Are you curious about patents, but not sure exactly what they are or where to start? Here are some basics to get you started.
What is a patent?
A patent is a legal document that gives the owner the right to prevent others from practicing an invention as it is claimed in the patent. A patent contains a written description of the invention and one or more claims that define the patent rights. Each claim is a single sentence that describes a patentable aspect or embodiment of the invention.
What rights does a patent owner have?
A US patent allows the patent owner to prevent others from making, using, selling, offering for sale, or importing an invention as it is claimed in the patent, in the US or its territories. A commonly misunderstood fact, however, is that a US patent does not give the patent owner the right to practice the claimed invention. That right depends on whether practicing the claimed invention would infringe a claim of another patent owned by another party, which can occur since different aspects of an invention may be claimed in different patents owned by different parties.
What can be patented?
In the US, there are three categories of patents: utility patents, design patents, and plant patents. Utility patents protect functional aspects of inventions such as machines, manufactured articles, compositions of matter, and processes. Design patents protect the appearance and nonfunctional design of manufactured articles such as furniture, computers, clothing, and vehicles. Plant patents protect distinct varieties of asexually reproduced fruits, vegetables, and flowers. Similar patents can be obtained outside the US However, there are national and regional differences that impact the patentability of some technologies in different countries.
How are patents obtained?
In the US, a patent is issued by the US Patent and Trademark Office (“USPTO”) based on a patent application submitted for examination. During the examination process, a patent examiner (USPTO employee who reviews and allows/rejects applications) determines the scope of allowable “claims,” which define the protection sought. These claims are then issued in a patent. A patent is rarely issued in under two years, and often takes longer to issue, but the process can be expedited in certain situations. Before a patent issues, the terms “patent pending” and “patent applied for” can be used on commercial products to inform the public that a particular product is the subject matter of a patent application. However, there are penalties for improper use of these terms.
How long do patents last?
Utility patents have a term of 20 years from the “effective filing date” of the patent application under most circumstances. Design patents last 14 years from the issue date, and plant patents last 20 years from the application filing date. A patent will expire earlier if its owner fails to pay the required government maintenance fees or if a patent is declared invalid in an administrative procedure at the USPTO or in a lawsuit.
Who owns a patent?
In most states, inventors own their inventions unless they give their rights away by contract or by being employed to invent. To determine whether an inventor or his/her employer owns an invention, state law and employment circumstances must be considered, as they may impose a default “agreement.” Most companies require employees to assign any inventions connected to their employment to the company. Most academic institutions require faculty to assign inventions to the institution if the invention involved the substantial use of the institution’s resources (such as expensive laboratory equipment). In return, such institutions typically commit resources to patent and license the inventions and share income from the inventions with the inventors and their departments.
How do patent owners exercise their patent rights?
A patent owner can prevent others from practicing a claimed invention by suing them in a US federal court. Alternatively, a patent owner can license patent rights to others on agreed upon terms. Under most circumstances, a patent owner also can sell a patent to others. A patent should be viewed as a business asset used for fundraising, to generate revenue through licensing, as leverage in a negotiation, or to exclude potential competitors from a particular market or industry for a period of time. A small company can also use one or more patents covering a core industry technology to compete effectively with larger companies. Patents are valuable assets for any company or organization if they cover commercial aspects of a technology.
Why should I consult a patent attorney?
This article covers some—but certainly not all—areas of patent protection, and you can find additional information on the USPTO website and through other resources. However, an attorney should be consulted to protect your inventions. Taking the wrong actions when seeking patent protection, or when enforcing or exploiting an issued patent, could ultimately jeopardize your rights as a patent owner and your chances for winning a patent dispute. Patent litigation counsel should be sought before taking any action, including contacting someone that you suspect of infringing your patent.
Interested in learning more? Visit our patent page.