What Is a Patent?
A patent is a Constitutionally-authorized “deal” between inventors and the federal government.
Congress is empowered to make laws to grant patents to inventors under Article I, section 8 of the U.S. Constitution. Pursuant to this clause, Congress enacted The Patent Act, which governs the granting of patents and the workings of the United States Patent and Trademark Office (USPTO). In exchange for an inventor sharing the secrets and details of an invention with the public, the government grants the inventor certain limited rights to exclude others from benefitting from the invention. The process by which one obtains a patent is known as patent prosecution.
The parts of a patent generally include an abstract of the invention, a specification, which includes a summary of the invention and the prior art and a detailed description of the invention, labeled drawings of the invention, and one or more claims. The description and claims are a crucial aspect of a patent application. The description should explain the significance of different features of the invention and explain how the invention relates to and differs from, the prior art. The claims define the scope of protection over an invention. The claims set limitations that restrict and define the scope of the protection, including the scope of the subject matter of the invention.
Once a patent application is completed, it is submitted to the USPTO along with a filing fee. After obtaining an understanding of the invention, a patent examiner will conduct a search of the prior art and determine whether the invention claimed in the application is in compliance with statutory requirements for patenting. The timeframe for this process if variable depending on the patent examiner’s workload. Prosecution can be completed in as little as a year, although it not infrequently takes up to three years or longer. It is not uncommon for the patent examiner to initially reject the application, or to ask an applicant to amend the claims one or more times.
Once a patent is obtained, it grants the inventor a limited right to exclude others from making, using, offering for sale, or selling the patented invention in the United States or importing the invention into the United States. For a utility patent, this right generally lasts for 20 years after filing the application. It is important to note that a patent grants only the right to exclude others from benefitting from the patented invention.
There are a few common strategies an inventor can use to enforce rights in a patent:
- Monopoly: A patent can be used to attempt to keep competitors from offering competing products or from using certain methods;
- Revenue stream: A patent can be licensed to generate royalty revenue; and
- Assignment: A patent can be sold.
For additional information regarding Barrett McNagny's Intellectual Property Law area of practice, please contact one of the attorneys listed below: