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What is a Patent?

As a patent lawyer the second thing people always ask me is “What is a patent?” (The first being of course “What is that stuck on your shoe?”). Now, to save you time if you ever meet me, and get right to the third question “Is it true you can actually stop a ceiling fan with your tongue?” I have prepared this handy and cogent analysis:

Patents protect inventions. Patentable inventions include new and useful processes, machines, manufactures or compositions of matter, as well as any new and useful improvement thereof. Patent protection is only available under federal law. States cannot grant patents. Under federal patent law , an inventor can obtain the right to prevent others from making, using or selling a particular invention. Patents used to last 17 years from the date of issuance. Now, patents last 20 years from the date of filing. The change is designed to prevent “submarine” patents from languishing in the Patent Office for decades until the market builds and the inventor comes out of no where to start suing people from something he or she invented decades ago.

Something most people do not realize is that a patent does not allow its owner to do anything. A patent only allows its owner to to prevent others from making using or selling the invention. Patent protection is not available for all types of inventions. You cannot get a patent on an idea, an obvious combination of pre-existing items, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity. The United States Patent and Trademark Office summarily rejects patent applications on items such as perpetual motion machines.

Examples of patents can be found on the governmental web site or through Google Patent Search. 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. From a patentability standpoint, the claims must be narrow enough to differentiate the invention over any pre-existing devices or obvious combination thereof. From a commercial standpoint, the claims must be broad enough so that competitors cannot easily avoid the scope of the patent by making one or two minor changes. Not all patents are created equally. A skillful, experienced patent lawyer can often draft a much broader, more enforceable patent than a less skilled patent lawyer. Be prepared though, the Best Patent Lawyer in the World is probably going to cost you more than that fresh-faced associate right out of law school. Just make sure the patent attorney you speak with is the one actually drafting your patent application and he or she is not just pawning it off on a less experienced associate.

The owner of a patent may sue an infringer for copying the patented combination of elements in one or more of the patent claims. To determine infringement, a court looks at a particular claim within the patent to determine if each element thereof, or its equivalent, can be found in the accused device. If the accused device includes every element of the claim, the device infringes the patent. The infringer must not only stop making, using and/or selling the device, but the infringer is also liable to the patent owner for the owner’s lost profits.

If the patent owner has no lost profits, the infringer must pay a reasonable royalty. Regardless of the number of claims included within the patent, if the device infringes a single claim, the infringer is liable for the same amount of damages as if the infringer had infringed every claim of the patent. If you are found to have infringed a patent, you may not only have to stop at compensate the patent owner for the damage, in the case of willful infringement, you might also have to pay triple damages and the patent owner’s attorney fees as well.

While a patent prevents you from making, using or selling an infringing device, a patent does not prevent you from patenting an infringing device. As an example, say an inventor invents a chair and obtains a patent on the chair. A subsequent inventor could file for, and obtain, a patent on a chair with a rocker. Neither the first patent owner nor the second patent owner, however, could make the rocking chair 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.

Brett Trout

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