Patents: A Primer
Ideas, processes, and designs have intrinsic value. Protecting that value is crucial for individuals and businesses. Patents protect an invention by granting a property right to the inventor. The Patent Act (Title 35 of the United States Code) governs patents. The United States Patent and Trademark Office (USPTO) also has rules and guidelines for obtaining patents. A Maryland business attorney plays a critical role in successfully completing the patent process.
What Is a Patent?
A patent grants the holder exclusive rights to an invention. The invention may be a product or a process that provides a new way of doing something. According to patent law, a patent gives the holder the right to exclude other parties from using, making, selling, or offering for sale the patented invention within the United States. It also prohibits another party from importing the invention into the country.
A patent protects the right of the patent holder to exclude others from importing, using, making, or selling the invention. It does not grant the patent holder the right to make, use, sell, import, or use the invention. After the USPTO issues patents, it is up to the patent holders to enforce the patent through the courts.
What Are the Types of Patents Issued in the United States?
The first step in understanding patents is to understand patentable subject matter. Patent applications can be filed for three types of products or processes:
Utility Patents – Utility patents cover ideas that lead to a new and useful machine, process, composition of matter, or article of manufacture. Patents also protect new and useful improvements of these inventions.
Design Patents – Design patents protect inventions for new, original, and ornamental designs for an article of manufacture.
Plant Patents – Plant patents protect the discovery or invention of a distinct, new variety of plant. The plant must be asexually produced for the USTPO to grant a patent.
Determining the processes and articles that fall into each of the above categories can be confusing. The United States Supreme Court and other courts have defined and interpreted the language in Title 35 over the years.
For example, manufacture is defined as producing items for use from prepared or raw materials by giving the materials a new property, quality, form, or a combination thereof. Manufacture includes machines and hand labor. Diamond v. Chakrabarty (1980)
Designs include a “new, original, and ornamental design for an article of manufacture.” The design of an item can include its configuration and shape. It also includes the design for the product’s appearance, which includes a print, ornament, picture, or impression applied to or embedded in the manufactured article.
When you consider the categories of patent material together, they cover almost every item that can be manufactured by hand or machines that the processes for making the items.
Patents granted by the USPTO only apply in the United States and its possessions and territories. Patents can't be extended once they expire. However, patent holders can patent improvements on the original invention or process. To protect your intellectual property, consult with a patent attorney to file patents, trademarks, and copyrights.
How Do You Apply for a Patent in the United States?
The first step is to determine if your invention is patentable. The invention must fall into one of the patentable categories. You must also search all previous public disclosures. If an invention has been publicly disclosed, it is not patentable. You should also search printed publications and foreign patents. Searches are not required before filing a patent application. However, doing so ensures you do not waste time and money filing for a patent that is unavailable.
You must determine what type of patent you need and whether to file a provisional or nonprovisional patent application. Initial applications and filings fees may be submitted online. If your application is incomplete, the USPTO notifies you. After you take care of any issues so your application is complete, an examiner reviews the application.
The examiner may reject the application. If so, the examiner notifies you of the reasons. You can make amendments or argue against the decision. If the examiner rejects your application twice, you can appeal the decision to the Patent Trial and Appeal Board.
The patent application can be lengthy, time-consuming, and incredibly technical. The patent application can be confusing, and the proof required to obtain a patent is exceptionally detailed. Any errors or omissions can result in a rejected application.
Patent lawyers understand the patent process, including how to conduct patent searches. In addition, they understand the law and what is necessary to have a patent application approved. Legal counsel during the patent process can eliminate mistakes and avoid delays and denials of your patent application. Lawyers also help you maintain your patent to prevent losing the patent before it expires.
What Happens if Someone Uses a Patented Invention Without Permission?
You may exclude everyone else from using your patented invention. If someone uses a patent that has not been licensed for use, the party can be sued for patent infringement. An infringement lawsuit seeks a legal injunction to stop a party from using a patented process or item. The lawsuit also seeks damages for infringement.
Your rights depend on several factors, including the status of your patent. Enforcing patent rights requires legal counsel. You need a lawyer to advise you of your patent rights and to take the legal steps to stop patent infringement.
How Long Does a Patent Last?
Patents granted by the USPTO are effective only in the United States and possessions and territories of the United States. A patent holder would need to apply for and obtain patents country-by-country (or by region, if available) if they want worldwide coverage for their patent.
The lifespan of a patent depends on the type of patent and when the patent was filed. Generally, fixed terms for patents are:
Utility Patents – These patents have a term of 20 years from their earliest effective, non-provisional filing date. Maintenance fees must be paid 3.5, 7.5, and 11.5 years after the USPTO issues the utility patent. The patent expires after 4, 8, or 12 years if the fee is not paid.
Design Patents - The term of a design patent is 15 years from the issuance date.
Plant Patents – The term of a plant patent is 20 years from the issuance date.
A patent cannot be extended once the patent expires. However, a patent holder could patent an improvement on the original patented invention or patented process. However, the new patent only protects the new process or invention. Other parties can copy the original product or process when the patent expires.
Contact Our Maryland Business Attorney for More Information
Patent law is a specialized practice. Contact Steve to discuss how our Maryland business attorney can help you protect your intellectual property by filing patents, trademarks, and copyrights.
