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By J.D. Houvener
Patent Attorney and Founder

Has anybody seen this before? It’s a water bottle, right? But did you know that this actually has an active patent enforceable right now? Maybe, maybe not. Well, what about it is patented? [Music]

Hi, everyone, and welcome to “What is a Patent?” I’m JD Hoover, the CEO, and managing partner at Bold Patents Law Firm. It’s a pleasure to be here with you today. I’m excited to talk with you about the major question, which is what is a patent and what does it mean to you, helping you, the innovator, make your dreams true, chase your visionary concept, and make it a reality.

So, in my fun example about this bottle here, and some of you may have guessed that it isn’t actually this outer part, right? It isn’t even this attachment that’s patented. What actually is protected under this is this. Okay, this is what’s unique. This, they call it the Jax, JXX, and it’s got a unique shape to it that helps mix all the water or whatever fluid you’ve got in there and any particles in it. So, next time you’ve got a product that seems kind of cool, fascinating, take a look on the actual container on the product. You’ll be surprised someone went after their dreams and they sought patent protection.

The first thing I want to go through is what I’m going to talk about. I know that you’re probably looking at the length of this video and thinking, gosh, this is a long one. So, if you want to jump through, which I urge you to stick with me, or please, if you want to jump through and go look at our table of contents, we’ve got that listed right below.

Today, I’m going to talk about patent history, okay? I won’t take you all the way back and take too long, but I want to go back and talk about what that’s going to mean. Next, we’re going to talk about what is the quid pro quo, what’s the exchange between you, the inventor, and the US government. Next, we’re going to talk about the sword versus shield. Now, I got a great story for you there. Eligibility, patentability, what are the different types of patents that are out there and available? We’re going to look at how do you make money because, in the end, that’s what you’re really interested in looking at. And then finally, how do you enforce your rights once you get those valuable patent rights granted in your name? So, let’s dive in.

I want to talk about the history of patent law with you, take it way back to the Constitution. This is the old days, right, when the founding fathers wanted to put in the Declaration and in the Constitution how important it is so that we all become smarter every day. How do we have a country that we’re going to form that is going to be instilling and inspiring inventors and helping to get information out to the masses as quickly as possible?

So, they devised this theory that if we give inventors 20 years, right, as a reward, 20 years of a monopoly in that specific product, whatever they’ve invented or discovered, we’re going to be able to get more information out to the public. And that’s exactly what happens. So, in this quid pro quo, right, the second part of this discussion here today about what is a patent is the US government gives 20 years of monopoly that they say we’re going to defend you and help you be the only one in the whole country that’s able to make, use, or sell your invention in the country, only one for 20 years if you tell us about your secret. Right? You tell us about how to make your invention so that we all become smart. That’s the exchange.

So, it goes way back to the 1700s, and this has been around for 300 years and, in large part, is why the US is the leading country when it comes to innovation. And so, one of the biggest things to take away if you’re an innovator, if you’re in this world on the creation side, is that you’ve got to know that it’s okay. In fact, it’s actually necessary to stand on the shoulders of those that came before you. That’s the whole essence of patent law, and it’s the reason why it became law so that we all become smarter, that you learn from the innovations that others have produced before you. And when you submit a patent application, as we’ll talk about in another video, if you’re actually required to indicate what references, what patents, what non-patent literature that you knew about related to your invention that helped you get to where you’re at today.

Alright, so next, I want to talk about what the sword and shield is all about. And it comes from a story, actually, a client a couple of years back came to me with a new solar device. And without getting into particulars, it actually caused a very efficient way to cook, you know, use it for a little kitchen. And so, in essence, the inventor was at first coming to me and saying, look, Daddy, I want to get this patent because I want to go after all these people that are taking my invention, that are doing harm in the solar world, they’re messing it up, they’re causing too much friction, they’re not going to get this invention to the masses.

And they were thinking of their patent more like a sword versus shield. And so, I want to walk you through kind of the process of what the difference is and how I explained this to my inventor at the time is what patents do is they actually provide you a shield that provides you this ability to prevent anyone else from making, using, selling, or even importing that product into the US. So, you create this sort of bubble around you in the marketplace. Okay, that’s sort of the analogy, is a shield in the marketplace. And depending on how valuable your invention is, is how big your shield is. Okay? And so, that space created between you and the shield is what you’re really being afforded with your patent rights. And so, if you were the first one, for example, to come up with a mobile cellular device way back in the ’80s with the backpacks and everything. And so, with the more valuable patents, groundbreaking patents that are out there, they get to protect a lot of area, and so they get to enjoy a large share of the market for a long time.

And what the government does by granting you a patent is it helps you far out and keep those people from getting into that market. You’re able to enforce your rights by saying, no, no, no, you’re treading into my land now. You’re actually reading on the claims. By using your shield, you’ve simply pushed them out to that boundary where you have rights. So, it really isn’t a way to proactively go after people and make money. It’s a way to defend. And so, the other major point there is that you’re not going to get money. Money is not going to flow to your door simply by having a patent right. It’s the ability to prevent anyone else. So, meaning you’ve got to go get it. Sure, you’ve got this nice space that you’ve created with this market share, but that’s your opportunity. Now, you’ve got to go make the product, sell it, and make money on it. Okay, so that’s on you to make it happen.

It’s a patent eligibility is about the core, right? So, what does it mean to actually be able to enter the game at all, to play the big patent game? Well, you’ve got to have something that is a machine, a process, composition of matter, or it’s got to have an assembly of parts that already exist in the world but are being put together in a unique way. That’s it. Things that are laws of nature, equations, merely human activity such as talking or transferring goods or exchanging funds are not eligible. Alright, and so for a much deeper look at this, I’ve written a long blog, long-form, meaning I’ve gotten into the details, given examples, even done little short videos specifically on this. So, please visit our website at boldip.com, take a look at that eligibility rules under our blog.

Alright, next is patentability. So, this is all about what is a patent? What does it mean to even get a patent? Well, you’ve got to not only be eligible, but it has to be patentable. To be patentable, you have to show you’re novel, non-obvious, and have utility. Okay, novel just means new, but don’t stop there. It’s got to be new in the whole world. So, the patent examiners are going to be looking at your invention when you submit it, and it’s their job to find any other prior art, any other patent that’s been filed before or anything ever published in media that could include social media, you name it, search engines, newspapers, and academic journals. So, those are all places that you need to go look and see if your invention is indeed new.

Non-obvious means that there’s a person out there in your industry, what information would they know, and even if it hasn’t been done before, maybe it’s just an obvious variant of something already done before. And last but not least is utility. And we’re going to talk about this in other videos too, but I want to lay this out. It has to have some beneficial, some functional benefit, right? And that’s able to get the patent granted. The system doesn’t want to just create fanciful or arbitrary inventions. You’ve got to show that there’s some reason to want to protect it.

Alright, so I want to lay out the different patent types for you. This is a major part of figuring out what in the world a patent even is. There are three major types. There’s utility, design, and plant patents. Very briefly, a utility patent application is just what it sounds like. It gives utility and benefits the functional aspects of your invention. It protects what it does. Design patents, on the other hand, protect what something looks like and just what it looks like, just the ornamental appearance of your invention. The next one is plant types, and that protects organic plants that come out of the ground. So, new, novel shapes, different colors, different varieties, flavors, you name it, that’s plant patents.

Alright, so the next major thing to understand about patents here is the monetization. Okay, don’t forget about that money, right? And so, when patents are granted, they now, of course, bestow those rights on the user. And so, you now have the right to exclude anyone from making, using, selling, or importing that product in the country. So, there’s lots of different ways to make money, the first of which, of course, is to use that space that you’ve created by your patent shield and go capture that market that you’re the only one able to do it. No competitors, right? That’s unbelievable. I mean, there’s areas of the law that, you know, for illegal reasons, white-collar crimes are committed when there’s monopolies, but this is a federally regulated monopoly. So, the government says, yes, you’ve given us this amazing information. You’ve helped us all become smarter. Go get it. Go capture it. There’s still a lot of doing in that, and it’s a lot easier to say go capture it than it is to do it. So, you’ve got to get after it, and what that means is make your product, market it, find out who you’re going to be selling to, and produce it into the marketplace.

The second major avenue is to say, you know what, I don’t have the energy or the funds to go make it happen, but this other company does. Okay, and they’re selling a similar product, you know, they’re outside of my shield, but they would love to be able to offer what I have. And so, you simply license or sell your license or sell your patent to that other entity, and they can go off and bring it to market. You get a royalty or a lump sum payment. Last but not least, another way to monetize your patent rights is, of course, to use that shield to push people back. Folks that have been in your space for a while and have sold your product, you have been damaged. Depending on how much infringement there’s been, in order to bring them back into your full scope of your shield space, you realize that you really have the way to enforce your rights. Now you need to move into either the federal court or patent trial appeal board to enforce your rights in court.

Now, the last thing that parties wanted to end up doing is paying attorneys’ fees, and so usually, these cases settle. You can definitely use the counsel and should use the counsel of a patent attorney when getting ready to prepare to make those settlements in order to gauge how much value this has really worth. So when it comes time for that, give us a call.

So, if you’re enjoying this information and you feel like this is beneficial to you or maybe someone that you know, someone just starting the patent process, please give us a like or thumbs up on this video and share it with that community. Also on our website is the book I wrote just a year and a half ago called “Bold Ideas: The Inventor’s Guide to Patents.” This book has got the secrets that you need to get started. It’s a short quick read, but it’s got really powerful facts. It’s got everything packed in this book in my first 10 years of practice, and working with clients, they come up with questions, and they feel—I feel them over and over again. I said, you know, these questions keep coming up too often. I’m going to put them all inside this book and give it away for free. So, your copies are available today at boldip.com. You can click our website. It’s just two clicks away.

Alright, well, thank you for joining me for “What is a Patent?” and how to move forward, right? You’ve taken that first step, the first bold step, if I will, in making sure your invention is protected. You’ve got to get a hold of a professional. So hop on our website at boldip.com, get your free consultation scheduled today, and get started for real. It’s been my pleasure talking with you here about what is a patent and getting this really kind of entry-level foundational information to you about getting started in the patent process.

If you’re already kind of further down the road and you want to make that bold decision to book a consultation with one of our advisors, I recommend it, and in fact, we’re giving it away for free. You can go to our website at boldip.com, browse a little bit, but don’t forget to schedule your consultation. If you’re not quite ready, I encourage you to please go check out our other videos. We’ve got them published on YouTube and hold today’s show as well as boldpatents.com and boldap.com.

I’m JD Huvener, your president and CEO at Bold Patents Law Firm. It’s my pleasure to talk to you here today. Go big, go bold.

About the Author
J.D. Houvener is a Registered USPTO Patent Attorney who has a strong interest in helping entrepreneurs and businesses thrive. J.D. leverages his technical background in engineering and experience in the aerospace industry to provide businesses with a unique perspective on their patent needs. He works with clients who are serious about investing in their intellectual assets and provides counsel on how to capitalize their patents in the market. If you have any questions regarding this article or patents in general, consider contacting J.D. at https://boldip.com/contact/