Written by Patrick Nachtsheim, Legal Extern
What is a patent?
A patent occurs when the federal government, in exchange for the complete disclosure of an invention, gives an inventor a set of exclusive property rights for an invention for a definite period of time. These rights are not normal property rights. A patent does not mean you are entitled to manufacture, sell, use, or import your specific invention, rather a patent gives you the “right of exclusion” over an invention. A right of exclusion enables you to exclude others from manufacturing, selling, using, or importing your specific invention.
Patent rights only surround your specific invention and the claims in the patent. Patent claims define exactly what the patent covers, and your patent rights only apply to the claims in your patent. This means that if you develop an improvement to a car engine and you receive a patent on that improvement, your rights only involve that specific improvement and not the entire engine. To see what a particular patent protects you can look to the claims. Again, these claims are your actual rights. The accompanying specification and drawings merely supplement the claims and flesh out what the claims mean but do not impart property rights. There are two (2) types of patents: utility patents and design patents. Utility patents are what normally come to mind when thinking of patents. Utility patents cover the way an article is used and works, while design patents cover the appearance of an article, similar to trade dress. Just as the two types of patents cover various protectable elements of an invention, the two types also receive varying lengths of protection: utility patents receive twenty (20) years of protection from the date of application, but design patents only receive fifteen (15) years from the date of application.
What is infringement?
Federal statute defines patent infringement to be an activity that occurs when anyone, without authority, makes, uses, offers to sell, sells, or imports a patented invention. Infringement can be determined by comparing the allegedly infringing article to the claims of a patent. If the article falls within one of those claims it constitutes infringement.
If someone infringes upon your patent it is important to go speak with an attorney as soon as possible after discovering the infringement. An attorney will likely recommend one of two options, either a cease and desist letter or to bring suit against the opposing party. These are difficult decisions to make and require extensive financial and time commitments. Therefore, attorney assistance is highly recommended.
Do I have to do anything once I receive my patent?
The work is not done after you get your application published, it is important to maintain your patent. You must pay the USPTO maintenance fees at three and one-half (3.5), seven and one-half (7.5), and eleven and one-half (11.5) years after the issuance of your patent. You also need to stay vigilant and up-to-date in the area of your patent and monitor for potential infringements. Now that you are aware of what rights patents impart on you, go out and invent!