Protecting Patent Rights

Article I, § 8 of the United States Constitution authorizes Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Congress has created two sets of laws to implement the object of this provision: copyright laws protects original works of authorship and patent laws protect original inventions. These laws allow creators of intellectual property such as inventions and works of authorship to protect their rights to property that is not susceptible of being secured under lock and key, particularly when such creations often have little utility until they are sold or distributed or used to make products that may be sold or distributed.

The United States Patent and Trademark Office

The government agency responsible for overseeing the patent process is the United States Patent and Trademark Office (USPTO). The USPTO examines applications and grants patents to inventors whose applications meet the requirements. It maintains and makes available information, including issued patents and applications that must be researched to ensure that an invention is new and that another inventor does not already have a patent right in the invention to be patented.

New and Useful Inventions

Types of things that may be patented are new and useful inventions that can
be classified as machines, articles of manufacture, compositions of matter,
processes, or any combination of those things. This type of invention is eligible
for a type of patent called a utility patent and represents the common understanding
of what a patentable invention is. An idea may not be patented, even if it
as an idea for a tangible thing such as a machine. Accordingly, detailed specifications
and descriptions for a machine or other invention must be set out in a patent
application. Other things that may not be patented are laws of nature, physical
phenomena, and types of intellectual property that are protected by copyright
or trademark law.

Design Patents and Plant Patents

Two other types of patents are available that protect ornamental designs for articles of manufacture, called design patents, and those that protect certain types of plants, called plant patents. In order to be eligible for a plant patent, a new plant must not be a tuberous plant such as a potato and must be asexually reproduced. Utility patents and plant patents have a term of 20 years, whereas the term of a design patent is 14 years.

Requirements for a Patent and the Application Process

A patented invention must be useful and must be new. USPTO rules provide what constitutes new and preclude the patenting of things that have already been patented, have been sold or in use, or have been described in any publication before they were supposedly invented by the person seeking to patent them. USPTO rules also require that, once the creator of a truly new invention describes it publicly or puts the invention into use, he or she must apply for a patent within one year. Failure to do so will cause the inventor to lose the right to obtain a patent and the invention may then be used, made, or sold by anyone.

Another requirement for a patent is the non-obviousness of an invention. This requirement particularly applies to improvements of existing inventions and prevents the patenting of the substitution of a different material for an invention or patenting a new size of an existing invention. Obviousness is measured not from the point of view of the layman but from that of a person of ordinary skill in the area of technology within which the invention is classified.

Inventor must Apply for a Patent

Only an inventor may apply for a patent. If the inventor is deceased or incompetent, the inventor’s guardian or the representatives of the inventor’s estate may apply for a patent. In addition, if an inventor refuses to apply for a patent, another person with a proprietary interest in the invention may apply for a patent.

An ordinary patent application is called a non-provisional application. In addition to personal information of the applying inventor, a patent application must include a detailed description of the item or items for which a patent is sought, which are referred to as the inventor’s “claims,” and an oath or declaration that the inventor believes himself or herself to be the original inventor of the item or items to be patented. Additional statements required by law must also be included in the oath or declaration. Depending upon the subject matter of the application, detailed drawings will most likely be required.

Patent rights

Although applications are often rejected as first filed and need to be amended in order to meet all requirements for a patent, the USPTO eventually approves two-thirds of all patent applications. A patent is a property right in the patent holder giving him or her the right to prevent others from using, making, or selling the invention without permission. A patent may be sold, transferred, assigned, and mortgaged, or treated in any way that property may be treated; thus, although the inventor is required to apply for a patent, once the patent is issued someone else may own the patent or become the patent holder.

Patent Holder’s Permission Required to Build or Use Patented Invention

One of the most misunderstood aspects of patents, is that a patent does not
allow an inventor to acutally practice (make, use or sell) the invention.
A patent only grants the exclusive right to stop or sue someone for building
or using a patented invention without the
permission. Someone who makes, sells, or uses a patented invention without
permission is said to have infringed the holder’s patent rights, and a lawsuit
may be brought for an order that the activity cease and for any monetary damages
that may have been incurred for lost sales or other injury. An exception to
this rule exists in that the federal government may use a patented invention
without permission; however, the holder is entitled to compensation. A patent
holder whose rights have been infringed should consult an attorney, as the
USPTO has no jurisdiction over patent disputes.

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