Patents promote society through rewarding individual inventors with a type of exclusionary right called a patent. That reward, a patent, was carefully designed to balance overall growth of society against the reward granted to the individual inventor. Therefore, a patent allows the inventor to exclude others from using his invention for a limited time and then afterwards donates the invention for use by anyone.
Thus, a patent is a right granted by law which gives an inventor (of a novel and useful invention) a right to exclude others from making, using, selling, offering for sale or importing the patented invention. Examples include machinery, medical devices, computer programs, computer systems and business processes.
With respect to a patent, the timing of filing is vital. If the inventor publicly discloses the invention or offers products for sale he or she may be prevented from later obtaining a patent. In addition, the U.S. is now a first-to-file country, which means priority of a patent is given to the first inventor who files a patent application on an invention. To protect your rights, we recommend early filing and a visit with one of our experienced patent attorneys to discuss how to file a patent application.
There are three types of patents, a utility patent, a design patent and a plant patent.
UTILITY PATENTS, DESIGN PATENTS, PLANT PATENTS
Utility Patents may be subdivided into provisional or non-provisional patent applications. A provisional patent is a patent application that acts like a date holder, holding your filing date until you file a non-provisional application. (See Provisional Patent Applications.)
Non-provisional refers to the fact that you are ready to apply for the patent and, if successful, have it issued. Within the non-provisional category, there are three main patent types: Utility, Design and Plant patents.
BENEFITS OF PATENT REGISTRATION
To receive any of the benefits of patent protection, the invention must be patented within the time provided by law. In addition, since the U.S. has recently switched to the First-to-File Rule, you must file first. Failure to apply for a patent first or within the time allowed may result in the forfeiture of all patent rights, which include the right to prevent others from making, using, importing, offering to sell or selling the invention. The term of a patent lasts approximately 20 years from the filing date of a utility patent and 15 years from the filing date of a design patent.
PATENT SEARCH
In addition to being necessary for preparing a patentability opinion letter, a search is recommended to prepare the patent application and to draft claims in a way which would give the broadest possible protection to the invention. While some may believe a patent can be filed without conducting a professional patent search, at the Intellectual Property Center we highly recommend conducting the patent search. While it may be easier to draft the patent without evaluating the prior art, it will not provide the greatest protection for you or your business as you integrate the invention into your business model.
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PATENT INFRINGEMENT & PATENT LITIGATION
A United States Patent gives the inventor the exclusive right to the invention claimed in the patent. Any unauthorized user of the invention may be sued by the patent holder. However, the burden is on the patent owner to prove infringement, which can be demonstrated in a number of ways, including literal infringement or infringement under the doctrine of equivalents. Literal infringement occurs if, when evaluating the claims of the patents, there is a correspondence between the claims of the patented device and the infringing device. Where a device does not literally infringe, it may infringe under the doctrine of equivalents. A device can infringe under the doctrine of equivalents, if it performs substantially the same function in substantially the same way to achieve the same result.
If you have a patent that you believe is being infringed, you should contact one of our patent attorneys to preserve your legal rights. Conversely, if another person or group is claiming that you are infringing upon their patent, you should contact one of our patent attorneys to assist you.
At the Intellectual Property Center, we can enforce your rights under the United States and International Patent laws to protect your intellectual innovation.
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