Intellectual Property

What Does a Patent Protect?

By Brian Farkas, Attorney
What sorts of inventions can be protected through a patent?

Patents are an important form of intellectual property, which can protect certain inventions from being copied by third parties. In order to obtain a patent, one must apply for one through the U.S. Patent and Trademark Office (USPTO). What exactly is a patent, and what can it protect?

What Is a Patent?

Patent law originates directly from the U.S. Constitution. Article I, Section 8, Clause 8 provides that 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.” In other words, Congress may grant inventors exclusive monopolies over their inventions, in order to incentivize creativity and industry.

Indeed, Congress followed through on this directive via the Patent Act, which provides that anyone who "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, subject to the conditions and requirements of this title."

A patent is a grant by the federal government that allows the patent owner to maintain a monopoly for a limited period of time on the use and development of a new innovation. Owning a patent can give an inventor a valuable advantage in the market for a particular type of product. For example, if you hold a patent on a popular drug or computer chip, you can dominate the market for a significant period of time and prevent competitors from using your unique innovation.

Patents are issued and administered by the USPTO, the federal agency charged with overseeing the patent system. Generally, after an application is submitted, the USPTO will assign a patent examiner who will examine the application to ensure that the proposed invention qualifies for a patent under the Patent Act. This includes not just a study of the nature of the invention itself, but also a determination of whether it is essentially "preempted" by already-existing patents that have already been filed.

Obtaining a patent is unfortunately not a quick process—partly because of this back and forth with the patent examiner. It generally takes about two years between your application and the issuance of the patent by the USPTO. Moreover, various complications can slow the process further, such as a challenge by the USPTO's patent examiner or by other inventors who claim that your invention infringes on theirs.

To assist with the various complexities of the process, the USPTO offers many resources for patent applicants, including guides to the types of inventions that are patentable, the requirements for patent applications, and the process for patent examination.

Types of Patents

There are three types of patents available to inventors:

  1. utility patents
  2. design patents, and
  3. plant patents.

Each protects a different type of invention.

Utility patents are the most common type of patent, governed by 35 U.S.C. § 101. These are issued for useful inventions that are new (known as "novel") and that produce results that are not expected by those working in the field of invention (known as "nonobvious"). Examples of utility patents would include most mechanical, chemical, or computer-related inventions.

Design patents protect new and original design that ornaments a manufactured device. They are governed by 35 U.S.C. § 171. A design patent is granted for product designs—for example, the shape of a chair, the design of a shoe, or the layout of a computer screen. Importantly, the design must be ornamental or aesthetic, rather than functional. Once you acquire a design patent, you can stop others from making, using, selling and importing the design.

Finally, plant patents are the least frequently issued type of patent. They are governed by 35 U.S.C. § 161, which provides that "[w]hoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor, subject to the conditions and requirements of this title.

Lifespan of Patents

Patents do not last forever. Indeed, in the grand scheme of intellectual property protection, they do not last long at all. Trademarks and trade secrets can survive for as long as their owners use them. Copyrights generally last for the lifespan of the author plus 70 years.

By contrast, utility patents and plant patents generally last only 20 years from the date of issuance. Design patents last for 14 years after issuance.

Moreover, patent owners must pay various maintenance fees pursuant to the USPTO's fee schedule. Failure to pay these fees could result in the discontinuance of your patent. Thus, if you have gone through the time and expense of obtaining a patent, be sure to calendar the required dates so that you can maintain your full period of exclusive use.

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