What is a Patent? 

In the United States a Patent is a property right granted by the government for a limited period of time to an inventor “…to exclude others from making, using or selling the invention…”.  In exchange, the Inventor must allow the idea to be published.  Most Patents are granted for new inventions in the areas of electrical, mechanical, chemical, biochemical, and computer sciences.  United States law allows patenting of new business methods to stimulate competition. 

United States Patent Law

Introduction

A Patent in the United States is a grant of rights formalized by an official document issued by the United States Patent Office as provided in Article 1 Section 8 of the Constitution of the United States: Congress shall have the power, “… 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.”

Under the patent law now in effect, patent rights are available for novel, useful, nonobvious inventions sufficiently disclosed in the patent application to enable those of ordinary skill in the art to make and use the invention.

Patent rights are further defined in Title 35 of the United States Code The patent grant gives the owner of the patent the right to exclude all others from making, using, or selling the invention defined in the claims of the patent within the United States, its possessions, and territories. In exchange for these rights, the patentee is required to disclose the invention in a patent application in sufficient detail to enable those of ordinarily skill in the art to make and use the invention. Upon expiration of the patent, the patentee loses the exclusivity and the public is free to use the invention.

In exchange for the grant of patent and exclusive use for a period of time, the applicant is required to disclose the invention sufficiently to enable those skilled in the art to make and use it. Indeed, the grant of patent rights by the government is an inducement to disclosure to increase the sum of available knowledge and reward the inventor.

Scope of Patent Rights

The right obtained through a patent grant is the right to exclude others from making, using, and selling a patented invention. The rights granted by a patent are defined in the patent claims as present in the patent document and interpreted upon enforcement. Patent rights are territorial, limited by the boundaries of the granting country, so counterpart foreign patents must be obtained to protect an invention outside of the United States.

Licensing of Patent Rights

Patent licenses are commercially important, follow traditional contract principles, but can vary and be adapted by the parties.

Contrast with Trade Secrets

Trade secret protection ends upon public disclosure of the “trade secret.” Patent protection, on the other hand, can only be obtained through public disclosure, i.e., the grant of a patent. Consequently, patents can protect intellectual property disclosed in use for 20 years from the earliest application date. Patent law is an alternative way to protect intellectual property that could be held as a trade secret, e.g., a product or process not disclosed by use. Accordingly, a comprehensive patent program is critical to protection of intellectual property. The patent program should be designed as the cornerstone of the intellectual property program, complemented by a trade secret program.

Design and Utility Patents

There are two types of patents of general commercial importance for protecting intellectual property – utility patents and design patents.

Utility Patents > Utility patents are granted for any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement of these items. Since the passage of the America Inventors Protection Act (AIPA) patent applications are generally published at 18 months after filing. After the patent is rigorously reviewed by an Examiner in the Patent Office, a patent may be granted generally for a period of 20 years from the earliest application date.

Design Patents > Design patents cover the appearance of an article of manufacture. Design patents filed on or after May 13, 2015, may be obtained on any new, original, and ornamental design for an article of manufacture, for the term of fifteen years.

U.S. Patent Grant Prerequisites

Patents are only granted after examination in the United States Patent Office to ensure that the prerequisites of Title 35 of the U.S. Code are met, including:

35 USC §101 Patentable Subject Matter – the invention must be within one of the four categories of patentable subject matter: a process, machine, manufacture, or composition of matter, and not comprise a law of nature, physical phenomena or abstract idea.

35 USC §102 Novelty – The invention must not have been previously invented by another person, and must not have been published, in public use, or on sale for more than one year prior to the filing of the application for patent.

35 USC §103 Non-obviousness – The invention must not have been obvious to those of ordinary skill in the art at the time the invention was made.

Enforcement:

Relief in patent litigation includes

• preliminary injunctive relief barring manufacture, use, and sale during the lawsuit;
• money damages after trial on the merits;
• permanent injunctive relief for the life of the patent after trial on the merits;
• increased damages and attorney fees in exceptional cases.

Patent infringement suits can only be brought in the United States Federal Courts. Money damages and injunctive relief, as well as attorney fees in certain cases, are obtainable by a successful claimant. A patent may also be asserted against a foreign importer to obtain an exclusion order in proceedings before the United States International Trade Commission.