The question “is the invention patent protected?” and the phrase “patent protection” comes up frequently with startups but is oftentimes misunderstood. Patent protection implies that you have a patent that you can assert against others. But, that is not always the case. Patent protection could refer to an invention that is merely patent pending.
Let’s define the full scope of the meaning of “patent protection.”
Patent protection means that the invention is patent pending or patented. Patent pending simply means that the inventor has established a priority date for their invention. With enforceable patent type patent protection, the inventor has an enforceable right to seek damages and an injunction against infringers.
Patent protection could mean one thing to the inventor and another to the patent attorney. As such, it’s important to be clear about which meaning you are referring to and not rely just on the context of the discussion.
What is patent pendency type patent protection?
One meaning of “patent protection” refers to whether the invention is patent pending. This type of protection is referred to as patent pendency type patent protection.
Patent pending does not mean that the invention is patented. The inventor can’t sue anyone for patent infringement to seek damages and an injunction. Rather, patent protection when it refers to patent pendency only means that the invention has established a priority date for the invention.
The priority date can valuable. Between two inventors for the same invention, the one with the earlier priority date won the race to the patent office and is awarded the patent.
Moreover, the priority date gives inventors the confidence to publicly market the product knowing that someone can’t file a patent application later on to steal away the patent rights.
What is an enforceable-patent type patent protection?
Enforceable-patent type patent protection refers to a patented invention. In this situation, the inventor has established a priority date for the invention as of the filing date of the patent application. The inventor also has the right to seek compensation for damages and an injunction after the patent grant date.
Misuses of the phrase patent protection
Inventors and patent attorneys might say that the invention may not be eligible for patent protection when discussing software invention. You can still file a patent application and secure patent pendency-type patent protection even if an invention is ineligible for patent protection. However, what the attorney means is that the software may be deemed the type of invention on which the government will not grant a patent on.
Inventors and patent attorneys might also say that you are seeking patent protection. This could mean either patent pendency type patent protection or enforceable patent type patent protection. You need to look at the context or ask clarifying questions to determine the meaning of the phrase patent protection.