A “patent” is a grant of a property right by the Government to an inventor. The United States Constitution gives Congress the right to provide for patent protection in legislation in order to encourage useful inventions. The patent itself provides a detailed description of the invention, and how it is used or how to make it. Thus, if you obtain a patent you cannot keep the matter secret, which is the province of Trade Secret Law. A patent enables the owner to exclude others from making, using or selling the invention for the life of the patent.
Federal statutes give an inventor the exclusive right to use, sell, and market his invention. The types of things that can be patented are things that are new, useful, and not obvious to those in the business to which the invention relates. An invention also may be a process, a new chemical or even a new type of plant.
Patents are granted by the U.S. Patent and Trademark Office in Washington, D.C. There are three types of patents:
- Utility Patents: These are granted for most new products or processes and are valid for 20 years;
- Design Patents: These are granted for new and original designs for manufactured goods and are good for 20 years;
- Plant Patents: These are granted for developing a new type of plant
The difference between a design patent and a utility patent is that a design patent protects the ornamental design, configuration, improved decorative appearance, or shape of an invention. This patent is appropriate when the basic product already exists in the marketplace and is not being improved upon in function but only in style. For example, designer eyeglass frames, the original Coca-Cola bottles, and “Pet Rocks” would have all been protected with design patents. A U.S. design patent generally lasts for 14 years.
A utility patent protects any new invention or functional improvements on existing inventions. This can be to a product, machine, a process, or even composition of matter. Examples of a utility patent would include a better carburetor, a new type of self-fastening diaper or a new recipe. The life of a U.S. utility patent lasts 20 years from the date of filing assuming the patent is granted, but the owner of the patent must pay maintenance fees to the United States Patent and Trademark Office (USPTO) to keep a utility patent from expiring.
A plant patent may be issued for a new and distinct invented or discovered asexually reproduced plant including cultivated mutants, hybrids, and newly found seedlings, other than a plant found in an uncultivated state. A plant patent permits its owner to exclude others from making, using, or selling the plant for a period of up to twenty years from the date of patent application filing. Plant patents are not subject to the payment of maintenance fees.
Before a patent is granted the applicant must submit his idea to a patent examiner in the patent office who will make a determination as the whether or not the invention is new and not obvious to a person of ordinary skill in the area in which the invention is related. The examiner=s decision can be appealed to the Board of Patent Appeals or the Court of Appeals for D.C. circuit.
The owner of a patent is required to mark the word patent on the item patented and also put the patent number on the item. Failure to do this can prevent the patent holder from recovering damages is an infringement case.
Employers sometimes require employees to sign an agreement to assign any right to an invention of the employee to the employer. The invention must be related to the employer’s business, or this assignment would possibly be void as a violation of public policy.