Intellectual Property Law Basics

Part 2: Patents

Patents apply to most things we usually think of as “inventions,” including, in some cases, offerings incorporating software. In the U.S., patents are administered by the Patent and Trademark Office (often abbreviated as the USPTO). While just about every country in the world has its own patent system, and different subject matter may be patentable in different countries, here’s what the U.S. Code says about patentable subject matter:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor…”

Under this definition, a wide range of different types of subject matter may be covered by patents. The scope of a patent is determined by claims found at the end of the patent, and generally prepared and prosecuted by a patent attorney who is (in addition to being a member of a state bar) licensed to practice before the USPTO.

There is also a sub-type of patents called “design patents” that covers the ornamental designs of products. Instead of a group of claims, a design patent relies on its drawings to define its coverage. If you’ve got a product concept that relies heavily on its unique look and feel for differentiation in the marketplace, a design patent is often a good thing to have.

A patent gives the owner the right to bring someone into court for patent infringement, and that’s it. Thus, standing on its own, a patent gains its greatest financial value if its owner is capable of bringing infringers into court. Suing someone for patent infringement is an expensive and time-consuming proposition. A patent is often considered a “contract with the government,” in that for explaining the full nature of an invention, the inventor is granted a period of exclusive use of that invention.

On a per-invention basis, patent coverage is usually the most expensive type of IP to acquire. Of the four basic types of IP, patents generally offer the broadest protection to an owner, because claims can be construed rather broadly if they are prepared and prosecuted carefully. Patent applications generally take two to three years after filing to mature into patents. So, compared to other types of IP, patents are relatively slow-moving and expensive, but they can be quite powerful.

Patents usually last for 20 years after the date of filing, if maintenance fees are paid on time.

The field of patent law is immensely complex, with a lot of rules and caveats and unexpected wrinkles. The information presented here is a good overview of the basics. Future pieces here will cover things more thoroughly.

This article is part of a five-part series. Read Part 3 here.

This is provided for information purposes only and does not constitute legal advice. If you have questions about any of these topics, you should consult with a lawyer.