Intellectual Property (IP) piracy concerns all of us, inventors, software developers, and designers. Fortunately, the law gives IP creators protection in the form of patents for entrepreneurs. Read on for tips on how the law confers certain rights upon the owners.
What it is. A patent is a legally recognized monopoly on the right to design, make, use, and sell a registered invention. To get a patent, the owner must apply to the US Patent and Trademark Office (USPTO), describing the invention and showing that the invention is new, useful and what the law calls “non-obvious”. In other words, the product must mean more than the next logical step in the technology’s development. If successful, the patent rights conferred upon the owner extend for 20 years (15 years for design patents).
A patent protects the systems, methods, algorithms, and functions of a product, such as software. This can mean everything from the software’s user-interface to the menu setup to the operating system and compiling techniques.
A patent is exclusive to the owner. The law calls the making, using or selling of a patented product without permission an “infringement”. Harsh penalties apply for patent infringement and can carry treble (triple) damages. Once the US Patent Office grants a patent, the law considers a similar product — even one independently discovered — an infringement.
What you need to apply for a patent. The law says that you need more than a “mere idea”. If you have an idea for a new invention, you cannot merely patent the idea but you can develop your idea into something more concrete that the law will recognize as an invention. Remember, you can patent an invention but that does not mean you have to create a prototype to file for a patent. Rather, you must describe the invention in such a way that other people can make it. Graphic illustrations or 3D renderings that show how to make it would satisfy the rule. This description is what the law calls a “constructive reduction to practice.” The phrase “reduction to practice” is how the law says that the invention must work for its intended purpose.
Types of patents. US patent law recognizes several types of protection but the following two are of interest to this discussion: utility patents and design patents. You can obtain both for one invention.
The USPTO says that a utility patent will issue for a “new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof…also referred to as “patents for invention”. The USPTO grants this type of patent for 20 years.
A design patent, on the other hand, the US Patent Office describes in one of its US Patent Document as “a new, original, and ornamental design embodied in or applied to an article of manufacture, for a term of fifteen years from the date of grant.”
Caveats. The following are things to keep in mind when you consider filing for a patent.
- The US patent is a “first to file” kind of protection which makes it different from patent laws in other countries. For applications filed after March 16, 2013, whoever gets to the USPTO door first and files the application will win in a battle over who has the rights to the invention.
- Do not show your invention to anyone or talk to anyone about it before filing. Unless the other person has agreed to keep the invention information confidential, do not show your invention until you file the patent application with the USPTO (and more conservatively until you receive the patent).
- Mailing your patent idea to yourself does not protect you at all! This is a myth and certainly flies in the face of the “first to file” rules.
- Provisional patents do not exist. You can, however, file a provisional patent application which does not mature into a utility or design patent at all but can provide evidence of “first in time”. Bear in mind, however, that a provisional patent application does not start the clock running for the 15-20 year protection period. It’s a way for inventors who invest in the US to file for a foreign filing license before they can file for a patent in other countries. The provisional patent application can show evidence of the first steps in a patent filing in the US.
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