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FAQs About Intellectual Property
What is Intellectual Property?
Intellectual property is a term that generally covers intangible assets, or those things you can own but cannot physically touch. Examples include patents, trademarks, copyrights, trade secrets, rights of publicity, rights of privacy, domain name rights, industrial designs and moral rights. The ownership of an idea is different than the intuitive notion of the ownership of a physical thing, but ideas can be owned such as when they are reduced to real life applications and properly defined as in a patent application.
What is a patent?
A Patent is a type of personal property. The owner of a patent has the right to exclude others from making, selling, offering for sale, or importing the invention in the jurisdiction protected by the patent. For instance, a United States patent holder can exclude a manufacturer from importing the patented invention into the United States. The patent owner can also license his or her invention to the same or another manufacturer to make and sell the invention in the United States. The license itself gives the inventors permission to the manufacturer to make, use or sell the invention. The inventor can also grant a limited license to the manufacturer for just making the invention, or in the case of an end user, for using the invention. A patent, on the other hand, does not give patent owner himself or herself the exclusive right to use or make the patented invention, only the right to exclude others from doing so.
Where did patents in the United States come from?
The rights to patent protection are set forth by the United States Constitution in Article I, Section 8. The Patent Laws are found today in the United State Code, Title 35. Congress has changed the laws periodically over time, providing major changes to patent law in the Patent Acts of 1870, 1952, and 1974. In 1790, the first patent was issued for a method of making potash. The patent examiners at that time who examined the application were: Thomas Jefferson, then the Secretary of State, Edmund Jennings Randolph, then the Secretary of War, and Henry Knox, then the Secretary of the Treasury.
How many patent applications are filed each year in the United States?
The numbers of patent applications filed in the United States Patent and Trademark Office are increasing every year. For example, 152,750 utility patents were filed in 1989, 189,857 were filed in 1994, and 326,508 were filed in 2001.
What can be patented?
To be patentable, a new utility invention must be new, useful, and nonobvious to someone skilled in the art of making and using that invention. Examples of things that can be patented are systems, devices, methods, processes, articles of manufacture, and products of processes. This includes things such as computer software, genes, and business methods. It does not include abstract ideas, natural phenomena and laws of nature. There are also patents for plants and designs. Plant patents cover asexually reproduced plants and design patents cover the ornamental aspects of an invention. A utility patent to protect the functionality can be filed with a design patent to protect the ornamental design of the invention.
What makes up a patent application?
Utility patents consist of a written description of the subject matter and the invention which would enable any person skilled in the art of the invention to make and use the invention in the "mode" that the inventor considers to be the best, a drawing, if necessary, and the claims which are composed of a single sentence each and which define the metes and bounds of the invention, much like a property deed describes the metes and bounds of a physical property. Patent law only protects the claimed subject matter.
Who's in charge of issuing patents?
Patents are granted through the U.S. Patent and Trademark Office (PTO), currently headed by James E. Rogan, the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. He was nominated by President George W. Bush on May 25, 2001, and confirmed unanimously by the United States Senate on November 30, 2001. A patent is filed and "prosecuted" in the PTO until the patent is granted or rejected. After a patent is granted, an inventor can use the U.S. District Courts of the United States to initiate patent infringement litigation against others to prevent them from making, using or selling their claimed invention. In the patent office, the burden of proof is on the examiner to show why an invention does not deserve patent protection.
What is patent validity?
Issued United States patents are presumed valid until proven otherwise in court or in a proceeding before the PTO called a reexamination. In court, the burden of proof is on the alleged infringer to prove that a patent is not valid, and in the reexamination, the burden is on the PTO.
How much protection does a patent give?
Both Utility and Design Patents are national in scope and patent protection in other countries must be granted by those countries, in accordance with their patent laws. Through international conventions and treaties such as the Patent Cooperation Treaty and the Paris Convention, filing a patent application in one country can serve as a basis for pursuing protection in other countries.
What is patent infringement?
A patent is a legal document that allows the owner to prevent other people from making, using, selling or importing an invention that is covered by the patent. Patents have legal language, called "claims" that are similar to the metes and bounds of a property line. A patent infringement lawsuit is a lawsuit where a patent holder claims that another party is making, using, selling or importing the patent holder's invention, in violation of the patent.
What's the difference between the U.S. and other countries' systems?
The U.S. is one of the few countries to follow a "first-to-invent" rule of granting patents, where the date of invention is the guideline used for determining the priority of inventorship (as opposed to the "first-to-file" systems found in many other countries). As of May 2011, a change to this "first-to-invent" rule to make the United States a "first-to-file" country is being debated in Congress. Our U.S. patent system is also an "examination" system in which patent examiners perform prior art searches and scrutinize the patent application for novelty, utility, and nonobviousness (as opposed to other types of registration applications which are not completely reviewed.
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