What is a patent? A patent is a “right to exclude others from making, using, offering for sale, selling” the invention in the United States or “importing” the invention into the United States. The USPTO grants the right to inventors for novel and nonobvious inventions. The patent term for a utility patent is 20 years and 15 years for a design patent. Thereafter, the patent expires, and the invention is dedicated to the public.
Purpose of the patent system
The purpose of the patent system is to promote the progress of science.
The Congress shall have the 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.”
How does the patent system promote the advancement of science?
The patent system is similar to a quid pro quo. The inventor discloses the invention to the public. Inventors must teach others how to make and use the invention. In exchange, the government grants a time-limited monopoly. The federal government grants inventors the right to exclude competitors from competing against them for a limited period. After the patent expires, the public can use the invention.
The Federal Circuit has previously stated “The system of patents is founded on providing an incentive for the creation, development, and commercialization of new technology—“to promote the progress of science and useful arts”—achieved by providing a period of exclusivity while requiring disclosure of new technology.” Fresenius U.S., Inc. v. Baxter Int’l, Inc., 733 F.3d 1369, 1382 (Fed. Cir. 2013).
By doing so, the body of public knowledge grows over time. Otherwise, the fear is that instead of publicly disclosing the invention, inventors would withhold their inventions and keep them secret for as long as possible. The patent system encourages inventors to make their inventions known sooner than later.
Types of patentable inventions
1) Utility patents are “granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;”
2) Design patents are “granted to anyone who invents a new, original, and ornamental design for an article of manufacture;” and
3) Plant patents are “granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”
To find out if your invention can be patented, read my articles on:
- Can I get a patent for my invention? In this article, I explain the four legal requirements to get a patent.
- Can you patent [BLANK]? In this article, I review 32 different types of inventions. You can see where your invention fits.
Right to exclude vs. right to make
A patent grants to inventors the right to exclude, not a right to make. More particularly, “the right conferred by the patent grant is, in the language of the statute and of the grant itself, ‘the right to exclude others from making, using, offering for sale, or selling’ the invention in the United States or ‘importing’ the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.” See, General information concerning patents.
The right to exclude gives inventors the right to sue others who compete against the inventor. For example, the inventor can stop others from making, using, selling, offering for sale, or importing the same invention into the United States.
The right to exclude is not a right to make. Just because you have a patent, does not mean that you can make your invention. If someone else has a broader patent than you, then the other inventor can sue you for patent infringement.
You read that right.
The patent right is a negative right, a right to exclude. As such, if a first inventor has a broader patent than a second inventor for the same product, then the first inventor can stop the second inventor from competing against the first inventor.
If the patent was a right to make, then the first inventor wouldn’t be able to stop the second inventor.
But, the patent right is not a right to make but a right to exclude.
Patent rights are territorial
The right to exclude is territorial. If the USPTO grants you a patent, then your patent right is only enforceable in the United States.
This principle applies to the patents granted by other countries. If someone in China copies your patented invention, then they are not violating your U.S. patent.
However, if they import the patented invention into the U.S. then they are violating your patent rights. Your patent rights give you the right to stop others from importing the patented invention into the United States.
“An inventor who wishes patent protection in other countries must apply for a patent in each of the other countries or in regional patent offices.” See Protecting intellectual property rights overseas.
The patent rights give the patent owner the right to exclude others from:
- Offering to sell
- Importing the invention.
The patent right gives inventors the right to prohibit a wide range of activities. As a result, inventors can sue companies throughout the channel of distribution from the manufacturer, down to the distributor, retailer, and end-user.
What is the difference between a patent and a trademark?
A patent protects technical inventions, whereas a trademark protects a word, phrase, design, or combination that identifies the source of the goods or services. See, Trademark, patent, or copyright. As long as the proposed trademark can indicate a source of the goods or services, the word, phrase, design, or combination can be a trademark. All types of things can be a trademarked. For example, Coca-Cola’s bottle shape, Tiffany’s blue-colored box, and the Microsoft boot-up sounds are trademarks that identify the company behind the product or service.
An overlap exists between patents and trademarks. For example, design patents and trade dress rights can protect the way a product looks.
- For an in-depth explanation of the distinctions, read my article: Four types of intellectual property you can use to protect your idea and how to use them.
What is the difference between a patent and a copyright?
A patent protects inventions, whereas copyrights protect artistic, literary, or intellectually created works. See, Trademark, patent, or copyright. If the person created the work of authorship, then it is copyrighted.
What is the difference between a patent and a trade secret?
A patent protects inventions, whereas a trade secret protects information that has economic value by virtue of not being generally known and the owner takes reasonable efforts to maintain its secrecy. See, Trade secrets / regulatory data protection. A patent makes the information known publicly. For information to be considered a trade secret, the information must be secret. Otherwise, the information is no longer a trade secret. As such, ideas can’t both be patented and protected as a trade secret, at the same time.
How are patents used in business?
A patent can be:
- used to gain entry to a market;
- used to exclude others from a market;
- used as a marketing tool to promote unique aspects of a product; and
- sold or licensed, like other property.
- To read an in-depth article on how patents are used, read my article: How to use patents to make money?
Do you need a patent?
You need a patent to stop your competitors from copying your invention. However, you do not need a patent to make your product. The patent does not grant you a right to make the patented invention as discussed above. It only grants you a right to exclude others.
In general, a patent is beneficial. You don’t always need a patent. However, a patent can be helpful when your competitors begin to copy your idea. You can use the patent to stop them from such behavior. Sometimes, depending on your goal, a patent may be necessary.
Let me explain.
A patent is not needed to make a product. The patent will not guarantee that you are not infringing on another patent owner’s rights. The patent only indicates that your invention is novel and nonobvious.
However, if you are trying to compete against larger companies, the patent acts to level the playing field against large companies. As a start-up, a small company has fewer resources (talent, money, and time) to compete against large companies. However, a patent gives you the right to stop large companies from competing against you.
Yes, they might have a larger budget to fight a legal fight. However, if damages are significant, you should be able to find a contingency fee patent litigator to take on your case.
- To see if your invention is worth patenting, read Is a patent worth it?
How to get a patent?
To get a patent, you need to submit a patent application with the United States Patent and Trademark Office. However, you will need to get a few things done before you are ready to submit the patent application. I recommend that you complete the following seven (7) free or low-cost steps before you spend any significant amount of money.
If you need assistance, please schedule your consultation.