Patent Law - Science topic

Thank you so much, Dr.Tim John Hewson for sharing your experiences. Dr. Is Espacenet has a firm-level patent citation?

Sería muy interesante conocer su invención

In academic settings, patents mostly are applied for KPI reasons and to give the technology transfer department a reason for existence. Applying for a patent frequently is cheaper than publishing a manuscript in a scientific journal. Once the patent has been granted and the costs involved would rise substantially, these patents usually will not be maintained, esp. when there is no commercial interest or it would be difficult to impossible to detect and prove infringement or to legally prosecute violations.

So I'd advise to check the patent history. Plus, if the method has been published before the patent was applied for, the patent claims are invalid.

European patent law to my knowledge allows you to create your own samples to study and evaluate a patent even in commercial settings, but it is not allowed to use it in a product. For academic research, there are no restrictions.

Just to add something which influences the patent term: Supplementary protection certificates can extend the patent term with still 5 years as compensation for the clinical trials. This spc has to be granted based on the basic patent, the marketing authorisation in relation to the product (active substance). This can also give a different picture!

Thanks Shantanu Shekhar Singh

Thank you for sharing your experience with the USPTO, EPO, WIPO and EPO. I can only confirm this view based on my own experience.

However, I do not think my previous approach was non-business. On the contrary, if I have a great invention and I need strong protection in many countries, I have a lot of possibilities to achieve it. The timing of entry into the national and / or regional phases is quite important and should be in line with the business affiliation to which the application relates.

One option is to submit a national priority application and then you have 12 months to decide where to go. If you need more time for decision-making, you can use the PCT filing application where you can extend this time to enter the national phases for 30 months from the priority date. Another option is to enter directly into the national phases where I am applying for protection during the twelve months. Alternatively, enter the EPO, successfully terminate the procedure and then only validate in the EPC member countries.

The cost of such a patent procedure is difficult to predict and varies according to the number of countries in which protection is sought, and also by authorities you are trying to achieve it.

In this case, I think that, in order to save money during patent proceedings with national and regional authorities, it is advisable to think about where I can get a positive and quality preliminary survey. As a result, it can simplify further patent proceedings and thus reduce the costs of both the patent attorney and the utility fees.

In this way, patent agents should provide their services.

Aleš beat me to the answer! Luck has a great deal to do with it.

Along with the old stalwart, its not what you know, but who you know!

The tool used by the law firms for this is http://home.docketnavigator.com/.  Pacer can be used to obtain pleadings, but does not allow search by patent.  Docket Navigator does.  I know the guy quoted on the front page of the site, and others that use it.  I suspect there is a fee for usage, but maybe you can get a law firm friend to run you a quick search.  Good luck.

You can not achieve a protection for cell line such as. In patent application you have to prove the effect of your invention. You could achieve protection on new way of cultivation or production or usage of this cell line for treatment of ... . The most popular system in  achievement the patent protection called "problem and solution". You have some problem and your invention offers a solution.  

Dear Orsolya,

Appreciate your interest in the project. I will share additional details over email.

Warm regards,

Avishek

It's not clear what you want. Should you formulation be new and novel, you might be able to get a patent by disclosing the composition. If the formulation is already known and can be purchased elsewhere, then you cannot get a patent.

Most national patent offices have good websites that explain the patenting process. Have a look for example at the USPTO and the European Patent Office's website. 

Vishal,

A utility patent consists of three or four main parts, the abstract, the drawings, the specification, and the claims.

The abstract summarizes the idea and is a one paragraph description that can be easily referenced to assess a patent.

The specification is where the inventor teaches the world what their idea is, how it works, and why it is better than the other ideas (and novel).

The drawings are a graphical aid to explaining the idea.  Some patents have no drawings, for example chemical formula patents.

The claims are a word description of what your idea consists of.  The claims are the most important part of the patent, because the define what the idea is.

Thank you Nkomo. I am really grateful. Can you please oblige me with the names (and citations) of some of these cases? I will be glad to read them.

Thank you Joaquin.

The answer to that question depends on what nation you are in. However, the basic advice provided by Aleš is a good start.

The first thing that must be considered is that you cannot get a patent for an idea. Patents are for inventions. You must develop at least a prototype of the technology to obtain a patent. Generally, the prototype does not have to work perfectly, or be able to accomplish all of the functions included in your patent, but you must be able to demonstrate that your invention is possible.

But in many nations, perhaps all of them, you cannot get a patent if the technology you've invented is displayed in a public manner. Discussion of the invention in academic research journals or at conferences can prevent you from getting a patent or cause the revocation of a patent after it has been issued.

This is no technicality. There are companies that offer prizes of thousands of dollars to people who can find evidence that the technology covered by a patent was publicly demonstrated before the patent was issued. In the US, this is referred to as being "present in the prior art" where "art" refers to the area of science or engineering the patent relates to. It also doesn't matter if it is you or someone else who published information relevant to your patent, any public display by anyone can be used to cancel a patent or a patent application.

Also, the public display of important information related to your invention does not have to be precisely the same as your invention. If the information that is publicly available makes your invention an obvious possibility for those who are knowledgeable in the area, that may also be enough to prevent a patent from being issued or cancel a patent that has been issued.

Depending on the area of the patent, this can mean that it is not enough to do a patent search to determine if your invention has been already made publicly known. You may need to consider research journals or trade publications or even conference abstracts or other publications.

This can be a difficult process if you are working in a language that is not commonly used in the area of research or business. Generally when a patent for a technology is issued in one nation, the patent is considered valid in many other nations. The Patent Cooperation Treaty permits inventors to file patents that are respected in the 148 nations that have signed the treaty. You can find out more about that here (in English, but there are 9 other languages available):

In the EU, the European Patent Office has a website devoted to patent applications and regulations with information for inventors. The home page is here: https://www.epo.org/index.html

And the page that gets you started on applying is here: https://www.epo.org/applying.html

Another thing to keep in mind, though, is that a patent consists of a set of claims about the invention it concerns. It is common that some of those claims to be rejected or modified as part of the patent review process. Because of the complicated process it can take many years to have a patent application reviewed and approved. After filing your patent application, it is possible to develop and sell your invention in the marketplace. If you do this, you must be careful with regard to how certain you are about the strength of your patent claims and which of the various forms of your invention you wish to introduce to the world while your patent application is still under review since some of your patent claims may be rejected or you may need to modify them. This can result in certain parts of your invention being no longer able to be patented as they have been publicly displayed before your claim is put into a form that is accepted by the patent office. However, you usually don't want to wait many years while your patent application is being reviewed before you start making money from your invention.

As is the case during the patent application process, if the validity of your patent is challenged after it is issued, you may also have the result that some of the claims in your patent are canceled while others remain in effect rather than the entire patent being invalidated.

Finally, while it is definitely true that applying for a patent can be very expensive, once you have a patent, that does not automatically prevent others from selling technology that is based on your patent, or parts of your patent. You will have to file a lawsuit against anyone you consider to have violated your patent to obtain a legal order demanding that they stop. Litigation over whether a patent has been violated or infringed upon can be much more expensive than applying for a patent, and it can take much longer. In many nations, though, you may receive a monetary award of up to triple the amount of damages you have received due to the violation of your patent if the court decides that the violation of the patent was intentional.

Depending on your level of knowledge, it may be more helpful to start with some basic articles about patents and the patent application process. Others may be critical of this method, but I find that Wikipedia is a good start for information about many topics, especially the basics about science and technology that are popular among the people who provide the information in Wikipedia's articles. The references can also provide further guidance.

Accept my apologies if anything I have written seems too basic, it is difficult to determine how much someone else knows when a question is short. I have studied US patent law and basic international law concerning business and technology, but I do not work as an attorney with regard to patent applications or disputes.

OK, well over 300 PCT cases filed by me. It is a cheap way of getting potential almost worldwide cover and, most importantly of delaying costs by about 18 months. If your text is written to comply with the major jurisdictions, PCT is a no-brainer. But, get the basics wrong and you are fried. This is not 'do-it-yourself' territory.

A few additional things to note beyond those stated above. You may have an obligation to assign your invention to the University and/or run it through their Tech Transfer office (if they have one) assuming the work was performed as part of an affiliation with a University. [Same issue would be true for an employer.]  If you are clear on that, you also need to understand whether the country you are in requires you to file in the home country first. For example, in the US if you live in the US and invent something, in order to file outside the US you need a foreign filing license which is part of the application process. If you wanted to file somewhere other than the US as the first country you would need to request an expedited license from the US government. Bottom line, you probably need to talk to a qualified patent professional in your jurisdiction to understand your best course of action. Also note that the types of claims that are available for a patent can vary by jurisdiction, so you'd want to understand that as well. And whatever you do, don't make the information publicly available until you've sorted this all out.

As a patent searcher, I can affirm that patent "state of the art" is a useful tool. We also call them landscape searches. This not only identifies patent references and their associated technology developments in a particular field but also the major industrial/academic players. Companies use such search results to help project product development, IP portfolio purchasing (buy up smaller competitors) etc. Although there is a lag in new technological development and issued patents, the new AIA act in the US has changed the patent scheme to First to File putting pressure on filing patents. This new pressure should, in my opinion, move patent art closer to a real time estimation of "valuable" technology that companies/investors are interested in developing. Other research info of mere scientific curiosity is available for peer publication.

Even if I am right, the real problem is that US applications when filed and during most of prosecution are not available for public review. There is confidential examination until approximately 18 mos from filing date. I believe if you can find the major players from previously issued patents AND evaluate the budget / patent IP portfolio of these companies you have a better estimation of what may be happening during this 18 month period. Ultimately issued patents AND published applications (before they become patents) are both usable for evaluation of technology in specific fields.

Most major Universities have IP departments/professionals to help determine if research is worth patent developing or available for peer publication. Possibly a combination is worth pursuing. Most patent searchers as well as USPTO patent examiners search under what is called Non-Patent Literature (NPL) to evaluate a patentable idea. This would include peer review articles.

Exception - technology that is patentable by law but changes so rapidly that patenting is not worth the time and cost do not fit this model. A major example is cell phone apps. A patent searcher must search patent art but must also search app stores because most money for cell phone apps occurs w/n the 1-2 yr life span of the app in the market. Fast moving technology that also expires quickly should not be found in patent art.

Conclusion - the patent art is a strong tool for estimating of usable scientific  technology.

Dear Mr. Vasistha :

As Mr. Abhishek already informed if you qualify the patentability criteria and section 3 of Indian Patents Act, the chances to get the Patent is very bright.

In India, official fee for filing a patent application with specification up to 30 sheets and 10 claims are Rs. 1600 for Individual, Rs. 4000 for Small Entity and Rs. 8000 for Other entity.

Requirements:

1) A simply signed Power of Attorney

2) Form-1 Alternatively, a notarized copy of the assignment deed executed by the inventors is needed  

3) Title of the invention and a provisional or complete specification in MS Word format along with drawings if any.

4) Details of corresponding patent applications filed in other countries in respect of the same or substantially same invention 

5) Name Nationality and Address of the inventors

6) Name Nationality and Address of the Applicants

 Procedure :

 Please be informed that once an application is filed for grant of a Patent, it shall be published for pre-grant opposition. Application shall be examined within a period of 6-12 months from the date of filing a request for examination.  If the Examiner has any objection and/or cited similar/identical prior inventions, we are required to file a reply to the examination report.  In case the Controller is not satisfied with the reply, he will issue another examination report. The authorized agent has to file a reply for that or make personal appearance in favor of grant of the Patent.

 Once the application is accepted, it will publish the same in Patent Journal for opposition purpose.  If no opposition is filed by any interested party, the patent will proceed for grant. Please find attached a chart showing the Patent Procedure for your convenience. We are attaching a Patent Procedure chart for your ready reference.

 Moreover, it is always advisable to conduct the preliminary search on the technology to satisfy the three criteria of patentability.

Hope the above would sufficed to your purpose

Best regards

Samita Kapoor

LL.B; M.Sc.; Patent Agent - 1114

Founder & CEO

Genuiin IP Solutions LLP

Email : info@genuiin-ip.com

Website: www.genuiin-ip.com

The address for service should be in India. Hence, Foreigners heed to contact the IP Attorney/ Agent in India to serve them better. Granting of Patent does not only involve Patent filing stage, there are many stages of local laws which foreigners are not aware of hence, they have to coordinate with Indian Patent attorneys to get their Patent Grant.

Depends what analysis you want to do... have a look at www.lens.org which has some interesting analysis tools.

Hi Shubham,

since I am unsure if you are asking if the patent is a patent that has been granted at your home patent office - and if that could be the case - i would suggest to start your search using your national patent database search engine (they are usually pretty easy to navigate).One other possible simple clue is if the patent starts with letters - they usually inicate the origing of the patent office, where it was granted (though this would in your case probably be more of a "lucky shot")

Otherwise I concur with other colleague"s advices - and also warn that there is no "international patent" no PCT patent and no (till now) European patent (the latter is coming now). In terms of databases I would suggest to start with WIPO"s Patentscope (http://patentscope.wipo.int/search/en/search.jsf) - which is also one of the options presented to you by Ankush.

Hope you have a successful search,

Dolores

Thanks Javier and John for your suggestions. Anna, me too, but I am interested in see it!

wow, clearly none of you actually work with patents. this is like a firm's accountants putting a value on a firm's ipr. you can do it with trademarks and literary/musical copyright, but when you head into patents the whole world changes. the value depends on the validity - and the perceived validity depends on the value [more profit, more incentive to revoke, more incentive to defend, and more incentive to do a deal unless the parties are totally head to head competitors]. most patent cases are settled before they arrive in court, the settlement being based on the likelihood of winning and the cost of failing to win. with kevlar and pampers/huggies we had worldwide fights - with most cases we don't. 

simple - a patent can be granted for such an antibody and may cover its preparation, use, and simply having it, selling it, importing it, exporting it, etc. such patents are granted on the basis that the antibody is new, is inventive, has a use, and its preparation and use has been adequately described. just because you work in academia doesn't make you immune from a patent infringement action. if you work in industry, you clearly are not immune. download a few of my articles and you'll find a reference to an article or book that will help. best regards j

Dear Mr. Ardito,

US Patent Classification - CPC / USPC

The USPTO uses its own US Patent Classification System (USPC) in which all inventions are first put in a class having a three-digit number, then in a numbered subclass under the class. The subclasses are arranged in a hierarchical form, but not necessarily in numerical order. The US classification system is more based on structure than function. In this case, the patent was classified primarily in subclass 123/90.17, defined as follows:

123 INTERNAL-COMBUSTION ENGINES

90.1 Poppet Valve Operating Mechanism

90.15 . With means for varying timing

90.17 .. Camshaft or cam characteristics

Knowing the US classification(s) for a patent is important in searching, because the USPTO database only indexes patents issued before 1976 by number and classification. Therefore, if you need to retrieve pre-1976 patents in your search you have to search by class/subclass number, rather than by keywords.

Since 2013, the US Patent and Trademark Office and the European Patent Office have been WORKING ON coordinating their classification systems into a new system, called the "Cooperative Patent Classification" or "CPC". This classification system is based loosely on the IPC, but is more detailed and easier to use in our opinion. The two patent offices have a website on the CPC which explains how it WORKS. For the same example given above, the CPC for this type of invention would be defined as follows:

F: MECHANICAL ENGINEERING; LIGHTING; HEATING; WEAPONS; BLASTING

F01: MACHINES OR ENGINES IN GENERAL; ENGINE PLANTS IN

GENERAL; STEAM ENGINES

F01L: CYCLICALLY OPERATING VALVES FOR MACHINES OR

ENGINES

F01L 1/x: Valve-gear or valve arrangements, e.g. lift-valve gear

F01L1/34 •characterised by the provision of means for changing the timing of the valves without changing

the duration of OPENING {and without affecting the magnitude of the valve lift

F01L1/344 • •changing the angular relationship between crankshaft and camshaft

F01L1/3442 • • • using hydraulic chambers with variable volume to transmit the rotating force

F01L2001/34423 • • • • Details relating to the hydraulic feeding circuit

F01L2001/34426 • • • • •Oil control valves

F01L2001/34433 • • • • • •Location oil control valves

Please, follow the two links to see the dates ( years that USC had been established).

Best regards,

Hazim

There have been several patent infringement litigations concerning patents on retractable needle devices designed to prevent "sharps" injuries and reuse of needles. Becton Dickinson (BD) and Retractable Technologies Inc. were in one such suit that went to the US court of appeals (Federal Circuit). Another case involved BD and MBO Labs (474 F.3d 1325).

The way these syringes work is this: The needle is mounted inside a guard sleeve. The needle's sharp end protrudes through a hole in the front of the guard, permitting it to be inserted into the patient. When the needle is removed from the patient, the health care worker slides the needle backwards relative to the guard. A "blocking flange" is mounted on the guard and held in spring tension against the needle. When the needle's point slides behind this flange, the flange moves vertically in relation to the guard, covering the tip of the needle and preventing it from being inadvertently re-exposed. The needle's tip is covered by the flange and the rest of the contaminated needle is sheathed inside the guard. Once the flange is activated, the needle is encapsulated by the guard sleeve and rendered safe.

There is a whole cottage industry of personal injury lawyers doing needle stick cases.

For an article on these devices (old but thorough), see Needlestick and Sharps Injury Prevention - www.nursingworld.org, No 3: Sept'04.

You will find more than you want to know about needle stick by using Google.

The current legal status of these issues at the European Patent Office is as follows.

According to Art. 53(b) of the European Patent Convention, plant or animal varieties or essentially biological processes for the production of plants or animals are excluded from patentability. In the past, there has been questions on what exactly is means by "essentially biological processes". This resulted in two referrals to the Enlarged Board of Appeal of the European Patent Office (G 2/07 and G 1/08) which then made the following statements.

Following this case law, one cannot patent plants that are produced by conventoinal breeders' breeding processes. However, one can protect such plants using the breeder's right.

Unfortunately, this is not the end of my answer, since meanwhile new questions have been referred to the Enlarged Board of Appeal in G 2/12 and G 2/13. These questions are the following.

G 2/12:

G 2/13:

Hence, your question can currently not be answered completely. We will have to wait and see as to what the Enlarged Board of Appeal will decide in these matters.

The answer to this question is simpler. For patentability, methods of diagnosis are similar regardless the technical field. Hence, it does not matter whether the method of diagnosis is in the medical field or not. Even if it is in the medical field, the diagnosis does not necessarily have to deal with a disease condition, as long as something is diagnosed. Also, a cure does not have to be available. For example, a method for diagnosing whether a certain individual suffers from ebola may be patentable, even though currently no cure exists.

There is case law on methods of diagnosis however, since Art. 53(c) EPC states that methods for treatment of the human body by surgery or therapy and diagnostic methods practised on the human body or animal body are excluded from patentability. With respect to diagnostic methods under Art. 53(c) EPC the Enlarged Board of Appeal listed the following requirements in G 1/04.

I hope this information is helpful to you.

Gautam, if you can identify any factor in your extract that can potentially enhance the potency of your key component then you do have an advantage there.

The use of your key constituent is proven. Let us assume that a country store in the State of New Mexico prints a small note as a flyer touting the benefits of a berry drink that they are selling; this becomes prior art.

There are a number of aspects which you need to consider.

First of all, it is not entirely clear to me from your questoins as to whether you have already filed a patent application as a first filing or not. If you have done so, than the Paris Convention allows to file a so-called subsequent patent applications within 12 months from the first filing date. These subsequent patent applications can claim the filing date of the earlier patent application as so-called priority date, which is the relevant date for determining the relevant prior art.

In deciding which countries you want to keep open the possibility of having a granted patent right, indeed you can consider filing an international patent application under the Patent Cooperation Treaty, as suggested by Fernando Torres. This internation application postpones costs and a decision on the actual countries with one and a half years. After that period a decision must be taken, in which countries/regions you want to continue with applying for a patent.

The country decision should be made on the basis of the commercial interests of the invention. Thus, countries where you intend to manufacture or market the invention, and countries where competitors manufacture or market similar products would be important. Additionally, some patent offices have a good reputation as regards there substantive examination of patents, such as Europe and the United States. If you are successful in getting a granted patent before these patent offices, then many other small patent offices are willing to follow their decisions.

Finally, note that there is no "global patent". A patent right is always a national right and only yields protection in the countries where a granted patent is actually in force.

If you change an "abstract idea" into an "original expression" or a "practical application," then you have a chance to protect your work as either copyrighted work or patented products. Algorithms and frameworks themselves are not patent eligible. You have to connect algorithms and frameworks with "real world" applications, such as how to search for a desirable combination faster, how to convert data between platforms more efficiently, and how to separate two sets of data from one source.

The reason is that ideas themselves are neither copyrightable nor patentable. Copyright only protects the original expression of an idea while patent protects man-made, inventive and novel inventions based on ideas.

Three basic Criteria:

1) New: Should be completely different from prior art (should be published or disclosed ever anywhere!);

2) Non-obvious: Should be newer for the person Skilled in art as well as should be reproducible by person skilled in art;

3) Industrial Applicable: Should be useful to society/industry...

From these criteria you can definitely say that your work shouldn't published anywhere before you FILE a patent...

Thanks for your reply.

Hi Annapurna,

Patent law is territorial. Unless the product could be sold worldwide (popular software/game or blockbuster drug), there is no need to file a PCT. Over 99% of all patents has no value (not sold, licensed or put into a commercial product).

Patent law also put small business and individual inventors at an uncomfortable position exactly as you noticed: hard to appreciate the market value and cash-short to file patent applications.

If you are not sure about the value of your invention, you may consider to keep it as a trade secret, and keep improve the qualify thereof. As long as you are constantly modifying your invention to make it better, there is no statutory bar preventing you from patenting the technology/product at a later time (in U.S.)

Dear Dr. Feng Tian,

Invention is differing from discovery. An invention has 3 characteristics:

1. Novelty

2. Inventive Step

3. Industrially applicable

Genes and their derivatives are products of nature and manipulation of them is not an invention. An Invention can be patented (and not a discovery). For example, electricity is a discovery; can you patent it? Therefore a second code hiding within DNA and even synthetic complementary DNA (cDNA) cannot be patented.

The problem with the patent troll issue is not "abstract" patents, but a side product of the U.S. patent system. Since patents are a form of property, they should be allowed to be traded from one owner to another. Because software patents are allowed in one form or another under the U.S. patent law, non-inventors or non-practitioners who recognize the value of certain patents can buy and sell patents as they wish. As long as more patents are granted (in the U.S.), more infringement lawsuits will be filed. That is normal.

Obviously, the U.S. patent system should bear part of the blame for the patent troll problem. Certain issued U.S. patents have overly broad patent claims due to the way USPTO examiners negotiate the patent claims with inventors. For example, it is foreseeable that one examiner may not know there is a similar patent application on the same or equivalent technology that is being handled by other examiners or other patent offices. Another possibility is that during the examination period, which may last for years, the scope of originally filed claims may shrink or expand at the end of the prosecution. Still another explanation is that the examiner simple misses a key prior art reference. A recent infringement case (see the reference at the end of this post) between a U.S. Nobel Laureate and a German University president epitomizes the clash between inventors under the U.S. patent system. Thus, although every patent claim may seem justified according to its own prosecution history based on cited prior art references, the patent scope allowed for each patent claim in the backdrop of the whole patent universe may become less justified or even screwed due to the inevitable claim overlap, a by-product of the hiccup of the patent system. That is one problem we can address to reduce such unfortunate, expensive patent litigations.

Reference:

Evonik Degussa GmbH v. Materia Inc., et al., C.A. Nos. 09-636 & 10-200, (D. Del. Sept. 30, 2013). Available at: http://www.ded.uscourts.gov/sites/default/files/Chambers/OtherOpinions/NLH/Opinions/Sep2013/09-636.pdf

For a news report from C&EN News: http://cen.acs.org/articles/91/i45/Metathesis-Catalyst-Showdown.html

Hi, I was working for an inventor in El Salvador, and I helped him to patent his invention. We begun from zero asking and reviewing articles about how to write, draw and follow the process of patenting. We hired a lawer that was a former examiner of the USPO and, at last, we could patent a ecological stove.

This article may help you.

Regards,

Yes, US patent numbers are assigned in chronological order with respect to the issue date. The sequence beginning with "1" was established by Patent Act of 1836. The citation is Ch. 357, 5 Stat. 117 (July 4, 1836)

you can present your poster presentation, but you should be careful enough not to disclose the core technical details of your inventions. you should file for the patent within 12 months from the date of disclosing.

The Indian Sec-29, 31 talks about the previous publication.

the complete sections from 29-32 talks about anticipation.

There is no general answer to whether you can work with those plants. As Steingrimus says,it depends on what you want to do. You will have to go through each of the patents and analyse basically three things:

(1) Are they just patent applications or granted patents

(2) Which claims are granted, like their USE and maybe a WAY OF MANUFACTURE, say work-up of the plants to generate a commercial product

(3) In which country / territory are the patents upheld

In case you would like to do something with the plants that is protected by a patent valid for your territory, you have to obtain a license. The patents contain the information about the applicant, so you can easily find out which company you would have to talk to.

I disagree with Steingrimur's second answer, if the invention is built on (can be inferred from) publications, it is likely not patentable anymore because the papers would be considered novelty-destroying prior art (although that varies from European to US law).

In general, the patent comes before the paper (if done properly). I generally see patents as very important primary sources of scientific information and encourage you to cite them!

The easiest way to cite a patent is by its number. These numbers indicate which patent office is responsible for the patent. The numbers are unique numbers such that it is easy to get the full information if needed. Different patent offices use sometimes clumsy dashes and slashes but I recommend the European Patent Office nomenclature, like US6472439B1 or WO200047992A1 or EP1151292B1. The last two characters contain useful information, too. They are called "Kind Code", basically A1 means patent application and B1 means granted patent, but please refer to the exact definitions for each patent office. Also, journals ussually have standard ways to cite patents, just inquire.