Patents

When it comes to protecting intellectual property (IP), there are several options, each with its own strengths and disadvantages.

This article will explore patents, which offer one of the strongest forms of legal protection for inventions and designs.

What is a Patent?

A patent is a form of legal protection for IP. Patents grant an inventor the exclusive right to an invention. This means that other people can't use, copy or sell a patented invention without the permission of the inventor.

What is the Purpose of a Patent?

In order to maximize innovation in a society, people need to be incentivized for new inventions. Patents help create attractive incentives and rewards by giving inventors:

Recognition and credit for developing the invention.
The ability to be compensated for the time, money and effort spent to develop the invention.
Control over how the invention is used and applied.
The ability to collect a reasonable profit for developing the invention.

At the same time, permanent control over inventions can reduce innovation and discourage people from improving on past inventions. That's why patents don't last forever. Once inventors have enough time to claim credit and recover their investment, their inventions are turned over to the public domain, where anyone is welcome to modify and improve on the invention.

What Can Be Patented?

Each country sets its own laws and limitations on what can be patented. In the US, a patent may be awarded to anyone who "invents or discovers any new and useful process, machine, manufacture or composition of matter or any new and useful improvement thereof." In other words, there are four main types of inventions or discoveries that a patent can cover:

Processes: Engineering methods, computer software and applications, algorithms, etc.
Machines: Physical devices that perform a specific function.
Articles of manufacture: Anything that can be produced or assembled.
Composition of matter: New substances such as pharmaceuticals, beauty products, dyes and pigments.

What Other Conditions Must Be Met to Get a Patent?

If an invention or discovery falls into one of the categories above, it must meet two additional conditions to qualify for a patent: The invention must be both novel and non-obvious.

Patents are Novel

The novelty requirement prevents anyone from patenting something that's already publicly available. According to US law, if the invention was already "patented, described in a printed publication, on sale or otherwise available to the public" before the application filing date, then it's considered to be an "anticipated" invention and the patent will be denied. Below are some examples of anticipated inventions.

Prior Publication or Patent

For example, suppose you apply for a patent for a new home medical device that tracks five different body functions. If all of the device functions were already described by someone else in a single academic publication or news article, then the invention could be considered anticipated and the patent would be denied.

However, if the elements of the medical device could only be described using multiple prior sources, then the invention is still considered novel and eligible for a patent.

Existence of a Prior Invention

If the basic elements of a new invention can be found in a prior invention, then the new invention is anticipated. This is true regardless of whether the prior invention is patented. As long as the prior inventor used their invention openly (without attempting to keep the invention secret), then the new invention can't be patented.

Public Demonstration or Sale

US patent law allows for a one-year grace period to apply for a patent once an invention is publicly revealed or sold. However, if an invention is made public more than a year after its initial public debut, then the invention is no longer considered novel and therefore cannot be patented. Focus groups and product testing usually are exempt from counting as public demonstrations.

Keep in mind that any offer to sell or license the invention starts the one-year grace period to apply for a patent — even if the sale is never finalized.

Patents are Non-Obvious

Another key criterion for patents is that they must be non-obvious — that is, the invention can't be something that someone else would have thought up anyway.

In the US, federal courts have used six key criteria to determine whether an invention is obvious:

The results are predictable.
The invention is based on a prior patent with just a substitute component.
The invention uses a known technique to improve on an existing machine or device.
The invention applies a known improvement to achieve predictable results.
The invention uses one of finite, known solutions to achieve success.
The invention or its design is obvious to a person of skill.

For example, suppose you apply for a patent for a new method to cut people's hair. This would count as a process, and you haven't found any similar patents or publications that describe your new hair-cutting method. However, it turns out that many professional hairstylists already use this method in their everyday work. Even though no one was formally trained to cut hair this way, it's something that professionals could independently figure out on their own to make their jobs easier. In this case, your hair-cutting method would not qualify for a patent.

Obviousness is one of the most challenging hurdles to overcome because the definition is so vague and it's hard to definitively prove who counts as a "person of skill." This becomes even harder when you're patenting an improvement on an existing invention.

Can Any Idea be Patented?

Even if an invention or discovery meets the above requirements, there are a few types of inventions that are specifically barred from being patented:

Mathematical formulas, scientific principles and laws of nature.
Naturally occurring substances.
Processes that involved only physical activity, such as dances and performances.
Inventions whose primary purpose is illegal or criminal.
Inventions that would violate physical laws, such as perpetual-motion machines.

Keep in mind that it's possible to patent inventions that incorporate some of these things. For example, while it isn't possible to patent a newly discovered mineral, it is possible to patent a device or process that makes use of the new mineral in a novel and non-obvious way.

What Types of Patents are There?

Patents are divided into three basic types in the US: utility patents, design patents and plant patents.

Utility Patents

When most people think of a patent, they think of a utility patent, which covers functional inventions such as new processes, machines and manufactured items. Utility patents offer the most legal protection but are also the most difficult to obtain. That's because inventions covered by a utility patent must be inherently useful. In other words, the invention must be proven to provide some sort of commercial, industrial or health benefit.

An example of a recent utility patent is Apple's patent for manufacturing the iMac, which uses unique processes for shaping, assembling and joining materials and components.

Design Patents

Design patents are issued to protect non-functional, aesthetic designs. An invention doesn't have to be useful to receive a design patent. In fact, design patents can only be awarded to non-functional inventions.

When Apple applied for a utility patent for its new iMac, it also applied for a design patent. This prevented competitors from producing computers that looked like iMacs, even if they used different manufacturing methods.

Plant Patents

This narrow class of patents covers new plants and plant seeds created by combining different plant species. New varieties of corn, apples, wheat and roses are a few examples of what can be protected by a plant patent.

Who Regulates Patents in the US?

In the United States, patents are managed and regulated by the US Patent and Trademark Office (USPTO), an agency of the US Department of Commerce. The main duties of the USPTO include:

Examining applications and granting patents
Recording patent assignments
Maintaining search files for both US and foreign patents
Supplying copies of patents and other official records upon request

Patent law in the US is regulated at the federal level and there is a separate court system to handle patent law cases and appeals — including appeals for denied patent applications.

Are US Patents Recognized Internationally?

By default, a patent is only valid in the country where it's filed — there's no such thing as an international patent to protect an invention anywhere in the world. Inventors must file a patent in each country where they intend to produce, sell or otherwise commercialize their invention.

Each country has its own processes and laws concerning patents. For example, some countries will not award a patent if the invention is publicized before submitting the patent application. Other countries charge regular maintenance fees for patents and many others require the patented invention to be manufactured in the country within a certain period — otherwise, the patent will be voided.

Fortunately, there's some good about international patents. The US is part of the Patent Cooperation Treaty (PCT), which greatly speeds up the patent application process in most other countries. An inventor can submit a single patent application for the 154 countries under the treaty. However, inventors are still responsible for complying with the individual requirements of each country.

If you're planning to patent an invention in more than one country, then it's important to seek legal advice from qualified attorneys in each country where you intend to apply for a patent. By developing a clear patent application strategy before starting the process, you'll avoid the frustration of denied applications and wasted time and money down the road.

How Long Do Patents Last?

Unlike other forms of IP protection, such as trademarks and trade secrets, patents have a limited lifespan. In the US, different patent types have different lifespans:

Utility patents: 20 years
Design patents: 14 years
Plant patents: 17 years

Generally, patents cannot be renewed, though there are exceptions that allow inventors to renew or extend certain utility patents.

Once a patent expires, anyone can produce, sell or use the patented invention without the permission of the inventor.

Should You Patent Your Invention?

Obtaining a patent for your invention offers one of the strongest forms of IP protection. On the other hand, applying for a patent can be expensive and there's no guarantee that your patent will be commercially successful.

If the following situations apply to you, then you should consider applying for a patent for your invention:

You're confident that your invention meets the requirements for novelty and non-obviousness.
You intend to produce or manufacture your patented invention.
You're comfortable with submitting the details of your invention for public review.
You want to exclusively profit from selling or licensing your invention for a limited time.
You're comfortable with your invention becoming part of the public domain after the patent expires.

If these situations don't apply to you, then the good news is that there are other ways to legally protect your intellectual property. Learn more about trademarks and trade secrets in our next articles.