PATENTS - Legal Rights for Inventions
What is a Patent?
Patents give the owner the right to exclude other parties from: making, using, selling, offering to sell, or importing an invention. Exclusive rights in the invention begin when the patent is granted by the U.S. Patent and Trademark Office and expire 20 years after the application for the patent was filed with the Office.
Inventions that can be patented include machines, manufactured products and materials ranging from chemicals to computers, and processes. Every kind of applied technology can be patented, but scientific principles and naturally occurring materials are not patentable.
The owner of a patent may be the inventor, the inventor's employer, or someone who has purchased the rights from the inventor or the employer. Most patents are owned by companies, inventors, or universities. Owners may manufacture themselves, or they may license another party to manufacture and pay the owner a royalty.
Incentives for New Technology
Patent laws, along with copyright laws, were among the earliest laws passed by the First Congress in 1790. Patents and copyrights are authorized in the U.S. Constitution to "promote the progress of science and useful arts." The possibility of patent rights gives incentives to inventors and their employers to create new technology and to invest in commercializing technology. Policy makers have generally agreed that the American tradition of strong patent laws has contributed to making this country the world's technological leader, a position it has held for more than a century.
Dissemination of Technological Information
A patent applicant must give the Patent and Trademark Office a written description of the invention that is adequate to enable a person skilled in the field to make and use the invention. This description is called the "specification."
When the Office grants a patent, the specification is published and disseminated widely to inventors and industry to spur additional research. The Patent and Trademark Office is one of the world's largest libraries of technological information, with more than 25 million documents.
Obtaining U.S. Patents
In order to be eligible for a patent, an invention must be "new", and it must be sufficiently different so that it is not "obvious" to a person skilled in the field. An invention is not new if it has already been invented by someone else, or if it has been made public more than one year before the patent application is filed. This one year period in U.S. patent law is called the "grace period."
The U.S. Patent and Trademark Office has a staff of scientists and engineers -- patent examiners --who examine each application to determine whether the invention meets the criteria for obtaining a patent. On the average it takes about two years to obtain a patent after the application is filed. Most applicants hire a patent attorney to file their application and obtain the patent. Patents include "claims" that define the scope of coverage of the patent. The U.S. grants more than 100,000 patents a year.
Obtaining Patents Abroad
A U.S. patent gives exclusive rights only within the United States. Treaties also give Americans the right to apply for patents in other countries, and give nationals of those countries the right to apply here, but patents must be obtained separately in each country, for the most part.
Foreign patent laws differ from U.S. law. Most countries do not afford the one year grace period of U.S. law, which means that a foreign patent cannot be obtained if the invention was made public anywhere in the world even one day before the first patent application is filed. It is very expensive to obtain patents in foreign countries, but efforts are being made to reduce the cost of foreign patenting.
Enforcing Patent Rights
Patent owners can sue in federal court to stop unauthorized parties from practicing the patented invention. Unauthorized parties are "infringers." A successful lawsuit also may give the patent owner monetary damages.
A suit cannot be filed until the patent has been granted by the Patent and Trademark Office. Products that are covered by a patent often are marked with the patent number. Patents are numbered consecutively; more than 5 million have been granted. When a patent application has been filed, products often are marked "PATENT PENDING" or "PATENT APPLIED FOR" to warn competitors that a patent may be granted, but rights do not begin until a patent is granted and rights are not retroactive.
Other Information
Inventors should obtain advice from knowledgeable sources before spending money on marketing or patenting their inventions. Novices should be wary of promoters who claim to have the ability to sell or license inventions to industry on behalf of inventors, especially if the promoter wants to be paid in advance.
In addition to patents for inventions, which are sometimes called utility patents, patents can be obtained for ornamental designs of manufactured articles and for living plant varieties.
Intellectual Property: Products of the Mind
"Intellectual property" is a term used to describe intangible creations of the human intellect that are protected by law. Patents are intellectual property rights.
Other intellectual property rights include copyrights, trademarks, and trade secrets.
COPYRIGHTS protect literary and artistic works, such as books, papers, photographs, art, music, movies, recordings, and software. Copyrighted works, sometimes identified by the symbol ©, may be registered with the U.S. Copyright Office in the Library of Congress.
TRADEMARKS, also called brand names, are words, designs or other symbols that identify and distinguish products and services. An ® denotes a trademark that is registered with the U.S. Patent and Trademark Office.
|