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Frequently Asked Questions About Patents

What is a patent?

A patent is a legal document. It defines the scope of your invention. A patent allows you to prevent others from making, using or selling your invention without paying you. You can see what a patent looks like here.

Is everything patentable?

No. You cannot get a patent on ideas, obvious combinations of pre-existing devices, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity. You can get a patent on new and useful processes, machines, manufactures, or compositions of matter, as well as any new and useful improvement thereof.

Are all patents valuable?

Just like the inventions they protect, some patents are valuable, and some are not. A patent is like a safe, in which you keep your valuables. There are good safes and bad safes. A patent does not make an invention better. A patent does not even mean that an invention has any value at all. A patent merely increases the value of a valuable invention, by giving you a monopoly on sales of the invention, allowing you to charge a higher price. If the invention does not sell, a patent is not going to help.

Should I get a patent on my invention?

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. If the invention is novel and lots of people are willing to pay a premium over the manufacturing costs to get it, you probably need a patent.

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 you to actually make your invention, only to prevent others from making, using, or selling your invention.

What is in a patent?

Examples of patents can be found at the Patent Office website. You can search for other patents at Google Patents. Patents typically include a brief description of the background and pre-existing technology, a detailed description 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 taht, preferably, are broad enough to differentiate the invention over any pre-existing devices or obvious combinations thereof. The claims 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 equal?

No. In fact, if you hired 50 patent attorneys to write a patent covering your invention, no two would be the same. Some would be good, and some would be bad. 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?

Possibly. As noted above, 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 that infringes 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.

Can I get money if someone is infringing my patent?

Yes, but you may have to prove infringement in court. 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 searching Google Patents to check if there is already a patent on your idea. Although it is difficult to determine definitively from the Google Patent database if your idea is already patented, you may get lucky, or unlucky as the case may be, and stumble upon your idea in another patent. If the Google Patent search turns up nothing, you can have a patent attorney do a search for you. While patent attorney searches are much more comprehensive, they are still not guaranteed. Even a search by a patent attorney is likely to miss relevant patents, and most patent applications are not searchable immediately after filing. If the patent search doe not turn up anything similar, 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.

Brett Trout

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Posted in General, Patent Law.