When does the right to enforce patent protection begin? This question can be hard to answer, as your ability to enforce your patent can depend on several factors, including how far along you are in the patent application process. Learning a little more about patents should help you know when you're able to start enforcing your rights.

What is a Patent?

Patents are a way for inventors to gain protection for their inventions, including the ability to prevent others from using, distributing, or manufacturing their creations. You should be aware, however, that a patent only gives you the right to exclude. This means that you yourself may not even have the right to use your invention in some circumstances.

Therefore, patent rights are a form of negative rights. You must provide your consent before another person can use your invention in any way. If someone infringes on your patent, you have the ability to enforce your rights through a lawsuit. Should you win your lawsuit, you may be able to receive damages, and the court may also issue an injunction that prevents the other person from continuing to use your invention.

What is Patent Infringement?

Patent infringement occurs when someone uses a patented invention without the permission of the patent holder. During a patent infringement case, you will need to prove to the court that the created product is based on the claims that you included in your patent. You can also show that the product is the equivalent to your invention.

There are several different types of patents available, which means there are also multiple forms of patent infringement. If you are trying to decide if infringement has occurred, you need to check the claims of your patent and then compare them to the invention that you believe is infringing on your patent. When you find that the elements of the invention in question match the claims you included in your patent, an infringement exists.

What is Patent Enforcement?

When one files a lawsuit against another for infringement of a patent, this is known as patent enforcement.

A patent enforcement lawsuit can produce several results:

  • The plaintiff wins and receives monetary damages.
  • The plaintiff wins and the court issues an injunction.
  • The court decides that the patent is invalid and that no infringement occurred.

One of the ways that a defendant in a patent enforcement lawsuit could show a patent was invalid is by proving that it had expired. Patent enforcement can be very difficult and usually requires a great deal of research.

When Can You Enforce a Patent

Patent enforcement can only occur when you are the owner of a valid patent. The process of obtaining a valid patent requires several steps. During each step of the patenting process, you will have a certain amount of legal rights, although you may not yet have the ability to enforce your patent by filing a lawsuit.

Conception is the first step of the patent process. This is when you are coming up with your idea or your invention. During this stage, there may not yet be any physical records of your invention, meaning it is not yet patented and is not yet enforceable.

The next step in obtaining your patent is documentation. At this point, your invention should be recorded in documents that may be signed and dated. Once documentation occurs, you will have some legal rights to your invention.

The patent-pending stage means you have filed your patent application but have not yet received approval. You may need to wait as long as a year before your application completes processing. After achieving patent pending status, you will have legal protection, including a filing date that should shield you against infringement if you receive your full patent.

Finally, when your patent application is approved and your patent is granted, you will have full protection, meaning you will be able to file lawsuits to enforce your patent. Eventually, your patent will expire, and with it, your legal protection. The length of your patent protection depends on the type of patent that you hold:

  • Design Patents: 14 years.
  • Plant Patents: 17 years.
  • Utility Patents: 20 years.

Once your patent has expired, however, you can still file an infringement lawsuit if you can prove that the violation occurred while your patent was still valid.

If you need help determining when does the right to enforce patent protection begin, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.