Patents in the US: Definition, Types, Pros and Cons

The feature originally appeared at https://lawless.tech/patents-in-the-us-definition-types-pros-and-cons/

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In our hi-tech world, it’s seemingly easy to create something new and disruptive. Still, nobody wants to see their inventions counterfeited or used without any compensation or respect to the author. Here’s where patents come in handy: they are able to protect your intellectual efforts and possible profits stemming from them. But some say that they are the reason why the technological advancement is so slow. So, what are they all about? Are they good or bad? This explainer piece may shed some light on the issue.

What is a patent?

Simply put, a patent is a set of exclusive rights granted to the patentee (an inventor, their heirs or assignees) for a limited time. A patent gives the patentee the right to exclude other entities from manufacturing, using, offering or selling the patented invention, or the products manufactured using the patented process or technology, at least without the author’s consent.

Typically, a patent implies a publicly disclosed detailed description (along with schemes, blueprints, etc.) of the invention in question. When the term of a patent expires, the invention enters the public domain, and becomes available to everyone.

In the US patents are granted and supervised by the United States Patent and Trademark Office, and the patent law is specified in Title 35 of the United States Code. On the International level, patents and respective laws (such as Paris Convention for the Protection of Industrial Property, Patent Cooperation Treaty, Patent Law Treaty etc), are supervised by the World Intellectual Property Organization (WIPO).

What kinds of patents are there?

The US patent law implies three main categories of patents: utility patents, design patents and plant patents.

Utility patent is a patent granted to new and useful machines, manufacturing technologies and processes, chemical compounds, etc. Patents in this category are typically eligible for up to 20 years as of the moment of filing the patent application. For example, a utility patent can be granted to a new and useful software and hardware, chemical processes and formulas, new kinds of medical drugs, etc. And even good old TP is no exception.

Design patent is a patent granted to new and original design elements and overall design of a manufactured object. Design patents are typically eligible for up to 14 years from the moment of patent issuance. Everything related to external design and aesthetics falls in this category: jewelry design, ornaments on your gadget’s surface, fabric design, furniture, etc. For example, one of the most recognizable pieces of toy design, the Lego minifigure, was patented back in 1979.

Plant patent, probably the least obvious one, is a patent granted to new distinct species of plants created in a way mother nature never intended. This means that the new plant should be produced by grafting, genetic engineering, or other methods that do not include growing a plant naturally from a seed. Plant patents are typically eligible for up to 20 years from the moment of filing the patent application. Notably, a “new and improved variety of avocado” was patented by Rudolph G. Hass in 1935.

What do you need them for?

Generally, you need to have a patent to protect your intellectual property from being used and sold by others without your permission. A patent also allows you to authorize others to use, manufacture, and sell your invention in exchange for royalties. And, finally, a patent gives you legal grounds to show off your invention at every party you attend.

Note, however, that once the patent term expires, others may legitimately use and sell your invention without infringing your rights. And show off at parties just like you did.

What happens if someone uses patented inventions without permission?

Speaking of infringement, if someone violates your intellectual property rights during the term of the patent in question by manufacturing your invention or using your patented technology without your explicit consent you can sue the perpetrator, demand them to cease the production, and ask for a reimbursement that is “adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer.”

It is important, however, that such rights are not self-enforcing. As a patent holder, you would have to initiate the enforcement by taking legal action. For example, Apple is continuously suing Samsung for violating several patents related to their iconic iPhone devices.

Are patents impairing the progress or protecting it?

The short answer is “mostly the former”. For example, if you’ve developed a nifty little piece of code it would take a significant investment of time and money to get it patented. On the other hand, you might put the same time and money into your software to improve it, release the source under Creative Commons or other open source license to allow others to work on it, and therefore use it for the common good.

However, if you decide to get your invention patented, it’s up to you to develop it further and persuade the rest of the world that your product or process is useful. On the other hand, as the inventor, you will be able to oversee the development of your product and direct it towards the ultimate goals you’ve set for it. And build a multi-billion business in the process. And then show the hell off at the parties, of course.