What is a Patent?
A U.S. "patent" is a grant from the U.S. Patent and Trademark Office for an exclusive right to exclude others from making, using, selling, offering to sell or importing the patent holder's invention for a limited period of time. A patent is an official document issued by the government that describes the invention and serves as the tangible representation of the exclusive right. In most countries (including the United States), the term of a patent is 20 years from the earliest filing date.[1]
Appendix A shows a typical United States patent directed to a rocking chair. The entirety of the document is referred to as the patent's specification, which includes: (1) a written description, (2) drawings (where necessary to enable others to make and use the invention), and (3) claims. The claims are numbered, single-sentence paragraphs at the end of the patent document. The claims define the scope of the patent owner's right to exclude others from making, using, selling, offering to sell or importing the invention, much like a deed to a plot of land defines the boundaries of the land.
The primary goal of the U.S. patent system is to encourage innovation, disclosure of technologies, and commercialization of technological advances. To this end, the U.S. patent system offers an incentive to inventors to publicly disclose their inventions in exchange for the exclusive right to prevent others from making, using, or selling the invention. Patents accordingly foster public disclosure of leading-edge scientific and technical information to benefit society at large.
A. United States Patent Law
The United States patent system is based on federal statutes and administered exclusively by federal institutions, such as the United States Patent and Trademark Office (often referred to as "the USPTO") and the United States Federal Courts. The United States Constitution authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their respective . . . Discoveries.”[2] Congress enacted the first patent law in 1790 and has continued to add and revise the patent laws over the last two centuries. The America Invents Act is the most recent patent statute, and was signed into law on September 16, 2011.
B. Foreign Patent Laws
It is often beneficial to obtain patent protection in a foreign country (for example, if a product based on the invention is manufactured or sold in the foreign country). To obtain foreign patent protection, one option is to file a patent application directly in the foreign country of interest within twelve months of filing the corresponding U.S. patent application in accordance with the patent laws of that foreign country. A second option (for most countries) is to initially file an international application (also known as a "PCT application[3]") within twelve months of filing the corresponding U.S. application, and then file in the foreign countries based off of the PCT application within 30 months of filing the corresponding U.S. application. It is important to note that a PCT application does not become a patent that provides exclusive rights. Rather, an application must be filed in each country/region based on the PCT application. The foreign applications will then be examined in the foreign country. Although the initial costs of filing a PCT application are less than those associated with filing in most foreign countries directly, the cost of filing and prosecuting the foreign patent applications can be expensive depending on the countries designated and number of applications.
C. Why Get a Patent?
The primary reason to get a patent is to protect market share (through exclusivity), but there are many other reasons to obtain a patent. For example, patents, just like other property rights, can generate revenue if sold or licensed. Also, being able to mark "patented" on a product can improve the public perception of the product, deter copying, and potentially lead to increased sales. Similarly, having one or more patents can help attract investors, especially for small or emerging companies. Yet another reason to obtain patents is to build a defensive patent portfolio. For example, many companies build or acquire large patent portfolios so that they can launch an offensive counter-attack if they are sued by a patent holder.
[1] In the United States, this can be extended via Patent Term Adjustment and Patent Term Extension.
[2] Art. 1, § 8, cl. 8.
[3] PCT stands for "Patent Cooperation Treaty," which is an international patent law treaty that unifies the procedures for obtaining patent protection in multiple countries.
Appendix A shows a typical United States patent directed to a rocking chair. The entirety of the document is referred to as the patent's specification, which includes: (1) a written description, (2) drawings (where necessary to enable others to make and use the invention), and (3) claims. The claims are numbered, single-sentence paragraphs at the end of the patent document. The claims define the scope of the patent owner's right to exclude others from making, using, selling, offering to sell or importing the invention, much like a deed to a plot of land defines the boundaries of the land.
The primary goal of the U.S. patent system is to encourage innovation, disclosure of technologies, and commercialization of technological advances. To this end, the U.S. patent system offers an incentive to inventors to publicly disclose their inventions in exchange for the exclusive right to prevent others from making, using, or selling the invention. Patents accordingly foster public disclosure of leading-edge scientific and technical information to benefit society at large.
A. United States Patent Law
The United States patent system is based on federal statutes and administered exclusively by federal institutions, such as the United States Patent and Trademark Office (often referred to as "the USPTO") and the United States Federal Courts. The United States Constitution authorizes Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their respective . . . Discoveries.”[2] Congress enacted the first patent law in 1790 and has continued to add and revise the patent laws over the last two centuries. The America Invents Act is the most recent patent statute, and was signed into law on September 16, 2011.
B. Foreign Patent Laws
It is often beneficial to obtain patent protection in a foreign country (for example, if a product based on the invention is manufactured or sold in the foreign country). To obtain foreign patent protection, one option is to file a patent application directly in the foreign country of interest within twelve months of filing the corresponding U.S. patent application in accordance with the patent laws of that foreign country. A second option (for most countries) is to initially file an international application (also known as a "PCT application[3]") within twelve months of filing the corresponding U.S. application, and then file in the foreign countries based off of the PCT application within 30 months of filing the corresponding U.S. application. It is important to note that a PCT application does not become a patent that provides exclusive rights. Rather, an application must be filed in each country/region based on the PCT application. The foreign applications will then be examined in the foreign country. Although the initial costs of filing a PCT application are less than those associated with filing in most foreign countries directly, the cost of filing and prosecuting the foreign patent applications can be expensive depending on the countries designated and number of applications.
C. Why Get a Patent?
The primary reason to get a patent is to protect market share (through exclusivity), but there are many other reasons to obtain a patent. For example, patents, just like other property rights, can generate revenue if sold or licensed. Also, being able to mark "patented" on a product can improve the public perception of the product, deter copying, and potentially lead to increased sales. Similarly, having one or more patents can help attract investors, especially for small or emerging companies. Yet another reason to obtain patents is to build a defensive patent portfolio. For example, many companies build or acquire large patent portfolios so that they can launch an offensive counter-attack if they are sued by a patent holder.
[1] In the United States, this can be extended via Patent Term Adjustment and Patent Term Extension.
[2] Art. 1, § 8, cl. 8.
[3] PCT stands for "Patent Cooperation Treaty," which is an international patent law treaty that unifies the procedures for obtaining patent protection in multiple countries.