A patent is a government-granted right that allows the holder to exclude all others from making, using, or selling the registered inventions. Patents are issued to the original inventor, joint inventors, legal representatives, or guardians for a non-renewable period of 17 years. The patent grant allows the owner to pursue litigation against anyone who makes, uses, or sells the patented invention without the written permission of the patent holder. Patents can also lend prestige to a product and are sometimes secured to impress financial investors or consumers of the product.
Three Types of Patents
- Utility patents cover new inventions that serve a particular useful function, as Velcro fasteners, paper clips, and automatic transmissions.
- Design patents protect the unique design or shape of an object which is used for an ornamental or aesthetic purpose, such as a computer icon or the shape of a desk lamp. Design patents are granted for only 14 years.
- Plant patents are issued to an individual who has invented or discovered and produced asexually (from a seed) a new variety of plant, such as a flower. This patent type has been extended to include living cells or cell combinations as produced in biochemical research facilities.
The formula for determining the appropriate patent type-design or utility-is simple. Can the invention function without this feature? If the answer is yes, then a design patent is the appropriate protection.
Seven Important Points about Patents
- Patents are issued for objects or inventions, not ideas. Mental concepts and abstract ideas are not patentable. Protection for written materials and ideas is covered under copyright law while company logos and corporate marks are protected under trademark laws.
- A patent is not necessary to market an invention commercially. An inventor may make, use, or sell an invention without the benefit of a patent, provided it is not covered by an existing patent currently held by another individual.
- It is a criminal offense to use the words "patent pending" in advertising if the patent application is not active.
- If a patent is desired, an application must be made within one year from the time the invention is first commercialized, or the right to patent is lost.
- Patented products are not superior products. A patent only guarantees that the product is significantly different from others similar to it. Superiority is determined by the user rather than by the inventor.
- Until the invention is commercialized and in widespread use, the patent has little value. However, consider where Polaroid would be today if Dr. Edwin Land had not patented the company's products.
- Patent protection is only as good as the vigilance one maintains against infringers. The value of a patent lies in its offensive power, which becomes apparent when a patent holder warns a violator to discontinue the unauthorized use of the invention or risk litigation. (Unfortunately, all too often the party with the most money prevails.) In court proceedings, patent holders are certainly looked upon more favorably than violators. However, the burden of vigilance falls upon the patent holder.
Obtaining a Patent
It is safest to file a patent application before an invention is commercialized. Applications are filed with the Patent and Trademark Office (PTO) and include drawings of the invention, specifications, description, explanation of use, and a sworn declaration of origin.
Determining the patentability of the invention and meeting the requirements for application are complex processes that experts believe warrant the assistance of a patent attorney, a lawyer who has a degree in physical science or engineering. A list of attorneys and patent agents (qualified experts in patent applications and procedures who can practice before the Patent and Trademark Office but do not possess a law degree) is available in the following government publication:
Patent Attorneys and Agents Registered to Practice Before the U.S. Patent and Trademark Office #003004-00667-6, $30 U.S. Government Printing Office Washington, DC 20402 (202) 512-1800
The directions for filing application materials and the required fees are available from:
Commissioner of Patents and Trademarks Washington, DC 20231 (703) 308-4357, or (703) 557-4636 for recorded information.