them when considering whether to make use of information disclosed in a granted patent.
As patents are limited to the jurisdiction in which they are granted, the same patent specification can have different claims in different countries. If you wish to make use of a granted patent that is outside your jurisdiction, we recommend you check to see if there is a corresponding patent in your jurisdiction and also check for any follow-on patents. If you are unsure, we recommend you seek legal advice.
While many countries have legislative provisions to protect researchers who use inventions solely for research purposes, research exemptions are not available in all countries and may not cover the use you wish to make of the invention. The details of the research exemption are beyond the scope of this article. If you intend to make use of an invention contained in a granted patent, we recommend you seek legal advice.
The comments in this section also apply to patent applications. Once the patent application is granted, a patent owner may be able to take action for prior unlawful use of the invention (even if that patent was only an application at the time of the unlawful use).
6. Tip 6: check the dates
Most patents have a 20-year lifespan from the earliest version of the patent that is filed by the applicant. Certain pharmaceutical patents in certain countries may be valid for even longer periods. It is important to seek legal advice before making use of information disclosed in a patent during the life of the patent.
7. Tip 7: patents are not subject to the scientific method and peer review
Patents undergo an examination process by patent examiners who will assess whether a patent application complies with the legal requirements for a patent in a given country. However, it is important to note that the data contained in patent applications and/or patents are not subject to peer review and the scientific method. The validity of the scientific data (if assessed at all) will not typically be considered unless challenged in patent validity proceedings. Thus, we suggest that the data reported in patents be viewed with this process in mind.
Overall, we hope this informal introduction to patent reading will encourage more scientists and students to read the patent literature and make use of the cutting-edge research disclosed in patents and patent applications.
Declaration of interest
The authors have no relevant affiliations or financial involvement with any organization or entity with a financial interest in or financial conflict with the subject matter or materials discussed in the manuscript. This includes employment, consultancies, honoraria, stock ownership or options, expert testimony, grants or patents received or pending, or royalties. Peer reviewers on this manuscript have no relevant financial or other relationships to disclose
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References
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