What is a Patent?

Patent, trademark, copyright, and trade secret law all offer the means to protect your business’s intellectual property. But what distinguishes these? This blog has already examined both copyright and trademarks. Now we turn to patents.

A patent is essentially a property right in a particular invention. The U.S. Patent and Trademark Office (USPTO) examines patent applications and issues patents. An inventor who has a patent has the right to prevent anyone else from making, using, selling, or offering for sale in the U.S. the invention protected by the patent, as well as the right to exclude anyone else from importing the invention into the U.S. without permission. Patents typically endure for a twenty-year term.

The USPTO recognizes three types of patents:

  • Utility patents may be granted to anyone who, according to the USPTO’s website, “invents or discovers any new or useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof;”
  • Design patents may be granted to anyone who invents a “new, original and ornamental design for an article of manufacture;” and
  • Plant patents may be granted to anyone who “invents or discovers and asexually reproduces any distinct and new variety of plant.”

To be eligible for a patent, the invention must be functional, as well as new and non-obvious.  An idea or suggestion cannot be patented, nor can natural laws or mathematical formulas. But a formula’s application in some practical way can be protected by patent.

Some Examples of Items that Can Be Patented?

Utility patents are the most common and run the gamut from hand tools to iPhones. Computer software and hardware can be patented, as well as photocopiers, sewing machines, medicines, pens, digital cameras, and your Keurig coffee maker.

How Do I Obtain a Patent?

The first step in obtaining a patent is to search to discover if your invention has already been disclosed or patented. Assuming you find nothing, the next step is to determine which kind of patent you need. Once you have decided what patent type best applies to your invention, you will prepare your patent application and file it with the USPTO. An experienced attorney can guide you through all these steps, from conducting the search to preparing and filing the application, and thereafter communicating on your behalf with the patent examiner who will rule on your application.

What is Patent Infringement?

Making, selling, offering for sale, or using a patented invention without the patent owner’s permission constitutes patent infringement, as does importing a patented product into the U.S. without such permission. Damages available for patent infringement include monetary compensation and an order to stop infringing. Patent law requires that monetary damages provide at a minimum a “reasonable royalty” for the infringer’s use of the invention and permits the court to award up to three times the actual damages, as well as costs and attorneys’ fees. A “reasonable royalty” is generally calculated to be the amount that a licensee would pay a licensor after negotiating. Another measure of damages is the inventor’s lost profits, which is determined by examining the infringer’s profits and determining what would have gone to the inventor except for the infringement.

Consult an Experienced Intellectual Property Attorney

Your intellectual property is one of your company’s most important assets. With offices in Los Angeles and San Francisco, the attorneys of The DeCardenas Law Group have the know-how and experience to protect it effectively. Contact the DeCardenas Law Group today.