How do patents protect inventions? They create a government-sanctioned 20-year monopoly. This is a restraint of trade, but a valuable one for the patent owner. Additionally, patents increase the cost of goods. Moreover, they limit the competition and availability of a product or service. With this in mind, why would the government grant patents? It is because they foster innovation.
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Patents Promote Progress
The term patent is the opposite of latent (to conceal). The purpose of the patent system is to disclose new technologies. From that disclosure, others make improvements. Consequently, technology advances at a faster pace. Additionally, patents protect investments. For example, new drugs often cost billions of dollars to develop. Hence, without patents, these discoveries would not be made. As a result, this is why the government enables patents to protect inventions.
Steps to the Patent Process
Time frame (fast track): 180 days
Steps to Obtaining a Patent
- Identify your invention.
What exists now is called the state of the art. An invention necessarily extends beyond the state of the art. That is the improvement.
- Ask if the improvement valuable.
Some improvements are not worth patenting. Is the improvement a desirable or “must have” feature over the competition? Alternatively, will having a “patented” product simply provide marketing value to sales?
- Disclose the invention to your patent attorney.
A detailed disclosure is necessary. It must teach “one of ordinary skill in the art how to reproduce the invention without undue experimentation.”
- File the patent application.
For utility patents, there are two tracks: (1) accelerated; and (2) normal. For an accelerated track, the process started in about 3 months. By contrast, a normal track will take at least 14 or more month.
- Expect an initial rejection.
Patent examiners typically reject the application on the first go-around. However, an experienced patent attorney can “read between the lines.” Consequently, they will quickly know if there is an easy solution to get the patent application approved.
- Amend and/or respond to the patent examiner.
The goal is to put the patent application in a “condition for allowance.” This frequently involves amending the patent claims. The patent claims define what the invention covers.
- Pay the issue fee upon allowance
When the patent examiner approves the patent claims, he or she sends a “notice of allowance.” An “issue fee” is paid.
- Receive the original patent.
Patents are granted every two weeks (bi-weeks). The original patent will be mailed to you. Mark your products and services with the patent number.
- Pay maintenance fees.
To keep a patent alive over the twenty year term, fees are paid at 3, 7 and 11 years after the patent grants.
How Patents Enhance Revenues
Patent rights are a valuable business asset. Moreover, licensing agreements with third parties, or even competitors may result in significant royalties. Licenses grant rights specifically for certain periods of time or for only certain geographical locations. Companies often sell patent rights outright. Furthermore, they frequently donate them to educational institutions, such as a local university, for tax purposes. A patent portfolio increases the overall value of a company.
Patents Provide Marketing Value
The “patent pending” designation or a patent grant are effective marketing tools. Ask yourself, how do customers choose your product or services over your competition? Secondly, how do you communicate to your customers that your products or services are superior to your competitor’s? To this end, your patent portfolio inspires confidence in your customer’s purchasing decision. Consequently, your company becomes a nationally recognized contributor to the advancement of your field. By and large, the grant of a patent is often newsworthy. Moreover, it attracts positive attention to your company.
Basis for Patent Protection
The Constitution gives Congress the power to enact laws relating to patents to protect inventions:
“Congress shall have 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.”Article I, Section 8, United States Constitution.
Under this power Congress enacted various laws relating to patents. Following the Constitution, Congress enabled the first patent law in 1790. The law now in effect is a general revision of July 19, 1952, and which came into effect January 1, 1953. Whereas, it is codified in Title 35, United States Code.
The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. Furthermore, the law appoints the Patent and Trademark Office to administer the law relating to the granting of patents.
Twenty Year Patent Term
A patent for an invention is a grant of a property right by the Government to the inventor. The term of the patent shall be 20 years from the date on which the application for the patent was filed. The right conferred by the patent grant extends only throughout the United States and its territories and possessions. However, during this term, a patent gives an exclusive monopoly to the patent owner to practice the claimed invention. A patent typically takes anywhere from 6 months (for accelerated applications) to 2-3 years from filling to allowance.
Patent Rights Conferred
Patents protect inventions with a simple grant. Specifically, “the right to exclude others from making, using, offering for sale, or selling” the invention or “importing” the invention into the United States. Patents do not confer the right to make, use, offer for sale, sell or import. Rather, it is the right to exclude others from making, using, offering for sale, selling or importing the invention. The patent law specifies the general field of patentable subject matter. Specifically, any person who:
“invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,”35 U.S.C. § 101
The word “process” is an act or method, and primarily includes industrial or technical processes. Additional terminology includes:
- Machine used in the statute in short needs no explanation.
- Manufacture refers to articles made, and includes all manufactured articles.
- Composition of matter relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds.
This includes practically everything made by man and the processes for making the products. However, a notable exception exists. Specifically, the Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.
The patent law requires the subject matter be “useful.” In reality, this also includes operativeness. In other words, a machine which will not operate to perform the intended purpose is not useful. Therefore, it is unpatentable. A mere idea or suggestion is insufficient. Hence, a patent requires a complete description of the actual machine or other subject matter.
FAQ How Patents Protection Inventions
Probably not. In the United States, you typically have a one year grace period to file your patent application or the invention is in the public domain.
Not as a general rule. However, you must describe it in sufficient detail so it can be reproduced by someone with the required skill level.
A utility patent protects the function of an invention. A design patent protects its appearance.
No ethical attorney can guarantee a patent will grant. More important to ask is whether the patent is commercially valuable. It is relatively easy to obtain a patent by including many claim limitations. However, few if any competitors would infringe such a narrow patent. We call those patents “expensive wallpaper.” Obtaining a commercially viable patent that is valuable and enforceable separates the quality of patent counsel.
For accelerated utility patents, the process can take as little as 4-5 months. Accelerated design patents are sometimes granted in 3-4 months. However, for normal processing, it is common for patents to take 2 or more years.
In conclusion, patents protect inventions through a legal monopoly. However, this monopoly requires the detailed disclosure of the invention. Consequently, future innovations build upon this disclosure and technology advances.