Inventors need to protect their inventions from unauthorized use and distribution. Patents are issued to inventors to prevent others from making, using, offering for sale, or selling their inventions in the United States. An inventor receives a patent to protect their invention.
Patents typically exist for twenty years and can be used for any invention in any technology field. Patents are part of international agreements with the World Trade Organization (WTO), so member nations of the organization are expected to recognize and enforce legal patents.
Depending on the type of patent, a patent is usually valid for 20, 17, or 14 years from the filing date. Patents are included in the international agreements of the World Trade Organization (WTO), so WTO member nations are legally obligated to recognize and enforce patents.
The process of obtaining a patent can take a lot of time. Successfully completing an application can take up to five years. The process involves:
- Filing an application with the USPTO.
- Paying the required fees.
- Responding to questions and actions from the USPTO.
Before filing a provisional application, a person anticipating applying for a patent should do a patent search to ensure that their unique and original idea has not already been patented.
Types of Inventions that Can Be Patented
Generally, to receive a patent from the U.S. Patent and Trademark Office, the invention must be new, unique, and generally unobvious.
Depending on the item you wish to patent, there are different types of patents available:
- Utility Patent: Generally, the invention must be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an invention improvement. An invention must also be moderately useful to qualify for a utility patent.
- Design Patent: Generally, the design must be novel, non-obvious, and non-functional.
- Plant Patent: Plants that you create can be patented. It must be a novel and non-obvious plant. It is not possible to patent naturally occurring substances, laws of nature, ideas, and calculation methods, among other things.
What Are Patent Claims?
Patents are a form of intellectual property and are governed by intellectual property laws. Patent claims are the most important part of a patent application. Invention statements describe in detail what your invention covers. By writing your patent claims, you are claiming ownership of the material in them. Your invention’s claims determine whether it is patentable and what type of protection your patent will provide.
What Do I Need to Include in My Patent Claims?
Your invention’s structural elements (for a product) or steps (for a process) must be listed in the patent claim. You should clearly describe the elements of your invention in your claims.
Do I Need to Put My Patent Claims in a Certain Format?
In most patent claims, there is a preamble, a transition phrase, and a body:
- Preamble: an introductory phrase that describes what you want to claim (e.g., “a method of growing wheat”).
- Transition Phrase: the word you use to transition from the preamble to the body of your claim is very significant in determining the scope of your patent. It is an open transition phrase to use words like “comprising” to indicate that the claim encompasses devices or processes with additional elements that are not listed in the body, whereas words like “consisting of” indicate that the claim covers only devices and processes that contain no more than the claim’s elements.
- Body: this is where you would list the structural elements or steps to your invention. The body of the claim limits your general description of your invention in the preamble.
How Broad Should I Make My Claims?
When making your claims, it is important to balance the desire for as much protection as possible with the need for a valid patent:
- Very broad claims (e.g., claiming “a shoe” ): Gives you a wide scope of protection but will make it harder to get a patent because broad claims are more likely to be invalidated by previous inventions, and it is harder to explain how to make and use every invention covered by broad claims.
- Narrow claims (e.g., “a shoe made of green leather, with black laces made out of a synthetic material” ): Make it easier to get protection, but they also severely limit that protection. An inventor could produce an identical shoe with yellow laces and not infringe on a narrow claim.
Are There Any Special Kinds of Claims?
Patent law allows two special kinds of claims:
- Product-by-process: a product-by-process claim covers a product but claims it by describing the process used to make it.
- Means-function: means-function claims allow an inventor to describe an element of a claim as something used to perform a function rather than naming the element as a specific structure or act.
What Is Patent Litigation?
Patent litigation usually involves the unauthorized or illegal use of a patented invention or idea. Patents provide an inventor with legal protection and exclusive rights over their invention. It may result in patent litigation if a non-patent holder uses or distributes patented inventions without the owner’s consent.
Patents cover many different aspects of the invention, including the design and utility of the patent. In most patent litigation cases, the plaintiff’s losses are compensated through monetary damages.
When Is Patent Litigation Necessary?
Litigation over patents can be necessary for a wide range of circumstances. Negotiations or alternative dispute resolution may be used in many cases to resolve a dispute. A lawsuit may be necessary if this does not resolve the problem. Litigation over patents can be necessary for the following situations:
- Disputes over the usage of a patented invention
- Disputes involving unauthorized distribution or sale of patented products
- Various types of patent infringement claims
- Safety issues with patented material (especially design defects)
- Issues with the expiration of a patent
Patent litigation covers a wide range of different legal issues and conflicts, especially those relating to infringement. Most patent lawsuits are filed in civil courts; criminal law theories may occasionally be involved.
What Remedies Are Available in a Patent Lawsuit?
Some remedies may include patent infringement damages, which are designed to reimburse the patent holder for any losses caused by the infringement. For example, a defendant may be required to pay damages for lost profits and business clients. Damage claims need to be calculable, provable (not speculative), and supported by evidence.
A patent lawsuit may also include an injunction ordering the offender to stop producing or using the patented material. They may need to pull their products from a marketing line, change a recipe/formula, or take other similar steps. Materials related to the investigation may be confiscated.
Are There Any Legal Defenses in a Patent Lawsuit?
Depending on the facts, there may be several patent infringement defenses available to the defendant. Defendants may prove that they were authorized to use a patent or patented invention as a defense. It may be possible for them to show the patent holder’s consent.
A patent that is invalid, unfair, or inequitable conduct by the plaintiff, a delay in filing the suit, or other defenses specific to the type of patent may also be considered.
Do I Need a Lawyer?
Because patent claims are so important to the patent process, you should probably consult with a patent attorney to ensure your claims adequately protect your invention without being overly broad. An experienced patent attorney should draft patent claims to maximize your patent’s scope.
