Key Takeaways

  • Patent law grants inventors exclusive rights to their inventions for a limited time, incentivizing innovation.
  • Three primary types of patents exist: utility, design, and plant.
  • To be patentable, an invention must be novel, nonobvious, useful, and adequately described.
  • Patents do not grant the right to use an invention—only to exclude others from using it.
  • Maintenance fees are required to keep patents active; failure to pay may result in expiration.
  • Provisional applications offer temporary protection, while non-provisional applications are required for full patent rights.
  • Patent law plays a crucial role in global business and national economic strength.
  • An attorney can help navigate complex patent filings, disputes, and enforcement.

Patent Law: What Is It?

Patent law is part of intellectual property law and controls what inventions qualify for patents, the patent application process, and how patent infringement is handled.

If you want to get legal protection for your inventions, you should understand the basics of patent law. It may also benefit you to have some knowledge of overall intellectual property law, the background of patent law, what requirements an invention must meet before it qualifies for a patent, and some of the issues that make patent law difficult to navigate.

What Is a Patent?

A patent is a property right that gives an inventor the legal ability to stop others from making, using, or selling an invention for a certain amount of time.

There are three distinct types of patents:

  • A utility patent, which is the most common type, protects functional devices. Software patents fall under this umbrella, but are sometimes regarded as a different type of patent altogether.
  • A design patent covers non-functional, or aesthetic aspects of an item. Design patents are exclusive to the United States. Other countries have different intellectual property laws that protect designs.
  • A plant patent protects new varieties of plants.

Inventors may also submit a provisional patent application, which enables the inventor to label an invention as "patent pending" to warn away anyone who might want to copy the invention. You are also allowed to say that an invention has a patent pending if you have filed a non-provisional, or regular, patent application — even if the application hasn't been approved yet.

Note that patents only protect fully developed inventions, not ideas.

What Are the Requirements for Patentability?

Before a utility patent can protect an invention, it must meet the following requirements:

  • Patentable subject matter must be involved. The invention must fall into one of the categories of patentable items that the law defines. Generally, processes, devices, machines, and anything that can be manufactured are patentable. There is an ongoing debate about whether business methods and printed materials are patentable, but traditionally, they are not.
  • The invention must be useful.
  • The invention must be novel. It needs to have an element of newness to it. No one else may already hold a patent for the same invention.
  • The invention must be nonobvious. This means that no one with a basic knowledge of the type of item that was invented would find the invention to be obvious.
  • The inventor must be able to describe the invention in such detail that someone else would be able to make it based on your instructions. This principle is known as enablement. Part of enablement is describing the best way to make and use the invention. If you do not have a preferred method of using or making your invention, or if you did not think about the best way to make or use the invention, you cannot be accused of violating this requirement.

What Rights Does a Patent Grant?

A patent grants its holder two basic rights: the right to exclude and the right to sue infringers.

The Right to Exclude

This means that patent holder can stop others from making, using, or selling the invention. If others wish to use or sell your invention, you can either sell the patent or arrange a patent license agreement.

Note that a patent does not grant its holder the right to make or sell an invention. Other existing patents or local laws may affect an inventor's ability to use, sell, or make a patented invention.

The Right to Sue Infringers

Most patents have more than one claim. Claims are the section of the patent that lists which parts of the invention are protected. Only one claim must be violated before the patent holder can sue for infringement.

If you sue for infringement, a federal court may grant an injunction or a strict order that tells the guilty party to stop infringing on your patent, and you may be awarded damages.

Sometimes, when the government infringes on a patent, litigation or legal processes occur through the United States Claims Court. Keep in mind that the US government can use any patent invention without asking for permission, but when this happens, the patent holder has the right to ask for compensation from the government.

Patent Expiration and Maintenance Requirements

Patent protection is not indefinite. Utility patents in the U.S. generally last 20 years from the date of filing, while design patents typically last 15 years from the date of grant. However, this protection is contingent on meeting maintenance requirements.

To keep a utility patent active, the United States Patent and Trademark Office (USPTO) requires maintenance fees to be paid at 3.5, 7.5, and 11.5 years after the patent is granted. Failure to pay these fees results in the patent expiring before its full term ends. Once expired, the invention enters the public domain, and anyone may use it without needing permission from the original patent holder.

It’s worth noting that in some cases, an expired patent can be revived through a petition to the USPTO if the lapse was unintentional and the delay in payment is promptly addressed.

The Patent Application Process

The patent application process is complex. Here are some basics you need to know:

  • Only the inventor may file an application. A qualified attorney may also file on your behalf.
  • Patent applications require a high level of detail. The United States Patent and Trademark Office, which grants and issues patents, thoroughly examines all applications and can take years before an application is approved.
  • You should do an extensive search before applying. You can search the US Patent Database and Patent Application Database to see if anyone else already holds a patent for an invention like yours.
  • It is wise to hire an attorney. The attorney will be able to help with everything from research to dealing with the Patent Office when it begins to ask questions about your application.
  • You can ask for reconsideration. If you are notified that the USPTO has objections to your application — or has rejected it altogether — you can ask that the application be reconsidered, even if you haven't changed it to address the issues that the USPTO raised. When you receive a second rejection or a final rejection, you may file an appeal with the Board of Patent Appeals and Interferences.

If you are not happy with the decision from the Board of Patent Appeals and Interferences, there are other options for appeals that your attorney can guide you through such as going to the United States Court of Appeals or pursuing civil action against the Director in the United States District Court for the District of Columbia.

Provisional vs. Non-Provisional Patent Applications

Understanding the difference between provisional and non-provisional applications is essential when navigating patent law.

  • Provisional Application: This is a lower-cost, informal application that establishes an early filing date but does not result in a granted patent. It allows inventors to use the term "patent pending" for 12 months, during which they must file a corresponding non-provisional application to benefit from the earlier date.
  • Non-Provisional Application: This is the formal application required for a utility patent to be granted. It must include detailed claims, drawings (if applicable), and meet all formal requirements set by the USPTO.

The 12-month window between filing a provisional and non-provisional application is critical. Missing this deadline results in the loss of the priority filing date.

Patent Law: Part of Intellectual Property Law

Patent law falls under intellectual property law, which is otherwise known as IP law. IP law covers the following:

  • Patent law. This covers tangible inventions.
  • Copyright law. Copyrights cover written and artistic works.
  • Trademark law. Trademarks are registered symbols or names that identify a group, individual, or company.
  • Trade secret law. Trade secrets are methods, formulas, or devices that give a company a competitive edge. Companies may sue competitors or corporate spies who steal trade secrets.
  • Licensing law. A license gives its holder the right to carry out a specified task with an otherwise protected work, such as a piece of music. Licensing law may overlap with any of the other types of IP law.

How Patent Law Shapes Innovation and National Policy

Patent law is not just about protecting individual inventors—it plays a broader role in economic development and technological leadership. Countries with robust patent systems often see increased investment in research and development.

In the United States, patent law supports competitiveness by encouraging inventors to disclose innovations in exchange for exclusive rights. This disclosure enables others to build upon previous knowledge, thereby fueling further advancement.

Moreover, patent law can influence national policy in areas such as pharmaceuticals, defense, and clean energy by determining who controls critical technologies and for how long.

Why Is Patent Law Important?

Patent law is designed to encourage innovation and protect businesses. Successfully navigating patent law can give businesses and startups a distinct advantage against competitors who might otherwise try to steal new inventions.

Patent Prosecution vs. Patent Litigation

Patent prosecution refers to the legal process of obtaining a patent from the United States Patent and Trademark Office (USPTO). A patent prosecutor—typically a specialized attorney—assists inventors in preparing and filing patent applications and communicating with the USPTO throughout the examination process. This also includes patent counseling, where the attorney advises on whether an invention meets the requirements for patentability.

Patent litigation, on the other hand, involves resolving disputes over issued patents. A patent litigator represents clients in court, often handling cases related to patent infringement. This includes enforcing patent rights or defending against infringement claims.

Common Defenses in Patent Infringement Cases

When accused of patent infringement, a defendant typically raises one or both of the following defenses:

  • Challenging Patent Validity: The defendant may argue that the patent should not have been granted in the first place because it does not meet the legal standards of novelty, nonobviousness, or enablement. Since patents are presumed valid, the burden of proof lies with the party contesting the patent.
  • No Infringement Occurred: Alternatively, the accused party may demonstrate that their product or process does not infringe on any of the claims outlined in the patent. This often involves a detailed comparison between the accused product and the language of the patent claims.

Patent Law: A Long History

The Patent Act of 1790 began the long history of patents within the United States. James Madison, who has been called the Father of the Constitution, played an integral role in bringing patent rights to the newly formed country. The original motivation behind patent law was to "promote the progress of science and useful arts," however, patent law has evolved since that time.

Over the decades, patented inventions have played a significant role in society. For example, the cotton gin, Morse Code, and even the hula hoop were all protected by patents. However, despite all of the innovations that have been protected by patents, patent law does come with its own set of issues.

Issues With Patent Law

There are some problems associated with patent law that may require you to enlist the help of a patent attorney.

Concepts and Patents

In the past, there has been debate over whether a concept could qualify for a patent.

In the 1980s, a chiropractor, Robert Lech, was computerizing his office. He wanted to scan his documents into his computers. Lech's friend, Mitchell Medina, who had some experience with patent law, felt that the idea was too broad and obvious to qualify for a patent. However, a specific software program that formatted the scanned material would be much more likely to win a patent.

This was a new idea because before that, software was seldom patented and the situation presented legal challenges because software might have been considered more of a concept than anything else.

Too Many Patents

Because there are so many patents, it is difficult to innovate without risking a suit for patent infringement. Therefore, it is vital that inventors enlist the help of an attorney who has knowledge about a specific industry and who can guide the inventor through the patent process.

Broad Language in Patents

A patent battle in 2011 between Apple and Samsung illustrates another danger in the world of patent law: sometimes patents are too broad. Apple claimed that Samsung infringed on some of its smartphone ideas, but the descriptions in the patents did not seem very specific. While Apple won the lawsuit, Apple has had to battle several infringements suits in recent years.

Another famous patent battle happened in 2004 when Sony and Kodak sued each other for supposed patent infringements on components of digital cameras and camcorders. The battle ended in a cross-licensing agreement, where the companies granted each other the right to use their intellectual property.

Few Distinctions

One of the most controversial aspects of patent law is that it doesn't recognize differences between types of inventions. This is a difficult issue for industries in which innovation can take years. For example, medications often must go through years of tests before they are ready to be marketed, but a provisional patent lasts for only 12 months. This creates a weakness for the intellectual property of pharmaceutical companies.

Patent Eligibility and Emerging Technologies

One of the most debated topics in patent law today is the eligibility of emerging technologies, especially in the fields of software, artificial intelligence, and biotechnology.

While software can be patented, it must demonstrate a technical improvement or solve a specific problem in a novel way. Merely implementing an abstract idea through a computer does not meet the standard. In Alice Corp. v. CLS Bank International, the U.S. Supreme Court ruled that abstract ideas implemented on a generic computer are not eligible for patents, narrowing the scope of software patents.

Biotechnology innovations, such as genetically modified organisms or gene-editing techniques like CRISPR, raise questions about what constitutes a “product of nature” versus a patentable invention. These gray areas continue to evolve through legislation and court decisions.

Navigating Patent Law

Patents are a vital part of IP law. They protect inventions and encourage startups and large companies to come up with new ideas. They have played an important role in society since the Patent Act of 1790 first went into effect.

As the world has grown more complex, so has patent law. Some industries, such as technology and pharmaceuticals, have special challenges when it comes to dealing with IP issues. It is important that these types of companies — and really, any other sort of company — have the proper legal help when they are trying to get a patent, sue for patent infringement, or defend against infringement charges.

International Patent Protection

Patent protection is territorial, meaning a U.S. patent provides rights only within the United States. To secure rights in other countries, inventors must apply for patents in each jurisdiction where protection is sought.

The Patent Cooperation Treaty (PCT) simplifies this process by allowing inventors to file one international application, which can then be used to seek protection in over 150 member countries. However, individual national or regional patent offices still make the final decision on granting patents.

Navigating international patent law can be complex due to varying standards, fees, and timelines, making it critical to consult with a patent attorney experienced in global filings.

Frequently Asked Questions

1. How long does a patent last in the U.S.? A utility patent generally lasts 20 years from the filing date, provided maintenance fees are paid. Design patents last 15 years from the date of grant.

2. Can an expired patent be renewed? Sometimes. If a patent lapses due to non-payment of fees but the delay was unintentional, it may be revived through a petition to the USPTO.

3. Is software patentable under U.S. law? Yes, but only if it presents a novel and non-obvious technical solution. Abstract ideas implemented on generic hardware are not patentable.

4. What is the difference between a trademark and a patent? A patent protects inventions, while a trademark protects brand identifiers such as logos and product names.

5. Do I need international patents to protect my invention globally? Yes. A U.S. patent offers no protection abroad. You must file in other countries or use international systems like the PCT for broader protection.

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