In today’s complex world, every business owner should have a basic understanding of patents. Without this knowledge, you may be unable to adequately protect your company’s inventions or defend yourself against lawsuits from other entities.
U.S. patents date back to the Constitution, where it says Congress can secure “for limited times to … inventors the exclusive right to their discoveries.” In other words, patents provide the owner with the right to exclude others from making, using, selling, offering for sale, or importing the invention for 20 years. Patents are granted by the U.S. Patent and Trademark Office (PTO).
Exclusive rights begin once a patent is granted, and they expire 20 years after the application is filed. Most patents are owned by companies, inventors and universities.
If your company is granted a patent, it’s only good in the United States. Americans can apply for patents individually from foreign countries, but the approval process is usually quite complex.
Applying for a patent involves more than just filling out a simple form. The application form is a legal document, which must be accompanied by a description and drawings of the invention.
A Provisional Application
If cost is a particular concern, there might be a cheaper alternative. The PTO offers the option of filing a “provisional application” for a patent.
This lower-cost option has fewer requirements, but you must provide a detailed written description of the invention, its intended use and, if appropriate, an informal drawing.
This lets you claim “patent pending” status for one year. If you don’t follow up with a regular patent application, the provisional status will expire. You can still file for a patent on the same invention, but you won’t be able to benefit from an earlier effective filing date. (Note: These applications can’t be used for ornamental designs.)
What Can Be Patented?
The list of what you can patent includes machines, manufactured products, chemicals, computers, and applied technology. You can’t patent scientific principles or naturally occurring materials. Under U.S. law, there are three different patent types:
1. A utility patent on the functional or structural aspects of an apparatus, composition of matter, method or process. (See right-hand box for a Supreme Court case defining a process.”)
2. A design patent on the ornamental design of useful objects.
3. A plant patent on a new variety of living plant.
Contrary to popular belief, patents don’t protect ideas. Rather, they protect the structures and methods that apply technological concepts.
In return for receiving the right to exclude others, the inventor must relinquish the secrecy of the invention and fully disclose to the public the best mode of making and using the invention. For more information about patent law and how it might apply to your business, contact an intellectual property attorney.
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Patent History: Supreme Court Defines Patentable Process
In a computerized era, you may wonder whether a business method not tied to a machine or apparatus can be patented? Among the most historic decisions by the Supreme Court in this area was handed down in 2010.
In the case, the inventor came up with a method of hedging risk in the commodities trading field. Specifically, the invention explained how commodities buyers and sellers in the energy market could protect, or hedge, against the risk of price changes.
The Supreme Court ruled the inventor’s “application is not a patentable process”. (Bilski v. Kappos, No. 08-964, 6/28/10)
The court held that a claimed process is patent eligible if:
- It’s tied to a particular machine or apparatus, or
- It transforms a particular article into a different state or thing.
The Court noted the difficulty of answering questions like this in the Information Age. It added: “This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law … the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.”