What is a patent?
A patent is a legal document defining an invention. The document allows you to prevent others from making, using or selling the invention without paying you.
Is everything patentable?
No. Patent protection is not available for all types of inventions. Patent law does not protect any ideas, any obvious combinations of pre-existing devices, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity. Patentable inventions include new and useful processes, machines, manufactures or compositions of matter, as well as any new and useful improvement thereof.
Are all patents valuable?
Some are. Some are not. A patent is like a safe, in which you keep your valuables. A patent does not make an invention better. A patent does not even mean that an idea has any value at all. The real question is will the invention sell. If it will, a patent can be very valuable. By keeping others out of the market, you can use a patent to make large profits on the sale of your invention or negotiate with a third party to pay you royalties on every sale.
How long does a patent last?
While patents formerly remained in force for 17 years from the date of their issuance, patents now expire 20 years from the date of their filing. Bear in mind that a patent does not allow its holder to do anything, only to prevent others from utilizing the invention.
What does a patent look like?
Examples of patents can be found at the Patent Office website. Patents typically consist of a brief description of the background and pre-existing technology, a detailed description of the preferred embodiment of the invention, drawings and/or flowcharts associated with the invention, an abstract of the invention, and one or more claims. The claims are each a one-sentence description of the invention which, preferably, are broad enough to differentiate the invention over any pre-existing devices or obvious combination thereof. The claims, however, must be narrow enough so as not to include any extraneous matter, which would serve as a limitation to the enforceable scope of the patent.
Are all patents created equally?
No. In fact, it would be very unusual for two different patent attorneys to draft identical patents on an invention. The value of a patent is often closely correlated with the skill and knowledge of the patent attorney drafting it. Drafting a narrow patent is easy and relatively inexpensive. Maximizing the protection available in a patent is a skill which, not surprisingly, translates into more time and more money to get the patent issued. The novelty of the invention also plays a hand in the breadth of the patent. It is not difficult to gain broad patent protection on a truly pioneering invention. By the same token, it is hard to gain more than minimal patent protection on an incremental improvement over the way things were done before.
Will the Patent Office grant me a patent on an invention they know infringes someone else’s patent?
Maybe. Strangely, a patent does not give you the right to DO anything, only the right to prevent others from doing something. The Patent Office does not care if your invention infringes an existing patent as long as your invention is an improvement over the other invention. Why would you want a patent on an invention which infringed someone else’s patent? Well, if an inventor were to invent a chair and receive a patent thereon, a subsequent inventor could file and obtain a patent on a chair with arms. Neither the first patent owner nor the second patent owner could make the chair with arms without infringing the other’s patent. However, the parties could negotiate a cross-license where both parties pay each other a royalty in exchange for being allowed to manufacture the improved device.
What damages may a court award me if someone is found to have infringed my patent?
Available remedies include an injunction (getting them to stop infringing), as well as the patent holder’s damages. Treble damages and attorney fees (which may be $1 Million or more) are also available in the case of willful infringers.
Where do I start if I want to patent my idea?
You may wish to start with the Patent Office to check if there is already a patent on your idea. Although it is difficult to determine definitively from the Patent Office database if your idea is patented, you may get lucky, or unlucky as the case may be, and stumble upon your idea in another patent. If the Patent Office search turns up nothing, you can have a patent attorney do a search for you. While such a search is much more comprehensive, it is not exhaustive. Even a search by a patent attorney is likely to miss a relevant patent or two. If the patent search goes well, you may wish to have the patent attorney prepare and file a patent application on your behalf. Although the process is long and costly, if the invention is a winner, a patent can mean the difference between millions in profits and having the invention stolen out from under you.
Feel free to forward any additional questions to me at trout@bretttrout.com
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Patent, Patent FAQ, Brett Trout, Patent Lawyer, Patent Attorney
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