A patent is a set of the exclusive rights granted to an inventor that excludes others from making, using, selling, or distributing the patented invention or discovery. An invention can take one of three forms: a utility patent, a design patent, and a plant patent. A utility patent includes the invention or discovery of any new and useful process, machine, article of manufacture, composition of matter, or an improvement of any of these things. A design patent protects the appearance of a manufactured object, and a plant patent protects the asexual (without seeds) reproduction of a new plant variety. Patents can include:
Machines and Machine Parts
Computers and Computer Software
Furniture and Fabric Design
Patents, unlike copyrights and trademarks, are not obtained immediately after creation or use. Patents must be filed with the United States Patent and Trademark office within one year of making the invention public. The patent application must include the description of the invention or discovery, which should give all background information, uses, and any figures, if necessary. The application must also include the claims for which the inventor is filing. The claims are the specifics of the invention that make it new and unique, and explain what an infringement might entail.
The U.S. Patent and Trademark office will review the application and administer a four-pronged test to determine if the invention qualifies for a patent. First, the invention must be of something that can be legally patented. Second, the invention must be “novel.” This means that it must be completely new, or different than other similar inventions already in existence. Third, the invention must be “non-obvious.” An invention is non-obvious if a skilled person in the field of the invention determines it to be unexpected. Lastly, the invention must be useful.
Once these requirements are all met and approved, the patent will be published usually no earlier than 18 months of the original filing date. An additional fee must be paid when a patent is granted. The inventor must put the word “patent” and its number on the invention.
Up until the time the patent is granted, an invention can be accompanied by the phrase “patent pending.” Although there are no legal implications of this phrase, it is often used to make their patent application known and to discourage possible competitors or infringement.
Often times, inventors make money on their inventions by licensing their patents for others to manufacture and distribute. By licensing the patents, the licensor will receive royalty fees from a licensor. Depending on the invention, royalties are usually in the range of 2%-10% of revenues from the sale of the invention.
Patent holders can also assign their patent. This means that they completely sell their patent to another party who will manufacture and sell the invention. Rather than pay royalties, the assignee will pay a larger one-time fee (or installments) to the original patent holder.
A patent infringement occurs if another party sells, distributes, manufactures, uses, or offers for sale an already patented invention without permission. The infringement must be referenced to in the claims portion of the patent publication. In order for an infringement violation to be upheld, it must include all of the elements of the claim that is at issue.
If the infringement is upheld, the infringer will most likely be ordered to stop selling or using the invention. Furthermore, they may be forced to pay damages to the patent holder for losses incurred as well as punitive damages if the infringement was intentional.
Because patent cases are very expensive, most are settled out of court with the help of patent attorneys.