If an individual is an inventor, protecting their invention from unauthorized use and distribution is in their best interests. United States patent laws provide patents to inventors to exclude other individuals or entities from “making, using, offering for sale or selling the invention” in the United States.
An inventor needs to be aware that United States patents do not provide overseas or foreign country patent protections. The inventor must file for a patent in another country to obtain patent protections there.
The invention must be unique, new, and unobvious to obtain a patent from the United States Patent and Trademark Office (USPTO). The individual must establish patent inventorship because, unless they assign their rights to another individual or entity, only the actual inventor is permitted to make a patent application.
If an individual is a new patent applicant, they should research their idea relationship or similar existing patents as part of the patent due diligence process. In general, three invention types can be patented, including:
- Utility patents;
- Plant patents; and
- Design patents.
Utility patents are inventions with processes or methods that produce concrete results, such as:
- Machines;
- Chemical or biological compositions of compounds; or
- Clearly demonstrated improvements on an existing invention.
The invention must be considered moderately useful in the examiner’s opinion to qualify for a utility patent. The second category of patent is a plant patent.
Patents over plants are created through either genetic engineering or selective breeding. The plant itself is required to be non-obvious and novel.
The third patent category is design patents. Applications for design patents are required to be:
- Novel;
- Nonobvious; and
- A nonfunctional idea.
It is important to note that certain things cannot be patented, including:
- Naturally occurring substances and compounds;
- Ideas;
- Laws of nature, such as physics and geometry; and
- Mathematical calculations.
When an individual or entity applies for a patent through the USPTO, they must include an application fee and specific drawings and notations that describe their proposed invention. The application requires that the applicant follow a very specific and rigid form.
Obtaining a patent can be a time-consuming and lengthy process. Completing a patent application may take as long as 5 years.
The application process involves several steps, including:
- Applying with the USPTO;
- Paying the required fees;
- Responding to questions and actions from the USPTO; and
- Filing an appeal in the event of a denial of the application.
How Long Can a Patent Last?
Depending upon the type of patent an individual or entity applies for, it is typically valid for 20, 17, or 14 years from the filing date. Patents are included in the international agreements between countries that are World Trade Organization (WTO) members.
These nations are legally obligated to recognize and enforce U.S. patents.
Can I Get Patent Protection in Foreign Countries?
A patent obtained in the United States only protects the invention in the U.S. If an inventor wants foreign protections, they may be required to file for patent protection again in those countries.
What Is the Typical Procedure for Filing for a Patent in Another Country?
Typically, an inventor must obtain a license from the Commissioner of Patents and Trademarks to file for a patent in another country within 6 months of filing in the United States. It is important to note that many foreign countries make all parent applications public upon filing.
This may have a negative impact on the United States.
Is There Any Special Method by Which I Can Delay Filing an Application for a Foreign Patent?
Under treaties with the majority of foreign countries, if an individual has filed a patent application in the United States, it may be possible to delay filing their application for a foreign patent for up to 1 year after the U.S. filing and still be able to claim priority in the foreign country.
Are There Different Standards for Patents in Foreign Countries?
Yes, a foreign country may have different standards for patents. For example, most foreign countries have an absolute novelty requirement for obtaining patents.
This standard is different from the novelty standard in the United States.
What Is Patent Infringement?
Patent infringement occurs when an individual or entity engages in the unauthorized use, manufacture, sale, or import of a patented invention. Patent infringement can be proven by comparing the claims and elements of the existing patent with the suspect device or invention’s elements.
If these items match, patent infringement has occurred. In these instances, patents can be enforced in a federal court.
How Do I Know if Someone Infringed on My Patent?
The scope of the claims of a patent will determine whether it has been infringed. The claims define the invention.
Because of this, the claims also define the scope of the protections that the invention receives. The suspect invention must infringe on every claim in another individual’s patent to constitute infringement.
The scope of the patent’s claims determines whether or not the patent has been infringed. Two steps must be followed to determine whether a new invention infringes on an existing patent, including:
- Determining the meaning and scope of the claims contained in the patent; and
- Determining if the new invention infringes on the claims of the existing patent.
What Is Patent Litigation?
Patent litigation typically involves the illegal or unauthorized use of a patented idea or invention. If a non-patent holder distributes or uses a patented invention without the owner’s consent, it may result in patent litigation.
Patents cover many different aspects of inventions, including the design and utility of patents. In most patent litigation cases, a monetary damages award compensates the plaintiff’s losses.
When Is Patent Litigation Necessary?
Litigation involving a patent may be necessary for a wide variety of circumstances. Alternative dispute resolution or negotiations may be used to resolve many disputes.
A lawsuit may be necessary if these types of dispute resolution do not resolve the issue. Litigation involving a patent may be necessary for situations such as:
- A dispute over the usage of the patented invention;
- A dispute that involves the unauthorized distribution or sale of patented products;
- Various types of patent infringement claims;
- A safety issue with the patented material, especially related to a design defect; and
- Issues with the expiration of a patent.
Patent litigation involves many legal conflicts and issues, especially concerning infringement. The majority of patent lawsuits are filed in a civil court.
However, in certain cases, criminal laws may also be involved. A qualified patent litigation attorney can provide assistance when it comes to resolving a patent dispute.
Do I Need a Patent Attorney to Help Me Protect My Patent in Foreign Countries?
If you are considering filing a patent in a foreign country, consulting with a patent attorney is important. Patent applications can be very complex and involve specific requirements, especially in foreign countries.
Your attorney can advise you whether the other country has different filing requirements. Then, your lawyer can help you complete your application and ensure that you comply with the requirements in the foreign country. They can also keep you informed if there are any recent changes to patent laws that might affect your legal rights and options.
