What is a Patent?
A question we get asked frequently by those looking protect and bring to market their visionary idea.
A patent is the core legal protection for inventors and their inventions. The purpose of a patent is to provide protection to an inventor with the necessary time and space to make, use and sell his or her invention without the threat of competition.
In essence, a patent is the right to exclude others, for a specified time period, from simultaneously building, using or selling that particular invention in the marketplace.
In exchange, the government—specifically the United States Patent and Trademark Office or (USPTO), requires that the inventor, using written descriptions, or through pictures, diagrams, figures, and drawings, disclose in intricate detail the precise way to make and use the invention he or she wishes to patent.
The patent office then tests the invention using the disclosed instructions and information. They recruit a hypothetical Person of Ordinary Skill in the Art or POSTIA for short.
To illustrate, let’s say there is an invention currently under review for automobile motors and engines. The chosen POSITA would be an average automotive engineer. For the invention to qualify, the hired engineer would need to be able to pick up that patent application, read it, and know exactly how to go build and use it.
As the owner of a US patent, one can exclude others from copying, recreating, or offering to sell their invention in the United States.
It’s almost as though one were granted a temporary monopoly. Not only is the inventor guaranteed to be the only one legally allowed to use that particular invention—whether publicly or privately—they are also the only one that is able to sell the invention in the United States.
To better understand “what is a patent”, we will first need to understand the difference between it and the three other types of IP protection.
1. What is the difference between patents & other intellectual property?
There are four (4) main types of Intellectual Property (IP) protection.
- Trade Secret
What is the difference between patent and trademark?
A trademark is a designation of a good, or service, used to notify a customer, or potential customer, of precisely what good, or service they can expect to receive when they see that mark associated with its sale or advertisement.
A good example of a famous trademark is the Nike Swoosh. If that mark, the swoosh, appears on an article of clothing or a pair of shoes, for example, that product is immediately recognized as part of the Nike brand.
Trademarks can be powerful symbols in the marketplace, as it both instantly represents the manufacturer (and its reputation) as well as informs the consumer. Therefore, the very essence of trademark law is to help prevent confusion in the marketplace. If someone were to open up a Steakhouse and use two golden arches as part of its logo or on any advertising, the public may misinterpret that this restaurant is affiliated with McDonald’s Restaurants.
The owners of the Steakhouse may not necessarily have intended to steal McDonald’s customer traction, but because of the misinterpretation, that could happen.
If a consumer cannot trust that a logo or mark is legally protected, the less the value of the mark.
What is the difference between patent and copyright?
The tenets of copyright law are designed to protect creative works. “Creative work” is a broad category. This is the artist’s domain. Paintings, drawings, sketches, sculptures, books, be they fiction or nonfiction, and music, are all basic examples of IP that can be protected by a copyright.
To obtain a copyright, however, the work has to be “fixed in a tangible means.” In short, it has to be published somehow. If the work is virtual, it could be “fixed” in an MP3 file. It could be a wave file, or it could be more traditional, such as a film reel, or a VHS tape, cassette, CD, or a book. This recording or publication and its concomitant rights in the marketplace are then protected by the copyright designation.
What is the difference between patent and trade secret?
Trade secret law, which is enforced under state law, protects any proprietary methods or formulae of a company or an individual that have immediate, economic value to competitors.
For instance, a well-known trade secret is the Coca-Cola recipe. The formula for the popular beverage, how to get its precise flavor, the chemicals used, the mixture, the heats, the treatments, etc. are all protected under a trade secret designation. Even the delivery and packaging can be considered part of a trade secret. Value brands, such as RC or Safeway would love to know Coke’s formula.
This an important protection, preventing companies from potentially stealing another’s method and undercutting or destroying the value of the company that it was stolen from.
Now that you understand the differences between a patent, trademark, copyright, and trade secret, you may be wondering what types of patents exist?
2. What are the different types of patents?
There are three main types of patents and each one has sub-categories:
- Utility Patents
- Design Patents
- Plant Patents
The USPTO.gov website is a treasure trove of information, they have a great resource on this topic, as an alternative to reading this section.
These are what protect functionality. They exclude anyone from being able to make, use or sell the same or similar product, assembly, method, or composition of matter.
Utility patents are the broadest types of patents and can cover multiple embodiments or versions of your invention. They have broad protection and usually cover simple modifications or alternative versions of the invention through claim language.
Here is a screen shot of “Wing Tip Device” which was granted on October 2, 2007. You can see the filing date is clearly listed November 10, 2004.
Yes, that means that it took 3 years to get this patent through examination (also called prosecution). It’s actually not too long in the world of utility patents.
I wanted to point out a few things about a utility patent and how you can spot them. They are numbered as “US X,XXX,XXX” in the upper right. You can see the filing date also in red below. The patent is good for 20 years after the filing date. This is to incentivize patent holders to negotiate efficiently with examiners as it goes through prosecution, because it tolls their patent rights.
Now, I also want to point out what CLAIMS look like. below is what the first claim looks like for this “Wing Tip Device” (or let’s call it ‘722 patent). And… by the way – you have to scroll WAY down to the end of the patent document to find the numbered claims.
Did you follow all that?
I’m only joking. This is a complex patent claim. There are likely 10 reasons every single word is used in this claim. To say the claim here was well thought out is a massive understatement.
Patent claims are what define a utility patent and therefore are the basis for the rights which the patent holder may use to defend their invention. They will be the heart of what is litigated by a judge/jury and must be carefully crafted to be broad, yet defensible.
To gain a little appreciation of the art of patent claiming. Realize that there are entire workshops on patent claim drafting. It’s an art as much as it is a science.
The vast majority of all patent applications are utility patent filings. These are any invention where the inventor is claiming a utility or function. Software patents, drug patents, electrical patents, aerospace patents, medical patents, consumer good patents, and mechanical device patents are all examples of inventions that would be protected under a utility application.
A design patent is what protects 3D appearance. Similar to utility patents, they exclude anyone from being able to make, use, or sell a product with the same or similar appearance. However, these patents are less broad because the only claim is the drawings themselves. This means that the ability for a design patent to cover variations or design-arounds is much more difficult because you don’t get to use the English language to characterize the invention.
You know it’s a Design Patent because you see in the upper right corner of the patent document “US D488,765 S”. And you can see the ENTIRE claim is written in a canned statement, “The ornamental design for a raked wing tip for an airplane, as shown and illustrated.”
All they get is that one liner. So if you design a new wing with a tip in the shape of an octagon, you are not infringing!
(Although…that’s not an airplane I’d fly on…)
Design patents are becoming more popular with the settlement of Apple v. Samsung’s phone patent war. The settlement was reached because of an infringement ruling that went against Samsung, in favor of Apple’s DESIGN PATENT. Yes, the $500M settlement over a design patent.
See any similarities?
So, needless to say – many consumer product inventors are seeking BOTH protection from the utility and the design aspects of their products. It’s a very nice belt-and-suspenders approach to IP protection.
These protect plants. The types of plants are those that can be grown in a lab setting, where they may be asexually reproduced. If the plant requires pollination or natural intervention (think wind, birds, and bees) to produce/form, it cannot be patented. There are some types of plants that are specifically excluded, such as tubers. Protection is most prevalent in consumer fruits, vegetables, and floral plants.
3. What is the legal life of a patent?
Patent life (or enforceable period) depends on the type of patent.
For Utility and Plant patents, it is 20 years after the filing date of the nonprovisional application. This means that the enforceable life of the patent, is dependent on how long the patent is pending (during prosecution).
There is one wrinkle to this. If, during patent prosecution, the patent office delays the prosecution for any reason that was the fault of the USPTO, the patent office will grant an extension or adjustment of enforceable life back to the patent.
Ok, there is another wrinkle. If there are co-pending patent applications, and for some reason the applicant has filed a terminal disclaimer because of a double-patenting rejection, it could be the case that a future patent application will be limited in enforceable period to the original nonprovisional application.
Here is the calculation:
Enforceable Period =
Filing Date +
20 Years +
Any Patent Adjustment Period –
Any Terminal Disclaimers
In our “Wing Tip Device” example, you can see highlight in green the NON-PROVISIONAL filing date of November 10, 2004. Please also note that you can see a PROVISIONAL (or earlier FOREIGN) filing date of November 10, 2003.
The 20 years began starting in 2004.
Also, note that in the “*Notice” Section, under U.S.C. 154(b) the USPTO is giving the applicant 33 days extra, which they admit is their fault for delaying the patent application.
So, the patent is enforceable until:
November 10, 2004 +
20 Years +
33 days –
0 Terminal Disclaimer =
December 13, 2024
For Design Patents, the law has recently changed. U.S. design patents that were filed after May 13, 2015 have a 15-year term from the date of GRANT. Patents that were filed before May 13, 2015 will have a patent term of 14 years from the date of GRANT.
It is important to note that design patents tend to have a much shorter time of pendency than do Utility patent applications. Thus, the actual enforceable (after GRANT) period is actually closer than it may seem.
For example, a computer-implemented method may take 4 years to get through the examination/appeal before the claims are granted. And therefore only has (20-4 = 16 years) of life, whereas a design patent filed after May 13, 2015 will have 15 years of life after it grants.
4. What is a patent application?
A patent application is the collection of documents that are submitted to the USPTO which provide the basis for the invention’s filing dates, and prospective rights.
I have a great article which outlines each step in how to file a patent application.
5. What is a patent search?
A patent search is a critical step to the patent process. This is the research and information gathering stage where an inventor learns about “prior art” (current technology) and seeks to confirm that their invention is novel and nonobvious (different enough) from the prior art publications.
A key note is that a patent search, no matter how extensive and comprehensive is not something a lay inventor can take much from. What is needed is a LEGAL OPINION.
The legal opinion (which may only be written by a Patent Attorney) analyzes the results of the search and provides a recommendation of what the prospective scope of rights will be should the inventor file a patent application.
I go into great detail about how to perform a patent search on our blog.
6. What is a patent attorney/lawyer? Why do you need one?
A patent attorney is a highly credentialed professional. The minimum requirements are:
- Accredited Bachelor of Science Degree (or equivalent course load)
- Accredited Law School Degree (Juris Doctorate)
- USPTO Patent Bar Exam Passage & Active Registration
- State Bar Exam Passage & Active Licensure
These professionals have dedicated their career to technology, law, and invention. They are inspired by what inventors and entrepreneurs do, and they have a passion for keeping innovation a part of the DNA of the United States.
When you are looking to make your mark on the world with your product, service, or technology, a much better experience occurs when the right advice is sought at the beginning, and actions are taken proactively. The same goes for your invention.
By utilizing the skills of a trained Patent Attorney, you will be able to protect your invention for the long-term because the Patent Attorney will keep in mind the real potential for your patent to be litigated and will help assure your claims will stand the test of time.
In this article, you found answers to a simple question:
What is a Patent?
My goal was to make sure you knew the major differences of IP law including patents, trademark, copyright, and trade secret. As you read, patents are a very distinct area of law that have particular rights bestowed on inventors for their giving away the secret of how to make and use their valuable invention.
I also showcased the different types of patents, and hope I helped you gain insight into how to read a patent from the document cover sheet itself to become a more informed inventor.
Here is a recap list of questions we went over:
- What is the difference between patents & other intellectual property?
- What are the different types of patents?
- What is the legal life of a patent?
- What is a patent application?
- What is a patent search?
- What is a patent attorney/lawyer? Why do you need one?
What do you think? Do you have any additional questions about patents?
Please let me know in the comments below!
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Legal Note: This blog article does not constitute as legal advice. Although the article was written by a licensed USPTO patent attorney there are many factors and complexities that come into patenting an idea. We recommend you consult a lawyer if you want legal advice for your particular situation. No attorney-client or confidential relationship exists by simply reading and applying the steps stated in this blog article.