What Can be Patented?
A patent will typically apply to an invention or related subject. This is in contrast to a copyright, which is applicable to works of art, including:
- Music;
- Books;
- Literature; and
- Other creations.
There are different patents which may apply to different aspects on inventions, including:
- Design patents: These protect non-functional aspects of an invention, for example, a color scheme or aesthetic pattern;
- Utility patents: These encompass the practical, functional applications of the invention, for example, mechanical functions. They also cover improvements of existing inventions; and
- Plant patents: These protect an inventor of a different plant species. It must be a new plant which is not already in existence.
Patents cover a broad range of subject matter related to inventions. They help to protect the market economy by encouraging the creation of inventions while, at the same time, protecting an inventor from unauthorized use or replication of their invention.
How Long do Patents Last?
As noted above, a patent is typically valid for 20 years after the date the patent application is filed. For a patent that was filed before June 8, 1995, the patent expires either 17 years from the date of the application being granted or 20 years from the date of filing.
These deadlines and dates are important to note during the patent litigation process. For example, if an individual claims that their patent rights are being violated by another party, their claim will likely not stand if it is discovered that their patent is actually expired.
What Happens if a Patent is Violated?
Patent infringement is a serious offense which typically results in a civil lawsuit. A lawsuit is typically filed by the owner of the patent against a company or individual who uses the patented invention without their permission.
A party who is found to be liable for patent infringement may be required to pay damages to the patent holder for any business losses resulting from the violation. In addition, the liable party may be required to forfeit any unauthorized items to local enforcement authorities.
Criminal charges may, in some cases, arise in serious cases, especially those which involve aspects that are related to white-collar crime.
What is a Patent Attorney?
Patent attorneys or patent lawyers are lawyers who are authorized to practice patent law. Patent attorneys are required to pass an exam called the patent bar in order to perform legal tasks that are related to patents.
The tasks patent attorneys may perform include:
- Filing for patents;
- Protecting their client’s patent rights; and
- Filing patent lawsuits.
It is important to be aware that not all attorneys are patent attorneys. A patent lawyer is sometimes referred to as a registered patent practitioner.
What Are Design Rights?
Design rights are included in intellectual property law. Design rights specifically related to the exclusive use of the designs which are contained in a patented invention.
Design rights are also referred to as industrial design rights. These rights protect the inventor of a design from an unauthorized use of the design.
These rights help to ensure that the design patent holder is the only individual who is able to profit from the application of the design. It may also help to prevent instances of design patent infringement.
Patent infringement is similar to copyright infringement. Copyright infringement, however, generally applies to works of art such as music or literature.
Patent infringement usually involves designs and inventions.
What Do Design Rights Cover?
Design rights, in general, cover aspects of a mechanical design which are not functional. In other words, those that form part of the invention’s design. These aspects are often parts of the design which provide a unique, creative addition to the equipment or invention.
Design rights may cover aspects of the design, including:
- Creation of a particular shape;
- Specific patterns or themes;
- Various color schemes;
- Arrangements or configurations of parts; and
- Specific font designs.
Designs which are aesthetic or are only related to appearance may be covered by trademark or trade dress laws in addition to design rights laws. This may, however, depend upon each individual design.
What if Design Rights Have Been Violated?
Protection for design rights may be secured by filing with the USPTO. The filing process includes numerous steps and often requires the assistance of an intellectual property attorney.
Once design patent rights are secured, they provide the owner with rights to the designs. This means that an outside party may be sued if they use the protected design without the permission of the owner.
The individual may also be sued if they attempt to create a similar design based upon the original design. Although, there are various limitations that are involved.
If an individual is found to be liable for a violation of design rights, they may be required to pay damages to the holder of the design for any losses which were caused by the infringement. In these cases, a court will typically order that a violating company cease the infringing activities.
In addition, the unauthorized creations or products may be confiscated by enforcement authorities.
What is Patent Litigation?
Patent litigation typically involves the unauthorized or illegal use of an invention or an idea that is patented. A patent provides an inventor with legal protections as well as exclusive rights over their invention.
Therefore, if a non-patent holder seeks to use or distribute a patented invention without the consent of the owner, it may lead to patent litigation. A patent may cover numerous different aspects of an invention, including the design and utility of the patent.
The majority of patent litigation claims result in a monetary damages award for the plaintiff’s losses.
When is Patent Litigation Necessary?
Patent litigation may become necessary in a variety of situations. In many cases, the parties can attempt to resolve their dispute using negotiations or some type of alternative dispute resolution.
If these types of alternative dispute resolution do not remedy the situation, it may be necessary to file a lawsuit to resolve the patent issue. Patent litigation may be required in situations which involve:
- Disputes over the usage of 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; and
- Issues with the expiration of a patent.
Therefore, patent litigation may cover a wide range of legal issues and conflicts, especially infringement issues. The majority of patent lawsuits are filed in civil courts.
Occasionally, a patent claim may also involve some criminal law theories.
Do I Need a Lawyer for Help with Industrial Design Rights?
Each year, individual inventors and companies lose profits due to their failure to secure rights to their own designs. It may be helpful to you to hire a patent lawyer who can address any issues, questions, or concerns you may have related to industrial design rights.
Your attorney will be able to assist you in applying for patent protection as well as represent you in court if your design rights have been subject to an infringement violation.
