Everything You Need to Know About Patents
Did you know there were around 646,244 patent applications filed in 2020? Of that number, only 388,900 were successful. That's a 60% success rate, which, on paper, looks decent. It does, however, leave 257,344 people with unsuccessful applications, and that's a lot of burgeoning inventors left feeling disappointed. The patent process is exciting, and it can mean the culmination of years of effort.
When a patent is successful, it can be an incredibly rewarding experience. It is also a daunting one, and there are a lot of steps involved that could make or break a case. How do you know what to do, and what happens when patents are granted? What rights do they give you? In this article, we'll cover everything you need to know about patents and whether they're right for you.
What Is a Patent and Why Are They Used?
There's often a lot of confusion around the difference between patents, trademarks, and copyrights. Though there may be similarities, and we'll touch on that in a moment, they are distinct entities and serve different purposes. A patent is essentially a grant issued to an inventor stating that they own the rights to the property. To qualify for a successful patent, an invention must be novel, inventive, and have some kind of industrial applicability. Within that scope, there are three different types of issued patents, and each has unique uses. These are:
No matter the type of patent you apply for, a patent grants the right to exclude others from making, offering for sale, using, or importing the invention of the patent holder. It doesn't mean the patent holder can make, offer for sale, use, or important their invention, it simply means others cannot. It can be helpful to look at an example of a real patent. Let's explore what each patent system means.
A Utility Patent
A utility patent is given to anyone who has invented or discovered a new method of doing something, invented a new machine or way to manufacture something or a method to put things together that hasn't been done before. In essence, a utility patent covers the functional uses of a device or method. Most patents are utility patents and are therefore the most commonly used.
A Design Patent
A design patent focuses specifically on how something looks. Or, more specifically, it protects the design used in the patent. Much like a utility patent, the protection offered for a design patent is determined by how we word claims in the application. However, instead of precise or technical language, a decision is made based on "clear" drawings of the design. In practice, the issue of novelty is less restrictive than the standards given to utility patents, as we live in an age where design is easily mimicked without being a direct copy.
A Plant Patent
A plant patent is perhaps the rarest of the three, but only in that it fits a very niche subject. Officials can grant a plant patent to someone who invents (or discovers) a new and distinct variety of plant. These plants must be asexually produced and must not be a tuber propagated plant, or found in an uncultivated state.
Why Are Patents Used?
We use patents simply to afford security to an original idea and to stop others from naming the invention or creation as their own. Unfortunately, the world can be cutthroat, and where there is fierce competition, there is the inherent risk of intellectual theft. A patent aims to legally protect that.
What’s in a Patent?
There's a fairly standard formula for patents, and while that may make it seem easy, the process can be far from it. We'll discuss that in more depth, but for now, let's look at what actually goes into a patent.
Descriptions and drawings
Must disclose the invention
It's also important to note that once filed to a patent and trademark office, it cannot be amended. This is simply to stop unfair advantages in the market.
What Does a Patent Protect?
In the country where the patent has been awarded, it becomes illegal for anyone other than the owner (or someone with their consent) to use the innovation in any way. Essentially, patents give innovators and inventors exclusive ownership of their inventions. Businesses or entrepreneurs particularly favor the benefits of patents in the pharmaceutical, medical, and life sciences fields. Plenty of other fields see the benefits of patents for several reasons, including:
Creating barriers for competing products
Discouraging legal battles
Enhancing the value of a company
Generating licensing revenue
Before we move on to discussing what a patent can actually do for you, it's important to note that each states patent and trademark office may have different systems, though they will all abide by the same laws.
What Rights Does a Patent Provide?
For the duration of the patent's protection, the patent owner has the authority to decide who may - and who may not - use the patented invention. In other words, patent protection prevents others from using the invention in any of the ways we mentioned above without the express permission of the patent owner. Unfortunately, patent disputes are not unusual, though most of them fall within two categories. They could be between competitors in a similar market or brought up a third party attempting to monetize the patent portfolio. A patent offers legal protection in these cases, and binding documents stating that the material belongs to you or your company.
There are some trickier cases, like in the case of prior art or works of writing, and this is more where copyright law comes into play, but there are certain things you can't patent, which could lead to more drawn-out legal concerns.
What You Can’t Patent
There is actually a lot that can't we cannot patent, though there is still legal protection available for them. According to the Patents Act, something cannot be patented if it is only:
A scientific theory, mathematical method, or other discovery
An aesthetic creation
A particular scheme, rule, or method (in relation to business, mental acts, and computers)
A presentation of information
A specific medical procedure or diagnosis
Because of the wording in the Patents Act, something that is simply an idea cannot be patented, though if there were an invention associated with it, it could be. For example, though you cannot patent certain medical procedures, if you have developed a product in the biotechnology sphere, there would be a cause for a patent application.
Are Patents Granted for a Specified Time Limit Only?
Though there are always exceptions, most United States patent applications are valid for 20 years from the date we filed the application. Most international patent applications are the same. To keep the patent valid, the owners must pay maintenance fees every three and a half years. It's also important to understand what exactly happens when a patent expires. If there has been non-payment, or we reach the time limit, then it's relatively common for the patent to be abandoned. The price to maintain a patent only increases as it ages, so it doesn't make sense for many people to keep it going. It's also important to note that a patent cannot be renewed once it has expired. The only way to extend the protection of your patent is to invent an improved version of the original and have that patented separately.
If You Have a Patent Pending, Is Your Idea Still Protected?
The short answer is no. The long answer is a bit more complicated because while your invention is not legally protected, a patent-pending notice comes with its own benefits. Essentially, when a patent application is filed but not yet granted, a product receives the label "patent pending."
This serves as a notice to the public, industry competitors, and other possible infringers that if they were to copy the idea, they may face legal action once the full patent comes into play. This is obviously banking on the fact that the patent is successful and not rejected. In many countries around the world, it is illegal to use a patent that is still pending. In America, you can sue for patent infringement if someone uses your idea without your consent. You must, however, wait until the patent is formally awarded and no longer in "patent pending" status before filing the claim.
Damages for patent infringement begin accruing 18 months after we submitted the patent application. If you can show that the infringement was willful during the patent-pending period, you may actually be entitled to triple damages. It's also possible to get a court-issued warning called an injunction, ordering a corporation to cease all product sales.
What Are Patent Rights and How Does it Work?
Remember that it's important to note that while a patent gives protection to an invention, it does not actually grant the patent owner the right to make their invention. Local or international laws dictate the right to make your invention, and that is a process that needs separate consideration. In some sense, patent laws give the right to monopoly, but it doesn't stop people from making similar products, if they are not infringing on the actual components of the original product.
The rights given under patent law differ significantly from those granted under copyright legislation. For example, patent law is far more stringent. An example of this is when two identical products are invented independently. Whether the person infringing the patent invented the same thing on purpose or not, they have no right to use the patented invention.
Copyright law, on the other hand, prohibits the duplication of ideas. Since a patent doesn't protect ideas, there's still the possibility of content being used and duplicated, even independently.
How Taking Legal Action Works
During the period of a patent, we define infringement as the unauthorized manufacture, use, import, or sale of the patented invention within the United States. The claims made in the issues patent determine the scope of this protection. So, what you put in the patent will determine how much legal action you can take if someone infringes on it. A patent will also almost always have more than one claim. Someone need only infringe on one claim to infringe the entire patent. If anyone violates a patent, the patent holder has the right to sue in federal court for damages incurred.
The patent holder can approach the court for an injunction to stop the infringement from continuing, as well as an award of damages. In such a case, the defendant may challenge the validity of the patent, which is then decided by the court. The defendant may also try to claim that their acts are not infringing. The only way we do this is by comparing the wording of the patent claims against the allegedly infringing product. If what the defendant is making (or has made) does not fall within the language in any of the patent claims, there is no case for infringement.
Patents and the Government
It's also important to note that while a patent protects your product from competitors and the public, the government can use any patented invention without the consent of the patent holder. However, the holder has rights to remuneration if this is the case. This falls within the Bayh-Dole Act.
Understanding Copyright and Its Differences to Patents
Let's start by first determining what copyright is, and the differences between a patent and a copyright. Essentially, copyright protects an author's right to profit from their work. Similar to a patent, the author or creator is granted a limited monopoly. However, unlike a patent, the copyright lasts for the entire life of the author plus an additional 70 years.
What Can We Copyright?
Copyright broadly covers original works, typically within the realm of authorship, but there is a lot of leeway in this terminology. This can include:
Musical works, including lyrics
Dramatic works, including music
Pictorial, graphic, or works of sculpture
Like patents, copyrights don't extend to ideas or processes. Just like patents, a piece of work must fall into two sets of criteria to qualify for copyright. The works must be original and produced by the intellectual effort of the author. However, while it does not need to be truly novel (as this is close to impossible), it must have a clear amount of creative authorship.
You must also present them in a tangible form, so the work must apply to something physical. For example, words on paper, paint on canvas, or a video on the internet.
What Is the Advantage of a Patent Over Copyright?
Copyrights have plenty of advantages, namely, in that they are cheaper than patents, but there is a significant disadvantage to them that we must address. A copyright protects the expression of an idea, but not the concept itself. An author may have the right to combat direct plagiarism. Let's take, for example, George Martin's A Song of Ice and Fire. He has exclusive ownership to the names of characters and places, but not of the concept of people battling over the throne.
If that were the case, we would have run out of original literature a long time ago. So, while it protects the idea, it does not protect the concept. Patents protect ideas. Even if the distinction seems minor, it's significant. An inventor may, for example, write an essay detailing a new invention.
Copyright law protects the way they have expressed their ideas, but the actual invention mentioned is not, which makes it vulnerable. A patent protects those ideas, but there must be something tangible in place to apply for a patent.
Why Do Patents Take So Long to Legally Acquire?
Moving a patent from an application to grant can be a lengthy process. It can sometimes take years, but why is that? First, because there are several complicated steps involved in the application process alone, never mind the number of people involved. Sometimes the long process is because of a backlog of applications, and while intellectual property offices around the world have invested in streamlining their processes, it can still take around 3-5 years for a patent to be formally granted. For some, the waiting period isn't a problem, but the patent-pending period can be challenging, especially because there is no guarantee they will award a patent.
With this wait also comes the potential of competitors selling their own versions or even direct copies of your work, though we have mentioned potential legal recompense for that. With that in mind, is there anything you can do to get your patent processed faster?
Speeding up the Application Process
Fortunately, there are some simple methods for speeding up the process, but even then, you're in for a bit of a wait. However, to speed the process up, you must first ensure that your application complies with any formal requirements at the time of filing. It seems like a simple step, but even one wrong document could set the entire process back. Second, make a formal request for a search as soon as possible, and a patent examination if your funds allow. This examination considers the application of your invention and if it is indeed patentable. If this exam reveals that your application does not meet the requirements, they may invite you to amend your application or further elaborate on certain points.
Third, always reply promptly to any communication from the patent office and your lawyer, ensuring you include all relevant information in your correspondence. Finally, go through your application and address any significant problems you may encounter, informing the office and your lawyer of potential hurdles. For example, if you filed a previous application or if you've filed one in multiple areas.
It is also possible to file for an accelerated examination, as long as the applicant files a petition to make special considerations. These are most applicable in cases of energy, quality, countering terrorism, biotechnology applications, and medical concerns.
How Broad Can Patent Applications Be?
If, in the sense of "broad" we're talking about vague, then not at all. An application must be detailed, informative, and deliberate at every point. However, if we consider the term broad as a definition for how much the patent can cover, then as much as you can back up with information and evidence.
This, namely, comes into play in the claims section of your patent application. This is the most important and valuable part. They can sometimes be challenging to read since they can be long sentences written in highly technical language. Every patent must include at least once claim, so it's useful to understand their scope. If your claim includes inessential features, then it is likely too narrow. A claim must be clear and concise, and it must define the terms and matter for which protection is sought. Let's put this into perspective with an example.
Let's say your patent is making a claim over vehicles with more than one tire. This is a valuable claim because it is broad and covers a wide category of uses. If your claim is over cars with four tires and two windows, then it is very specific and easy to circumvent. Anyone could make a car with four tires and three windows.
However, if the patent is too broad, and therefore not novel, the patent will not be granted. This means there must be a delicate balance between specificity, originality, and scope. That balance can be tough to manage, but it only serves as a reminder that it is important to work with a professional. If you're ever unsure of a step, wording, or process, you'll have someone to lean on.
Why You Should Hire a Professional Patent Expert Like Hollowell Patent Group
As we've seen, the patent applications process can be a daunting one, but when done right, it is well worth the effort. While it is possible to do it on your own, it will save you time, money, and energy to work with someone who knows what they're doing. A patent expert can make sure you have everything you need and help you along every step of the process. At Hollowell Patent Group, we care about your ideas and your vision. We'll work with you on every step of the journey. We also know that the process is already expensive and overwhelming. Therefore we don't charge for routine calls and updates, and our goal is to ensure high-quality service at reasonable rates. Call us today and we guarantee you'll like what you hear. All initial consultations are free.