Patent law is part of intellectual property law and controls what inventions qualify for patents, the patent application process, and how patent infringement is handled.
If you want to get legal protection for your inventions, you should understand the basics of patent law. It may also benefit you to have some knowledge of overall intellectual property law, the background of patent law, what requirements an invention must meet before it qualifies for a patent, and some of the issues that make patent law difficult to navigate.
What Is a Patent?
A patent is a property right that gives an inventor the legal ability to stop others from making, using, or selling an invention for a certain amount of time.
There are three distinct types of patents:
Inventors may also submit a provisional patent application, which enables the inventor to label an invention as "patent pending" to warn away anyone who might want to copy the invention. You are also allowed to say that an invention has a patent pending if you have filed a non-provisional, or regular, patent application — even if the application hasn't been approved yet.
Note that patents only protect fully developed inventions, not ideas.
Before an invention can be protected by a utility patent, it must meet the following requirements:
A patent grants its holder two basic rights: the right to exclude and the right to sue infringers.
The Right to Exclude
This means that patent holder can stop others from making, using, or selling the invention. If others wish to use or sell your invention, you can either sell the patent or arrange a patent license agreement.
Note that a patent does not grant its holder the right to make or sell an invention. Other existing patents or local laws may affect an inventor's ability to use, sell, or make a patented invention.
The Right to Sue Infringers
Most patents have more than one claim. Claims are the section of the patent that lists which parts of the invention are protected. Only one claim must be violated before the patent holder can sue for infringement.
If you sue for infringement, a federal court may grant an injunction, or a strict order, that tells the guilty party to stop infringing on your patent and you may be awarded damages.
Sometimes, when the government infringes on a patent, litigation or legal processes occur through the United States Claims Court. Keep in mind that the US government can use any patent invention without asking for permission, but when this happens, the patent holder has the right to ask for compensation from the government.
The patent application process is complex. Here are some basics you need to know:
If you are not happy with the decision from the Board of Patent Appeals and Interferences, there are other options for appeals that your attorney can guide you through such as going to the United States Court of Appeals or pursuing civil action against the Director in the United States District Court for the District of Columbia.
Patent law falls under intellectual property law, which is otherwise known as IP law. IP law covers the following:
Patent law is designed to encourage innovation and protect businesses. Successfully navigating patent law can give businesses and startups a distinct advantage against competitors who might otherwise try to steal new inventions.
A patent prosecutor helps inventors get through the process of patent prosecution, which is the process of filing for and obtaining a patent. This can also include patent counseling, which is when an attorney offers an opinion on whether a certain invention could qualify for a patent.
A patent litigator deals with issues that relate to specific patents such as patent infringement lawsuits.
There are two ways in which a person might defend against a patent infringement lawsuit:
The Patent Act of 1790 began the long history of patents within the United States. James Madison, who has been called the Father of the Constitution, played an integral role in bringing patent rights to the newly formed country. The original motivation behind patent law was to "promote the progress of science and useful arts," however, patent law has evolved since that time.
Over the decades, patented inventions have played a significant role in society. For example, the cotton gin, Morse Code, and even the hula hoop were all protected by patents. However, despite all of the innovations that have been protected by patents, patent law does come with its own set of issues.
There are some problems associated with patent law that may require you to enlist the help of a patent attorney.
Concepts and Patents
In the past, there has been debate over whether a concept could qualify for a patent.
In the 1980s, a chiropractor, Robert Lech, was computerizing his office. He wanted to scan his documents into his computers. Lech's friend, Mitchell Medina, who had some experience with patent law, felt that the idea was too broad and obvious to qualify for a patent. However, a specific software program that formatted the scanned material would be much more likely to win a patent.
This was a new idea because before that, software was seldom patented and the situation presented legal challenges because software might have been considered more of a concept than anything else.
Too Many Patents
Because there are so many patents, it is difficult to innovate without risking a suit for patent infringement. Therefore, it is vital that inventors enlist the help of an attorney who has knowledge about a specific industry and who can guide the inventor through the patent process.
Broad Language in Patents
A patent battle in 2011 between Apple and Samsung illustrates another danger in the world of patent law: sometimes patents are too broad. Apple claimed that Samsung infringed on some of its smartphone ideas, but the descriptions in the patents did not seem very specific. While Apple won the lawsuit, Apple has had to battle several infringements suits in recent years.
Another famous patent battle happened in 2004 when Sony and Kodak sued each other for supposed patent infringements on components of digital cameras and camcorders. The battle ended in a cross-licensing agreement, where the companies granted each other the right to use their intellectual property.
Few Distinctions
One of the most controversial aspects of patent law is that it doesn't recognize differences between types of inventions. This is a difficult issue for industries in which innovation can take years. For example, medications often must go through years of tests before they are ready to be marketed, but a provisional patent lasts for only 12 months. This creates a weakness for the intellectual property of pharmaceutical companies.
Patents are a vital part of IP law. They protect inventions and encourage startups and large companies to come up with new ideas. They have played an important role in society since the Patent Act of 1790 first went into effect.
As the world has grown more complex, so has patent law. Some industries, such as technology and pharmaceuticals, have special challenges when it comes to dealing with IP issues. It is important that these types of companies — and really, any other sort of company — have the proper legal help when they are trying to get a patent, sue for patent infringement, or defend against infringement charges.
If you need help navigating patent law, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.