Ever wondered who grants patents? The answer to this will largely depend on your location.

What Is a Patent?

A patent is a right given to an inventor, giving him or her exclusive rights to an invention. A patent provides that exclusive right to a process or product that offers a technical solution to a common problem or provides a new way to do something. In order to start the process of obtaining a patent, an inventor must disclose technical information about their invention via an application for a patent.

The owner of the patent can give permission for other parties to use or sell the patent, as long as this happens in accordance with terms upon which both parties agree. The patent owner also has the option to sell the patent rights to someone else, who then becomes the patent owner. A patent has an expiration date, and when that date is reached, the invention goes into the public domain. Public domain means anyone can use, manufacture, sell, and commercially gain from the invention without violating the patent terms.

A patent could be granted for a newly manufactured product, a new machine, or a new industrial process, as well as for a significant improvement to something in any of these categories. A patent is also given for new food items, chemical compounds, and medicines, along with any type of process used to create and produce the product. In certain countries, a patent can be obtained for new types of animal or plant life that have been developed and created by genetic engineering.

History of Patents

The first patent recorded in history was given in Florence in 1421. This patent was given to protect an industrial invention made by an engineer and architect, Filippo Brunelleschi. He created a barge that contained hoisting gear and was used for marble transport, and this patent protected the invention for three years.

Over the next few centuries, several other inventors in Italy and other countries in Europe were granted patents for their inventions. For many of these inventors, the patents were issued by the government for the establishment and importation of new industries. For example, Queen Elizabeth granted patents during her reign in England between 1558 and 1603.

One of the issues with Queen Elizabeth and other members of the monarchy granting patents was the concern of abuse of authority. The Privy Council and common-law courts got involved in the patent review and approval process to prevent the English crown from granting patents to inventors. In response to these concerns, the Statute of Monopolies was enacted by Parliament in 1623. This statute preserved the right of inventors to receive patents for their inventions and protected their inventions for 14 years. This statute also prohibited royal monopolies.

Who Grants Patents?

Upon approval of a patent application, the applicant will receive the certificate of the grant of a patent. Before the approval can happen, the applicant must pay the fee. Patents are granted by either a national patent office or a regional office that handles patents for multiple countries.

The main regional patent offices that are currently in operation are:

  • The African Intellectual Property Organization (OAPI)
  • Patent Office of the Cooperation Council for the Arab States of the Gulf (GCC Patent Office)
  • African Regional Intellectual Property Organization (ARIPO)
  • European Patent Office (EPO)
  • Eurasian Patent Organization (EAPO)

When filing with a regional office, the inventor would file for patent protection in at least one of the member states that fall under that regional organization. As long as all criteria for the regional patent are met, the regional patent office will accept the application, and the protection is the same as what would be granted by a national organization. At this time, no international or universal patent granting system exists. When an applicant applies for a patent in Kenya, all granted patents are registered and quickly published in the Industrial Property Journal or the Kenya Gazette.

Law That Governs the Power to Grant Both Patents and Copyrights

The power given to Congress to grant copyrights and patents is outlined in the United States Constitution, Article I, Section 8, Clause 8. It is also referred to as the Intellectual Property Clause. For a patent attorney, this clause is typically known as the Patent Clause, although attorneys specializing in copyright laws often call it the Copyright Clause.

Importance of Intellectual Property Rights

The founding fathers of the nation believed that intellectual property rights were so important that they wrote protection laws around them into the Constitution. These rights were vital to the stability and success of the new country, which is why they were outlined in the document that didn't include many other specifics. In Federalist Paper number 43, James Madison stated that one of the roles of Congress was to award copyrights and patents. According to the document, that power would be scarcely questioned.

Additionally, when the Constitution framers came together in Philadelphia to discuss which powers should be granted to the national government, they seem to have been unanimous about the decision to include the power to grant copyrights. When considering the copyright clause of the Constitution, these meetings were held in secret. The final clause was included without any debate.

Congressional Power

Congress has the power to grant copyrights and patents. In fact, the ultimate decision for granting intellectual property protection, in the form of a patent or a copyright, lies with Congress. However, the Constitution doesn't expressly state that Congress must award patent or copyright protection. According to a decision by the Supreme Court, Clause 8 of the Constitution includes an enabling provision that allows Congress to opt out of any action in regard to materials that could qualify for intellectual property protection.

The history of the federal copyright statutes allows Congress to make a determination when considering certain classes of writings based on how important the product may be to the economy of the country, as well as its commercial importance. Although it's not necessarily required, Congress has continued to grant copyrights and patents since the first copyright statute was enacted in 1790, as well as the first patent statute in 1790.

The U.S. Constitution grants the power to Congress to enact and modify legislation around intellectual property to promote progression in useful arts and sciences. In this case, the word sciences refers to subject matter that is potentially copyrightable, while useful arts refers to inventions that are protectable under patent laws.

The father of the Patent Act of 1952, Giles Sutherland Rich, addressed the audience at the Franklin Pierce Law Center in 1994. In this address, Rich explained that the meaning of common words has changed over the years and will continue to change. In 1787, when early legislation around intellectual property protection was enacted, the word science didn't have the same meaning as it has today. In that time, it was called natural philosophy. When the authors of the Constitution talked about science and useful arts, the intent was to grant protection to inventors and those in need of copyrights.

Federal judges often reference the Constitutional protections, but it's important to take the words at face value and remember that useful arts and sciences had different meanings at the time. When members of Congress make decisions around potential protections, they must consider these different meanings. Although the language included in the Constitution has evolved, both copyright and patent laws promote the changes by providing the right to exclude others. This exclusive right is only available for a limited amount of time. It exists as an incentive to entrepreneurs, inventors, and corporations, allowing them to engage in development and research while spending the capital resources, money, and time needed to create inventions that will be useful.

These products should have a positive effect on society, including cures and treatments that could potentially save lives. The idea behind the clause for intellectual property protection is the concept that personal gain allows talented individuals to advance aspects of public welfare. In order to encourage inventors to share their ideas and inventions, instead of keeping them secret, the U.S. Congress has the power to secure a monopoly lasting for 17 years.

The exclusive rights are granted for a set period of time, encouraging innovative individuals to create new works. This right also helps stimulate activity in certain industries, which can boost enrichment in the nation's society. In order to achieve this goal, an inventor must be able to reap the rewards of their efforts.

The Copyright Act has continued to be changed and modified since it was enacted in 1790. Three of the most critical changes include:

  • The Copyright Act of 1909
  • The Copyright Act of 1976
  • The Digital Millennium Copyright Act (passed in 1998 by the 105th Congress, second section)

Additionally, the initial Patent Act has gone through modifications and changes, although not quite as much as the Copyright Act. The legislation protecting copyrights has become of special interest to many, with unique provisions that are meant to please lobbyists and special interest groups. This doesn't mean that the Patent Act doesn't cater to certain interests, but, as a whole, it is more cohesive and stable than the Copyright Act.

Efforts to reform patent legislation are underway in Congress, which means it is likely that the Patent Act will eventually include provisions to appease special interest groups that may not benefit the public in a positive way. Several major changes to the Patent Act have taken place, including a major revision in 1952. It was also revised in 1999 when the American Inventors Protection Act was enacted, amending Title 35 in several key areas.

If you need help with filing a patent application, you can post your legal need 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.