Intellectual property law is the legal system that provides certain privileges and protections for owners and inventors of certain intellectual property. Intellectual property laws were created with the intent to encourage and protect new ideas, the creation of new technologies, as well as artistic creativity for the economic growth of the United States.
Therefore, with the protections granted by intellectual property laws, an owner of a piece of intellectual property will have more confidence that their creative work and ideas can be protected, and will be more likely to share that property.
The following is a list of different types of intellectual property that fall under the umbrella of intellectual property law and are protected:
- Trade secrets; and
What Is a Patent?
As mentioned above, a patent is a type of intellectual property. Specifically, a patent is a type of intellectual property that gives the owner of the patent the legal right to exclude others from making, using, or offering for sale the patented idea or invention without the express permission from the patent owner. This means that once a patent is registered with the United States Patent and Trademark Office (“USPTO”), the owner has the exclusive rights to utilize their patent, including the right to sue others to enforce and protect their patented idea or invention.
The USPTO issues a patent after the inventor files a provisional patent application that documents their concepts. This patent application will then be disclosed and public with the USPTO. After an inventor has filed their provisional patent application, their invention will be considered to be patent-pending.
At this point, the inventor will have a right to sue another person or company who makes use of their patent-pending property. It is important to note that not every idea or invention can be patented, as there are specific requirements that must be met for the USPTO to issue a patent.
What Ideas or Inventions Can Be Patented?
In order to receive a patent from the USPTO, the invention or idea submitted to the USPTO must be new, unique, and generally unobvious. Thus, one of the first things an individual seeking to receive a patent should do is search the USPTO database to ensure that their idea or invention meets the new and uniqueness requirements.
After a prospective patent owner determines their idea or invention is new, unique, and generally unobvious, they can apply to receive one of three different patents:
- Utility Patent: The most common type of patent is a utility patent. In order to receive a utility patent, the invention must be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an improvement on an existing invention. Further, in order to qualify for a utility patent, the invention must also be moderately useful. For example, the first pizza box was originally a utility patent that covered how the product functioned to keep the pizza both warm and prevent grease spill. These patents last 20 years;
- Design Patent: A design patent is a patent that covers how a product appears. Generally, the design must be novel, non-obvious and nonfunctional. These patents last 14 years;
- Plant Patent: New species of plants can also be patented. In order to patent the new species, the plant must be both novel and non-obvious. Plant patents prevent others from breeding that specified plant, without express permission from the patent holder. It is important to note that naturally occurring substances and laws of nature cannot be patented. These patents last 20 years; and
- Software Patent: A software patent is a patent that covers how a certain computer process works to achieve a specified result. In many aspects a software patent is similar to a design patent.
What Legal Protections Do Patent Owners Have?
Once a patent has been granted to a patent owner by the USPTO, no other party can legally argue that the idea or invention is their own. This means that the patent holder will own all the rights to the patented idea or invention. This also means that the patent holder can bring an enforcement action in court to prevent a party from continuing any action involving their invention or idea. If the patent owner is successful in their enforcement action, they may also be awarded damages.
As mentioned above, patent owners also have these rights during the patent application process and can still have rights to their invention or idea while the patent application is pending with the USPTO. However, it is important to note that before the patent application has been filed with the USPTO, an inventor does not have any rights in the invention. This means that without a patent, anyone can steal or copy the idea.
What Is Patent Infringement?
Patent infringement occurs when another individual or company makes, uses, or sells a piece of intellectual property without first obtaining the express permission or license from the patent owner. When proving patent infringement occurred, the party seeking the enforcement of the patent must demonstrate that the unauthorized product matches the “claims” that of the invention. Alternatively, the patent owner could show that the unauthorized product is “sufficiently equivalent” to their patent and would cause a likelihood of confusion to consumers.
Since there are many different types of patents, there are also many different types of patent infringement, such as direct and indirect patent infringement. In order to avoid patent infringement, a party wishing to use the intellectual property should seek permission from a patent owner or obtain a license to use the property.
How Do Patent Enforcement Actions Occur?
Once again, a patent holder has the right to enforce their patent by suing any party infringing on their patent rights. Although it may seem obvious, a valid patent or provisional patent is required to sue for patent enforcement. There are many stages in which an inventor will have rights to enforce their idea or invention, and within each stage, the inventor will have different legal rights. The different stages of legal rights for an inventor with an idea or invention are:
- Conception: During the conception process of the idea or invention, an inventor has no legal protections. Therefore, patent enforcement is not yet available to the inventor, and they should closely guard their idea or invention from others;
- Documentation: The documentation stage is where the inventor has recorded their idea or invention properly. At this stage the inventor would likely be seeking to have their ideas patented. With proper documentation and witnesses, an inventor’s idea or invention may have some legal protections under trade secret law, but not the full set of legal protections given to patent owners;
- Patent Pending: This is the stage in which the inventor has submitted an application to the USPTO to patent their idea or invention. After submitting a patent application, the inventor will go through various stages of communication with the USPTO to complete their patented idea or invention. Once again, the date of the patent filing will serve as protection against infringement, so long as the application does lead to a valid patent;
- Patent Issued: Once the USPTO approves the application and issues the inventor a patent, the inventor will now be a patent owner. At this stage, the patent owner will have full legal rights over their invention and may bring a lawsuit for patent enforcement. The patent will also be public record, meaning that others will be unable to receive a patent for an equivalent invention or idea; and
- Expiration: If a patent is not maintained with the USPTO, the patent will expire and the owner of the patent will no longer have legal protection for their idea or invention. Importantly, if the infringement occurred prior to the expiration of the patent, the patent owner can still file an infringement suit for damages for the period of time prior to the expiration of the patent.
As can be seen, there are various different stages in the patent process. Thus, an inventor will need to be aware of the various stages in order to ensure that their idea or invention remains protected.
If any party infringes the inventor’s non-expired patent, they can file a civil lawsuit against the infringing party to make them cease their use of the patented invention and pay damages. Typically, a patent owner will first send a cease and desist letter to the infringing party to warn them to cease their use of the patented idea or invention or risk further penalties.
Do I Need A Lawyer For Help With Patent Enforcement?
If you have any questions, concerns, or disputes associated with patent enforcement, you should hire an experienced patent attorney.
An experienced attorney will be able to help you understand your legal rights and options according to both federal law and the laws of your specific state. An attorney will also be able to file a civil lawsuit against an infringing party on your behalf. Finally, an attorney will also be able to represent you in court, as needed.