Outlined below are the basics of patent law. It is a very complex topic; inventors should work with patent law attorneys to ensure that their intellectual property is adequately protected.
What Is A Patent?
A patent is a type of property right that legally empowers an inventor for a defined period of time, to stop other parties from making, selling or using an invention. Patents only apply to fully developed inventions and do not cover ideas.
Patents generally fall under one of three categories:
1. Utility Patent
This is the most common type of patent, and it protects functional devices. Software patents are also included in this category.
2. Plant Patent
Newly created varieties of plants are protected under this patent.
3. Design Patent
This covers the non-functional or aesthetic features of an item. It should be noted that design patents are an aspect of patents that is exclusive to the United States; other countries use different types of intellectual property laws to protect designs.
Another option inventors have to protect their intellectual property is a provisional patent application, which allows them to label their invention as “patent pending” to discourage others from copying the invention. Inventors may also use this label after filing for a regular (nonprovisional) patent application until the application has gained official approval.
What Is Needed To Qualify For A Patent?
An invention must meet the following requirements to qualify for protection with a utility patent:
- The subject matter is patentable – To qualify for a patent, the invention in question must fall under an officially designated category of patentable items. Anything that can be manufactured, such as machines, devices and processes, generally qualifies for a patent. Printed materials and business methods are traditionally not considered patentable, although this topic is the subject of debate.
- The invention is novel – An invention will only qualify for a patent if there is an element of newness involved. If another party already holds a patent for the invention, the new application will not be approved.
- The invention must be useful – It is not possible to obtain a patent for something that does not serve any purpose.
- The invention cannot be obvious – If anyone with basic knowledge of the type of item invented would consider it obvious, it is not eligible for a patent.
- It must be describable in enough detail that someone else can make it – A principle known as enablement must apply to an invention, which means that the person patenting it must be able to describe it in enough detail that another person could make it based solely on those instructions. Enablement is a term for describing the best way to use and produce an invention.
The Rights Afforded By A Patent
Patents give their holders two crucial powers: the right to exclude and the right to sue another party for infringement.
The Right To Sue For Infringement
Patents typically have several “claims”, which is a section listing which parts of the invention have been granted protection. If one or more claims have been violated, the patent holder may sue for infringement. In a successful infringement lawsuit, a federal court can issue an injunction which prevents the other party from infringing on the patent and may also award damages to the patent holder.
However, it is important to note that in some cases where the government infringes on a patent, litigation will take place through the United States Claims Court. Although the U.S. government reserves the right to use any patented invention without securing prior permission, patent holders do have the right to request compensation from the government when this occurs.
The Right To Exclude
A patent provides the holder with the right to exclude, which means they can stop other parties from selling, using or making their invention. They may reserve the right to sell the patent or make arrangements for a patent license agreement if other parties wish to use or sell the invention.
Keep in mind that patents do not give their holders the right to make or sell an invention. There may be other local laws or existing patents in place that impact the inventor’s ability to sell, make or use the invention they have patented.
Obtaining A Patent
Patent applications are complex, and inventors should work with intellectual law attorneys to improve their chances of success. They require a high amount of detail and can take years to be approved. It is not uncommon for applications to be rejected on the first attempt due to certain formalities; applicants can then amend their application and reapply.