If an individual is an inventor or creator, they may want to protect their inventions and creations from unauthorized use and distribution. Pursuant to federal patent laws, patents are given to inventors to exclude other individuals or entities from “making, using, offering for sale or selling the invention” in the United States.
Patents are provided to inventors and creators to protect their work. Patents typically last for 20 years and may be used for any inventions in any field of technology.
International agreements with the World Trade Organization (WTO) include patents. This means that member nations of the organization are expected to recognize and enforce legal patents.
What Types of Inventions can be Patented?
Generally, in order for an individual to receive a patent from the United States Patent and Trademark Office, an invention is required to be:
- Unique; and
- Generally unobvious.
There are different types of patents that may be available, depending upon the work that the individual wishes to patent, including:
- Utility patents: Generally, an invention is required to be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an invention improvement. The invention must be moderately useful to qualify for a utility patent;
- Design patents: Generally, the design must be:
- non-obvious; and
- Plant patents: Plants that are created can be patented. The plant must be novel and non-obvious.
It is important to note that certain things cannot be patented, including:
- Naturally occurring substances;
- Laws of nature;
- Calculation methods; and
- Other things.
How Long Does a Patent Last?
Patents that are filed after June 8, 1995, last for a period of 20 years from the date that patent application was filed. If the patent was filed before June 8, 1995, it will last for either 17 years from the date the application was granted or 20 years from the date the application was filed, whichever is longer.
The duration of a patent also depends upon what type of patent is being filed. The validity of patents include:
- Utility patent: Valid for 20 years from the date of filing if it was filed prior to June 8, 1995 or valid for 17 years from the date it was issued, whichever time period is longer;
- Utility patent: Valid for 20 years from the date of filing if it was filed after June 8, 1995;
- Design patent: Valid for 14 years from the date of issue for a design patent; and
- Plant patents: Valid for 17 years from the date it was issued.
Do Patents Ever Expire Early?
In some cases, a patent may expire early. Common examples of why this may occur include that the patent is found to be invalid or the inventor fails to pay the maintenance fee.
Once the patent expires, whether due to the time limit expiring or the inventor failing to pay the required fees, the patent will go into the public domain. If this occurs, the following may be done with the patent by any individual:
- Sell; or
The owner of a patent does not have rights to that patent once it expires. However, the owner may be permitted to bring an infringement action or an enforcement action if a patent was infringed upon during the time in which the patent was valid and not expired.
What Could Make My Patent Invalid?
A patent may be deemed invalid for a number of reasons. In many cases, a patent will be deemed invalid as a result of an infringement care when the accused infringer defends themselves by claiming that the patent is valid. Common reasons that a patent may be deemed invalid include:
- The invention was not actually patentable. If evidence can be presented that shows the invention lacked the requisite novelty, utility, or non-obviousness required for the patent, the United States Patent and Trademark Office (USPTO) can declare a patent invalid;
- An individual obtained the patent fraudulently. Even if an invention was patentable, if an individual can show that the patent was obtained through deception of the USPTO, the patent may be declared invalid; and
- The patent was used to commit illegal acts. If an individual uses their patent to engage in illegal conduct, the USPTO may declare the patent invalid.
What are Maintenance Fees and When Do I Have to Pay Them?
Inventors are required to pay maintenance fees to the USPTO in order to keep their patent in force. Patent maintenance fees are due at specific intervals after a patent is granted, including:
- 3.5 years;
- 7.5 years; and
- 11.5 years.
If the patent owner misses one of these deadlines, however, they have a 6 month grace period in which to pay the maintenance fee in addition to a penalty surcharge to keep their patent in force. If the patent owner fails to make the maintenance fee payments, the patent will expire.
What is Patent Infringement?
Patent infringement occurs when there is an unauthorized use, manufacture, sale, or import or a patented invention. In order to show patent infringement has occurred, the patent’s claims and elements are compared to the elements of the suspect device or invention.
If these match, patent infringement has occurred. In these cases, the inventor can enforce their patent in federal court.
How Do I Know if Someone Infringed on My Patent?
Whether or not a patent has been infringed upon will depend on the scope of the claims of the patent. These claims define the invention and, therefore, define the scope of protection that the invention receives.
In order to constitute infringement, another invention must infringe on every claim that is made in an individual’s patent. There are two steps that must be follow to determine if a new invention infringes on an existing patent, including:
- Determine the scope and meaning of the claims in the patent; and
- Determine if the new invention infringes on those claims.
How Do I Determine the Scope of My Patent’s Claims?
The meaning and scope of patent claims will primarily depend upon the language of the claims. When determining the meaning and scope of the patent claims, the following should be considered:
- Claims should have the same meaning for infringement as they had for validity;
- Unless otherwise stated, the language in the claims should be given its ordinary meaning;
- A single word will have only one meaning. The same word used in two separate claims will have the same meaning in each claim. An individual cannot try to change the meaning of the words in a claim to widen the scope of their patent; and
- Claims should be construed as broadly as possible.
In other words, when an individual is trying to determine the scope of their claims, they must examine what the claims actually describe and not what the individual wants them to describe.
Does the New Invention Have to be Identical to My Invention to Infringe on My Patent?
Although it may seem that a new invention would have to be a duplicate of an existing invention in order to infringe, it is typically sufficient for the new invention to be substantially similar to the existing invention.
Inventions may infringe in two ways, including:
- Literally: The claims of an individual’s patent directly describe the infringing invention; and
- Doctrine of equivalents: The infringing invention does not literally fall under the individual’s claims, but it performs the same function in order to achieve the same result, and every element of every claim of the invention has some corresponding equivalent in the infringing invention.
What Remedies are Available to Me if Someone Infringes on My Patent?
If an individual prevails in their lawsuit against the infringing party, they may be entitled to several remedies, including:
- An injunction;
- Damages; and
- Court costs and attorney’s fees.
Do I Need to Consult a Patent Attorney?
Determining whether patent infringement has occurred is a very technical and complex process. It is in your best interests to consult with a patent attorney who specializes in these issues.
Your attorney can advise you whether or not your rights have been infringed upon. A patent lawyer will have the knowledge and expertise to best present your arguments to the court and help protect your invention.