Patents on a Product and a Process

Patents on a product and a process can be registered in Israel and abroad. Patent registration confers a monopoly right on the patent owner for twenty years from the date the patent application was filed with the patent authorities. The patent can be registered for an invention that is a product or a process.

Section 3 of the Patents Law states what a patentable invention is: “An invention, whether a product or a process in any field of technology, which is new, useful, can be applied industrially and involves an inventive step – is a patentable invention.”

In other words, the invention can be a product or a process, and sometimes the invention is both a product and a process.

Patents on an Invention that is a Product
A patent can be filed for an invention that is a product. That is, if a registered patent is granted after the examination of the patent registration application, another person who is not the patent owner cannot exploit the invention, which is a product, without the approval of the patent owner.

Whoever exploits the invention by means of a product that infringes a patent is likely to find himself sued by the patent owner. Exploitation of the invention is not only the manufacture of the product; it is also other exploitation, for example the import of the product, its sale and its commercialization.

Patents on an Invention that is a Process
It is possible to obtain a patent on an invention that is a process, for example a process for manufacturing a product, or a method. Sometimes it is not possible to obtain a patent on the product itself, but the way the product is manufactured and the manufacturing process are new and meet the criteria of the Patents Law.

When it is possible to protect both the product and the process, it is worth protecting both and broadening the scope of legal protection.

When the invention is a process, Section 50(a) of the Patents Law states: “Where the invention is a process, the patent shall also apply to the direct product of the process.” This is an advantage of a process invention.

Moreover, Section 50(b) of the Patents Law states:
“With regard to an invention that is a process for manufacturing a product, in an action for infringement, the defendant must prove that the process he used to manufacture an identical product differs from the process protected by the patent; for the purpose of this subsection, an identical product manufactured without the consent of the patent owner shall be deemed, as long as not proven otherwise, as a product manufactured by the process protected by the patent, if both of the following conditions are met:
(1)   the patent owner is unable to ascertain, with reasonable efforts, which process was actually used to manufacture the identical product;
(2)   there is a high probability that the identical product was manufactured by the process protected by the patent.” (emphasis not in the original)
 
In other words, in this case, for an invention that is a process, the burden of proof is on the defendant and not on the plaintiff, unlike an invention that is a product, where the burden of proof is on the plaintiff.

The above information is partial and incomplete. Each case should be consulted individually with an attorney and patent attorney. For more information and details, contact us or call: +972-3-9711013.