Hullabalog is pleased to welcome back Mr. Ken Parker ‘91.  Ken went to that law school down the road and now lives in Southern California with his wife (1990) and three children.  Ken is a partner in the law firm of Teuton, Loewy & Parker LLP, where he handles intellectual property litigation nationwide, including patent, trademark and copyright litigation.  In his spare time, Ken longs for the return of the Wrecking Crew.  ♦

This is Part Three of a three-part series titled, Trademarks, Copyrights and Patents—A Business Primer.   Read Part One here.  Read Part Two here.

Enjoy his post…

PATENTS

A patent for an invention is the grant of a property right to the inventor, issued by the USPTO. Generally, a new patent is good for twenty years from the date on which the owner filed the application for the patent in the U.S.  U.S. patent grants are only good within the United States and its territories.

Benefits of Patent Rights

A patent owner has “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent (almost always in federal court) without help from the government.

Types of Patents

There are three types of patents:

1)  Utility patents protect new and useful processes, machines, products, or composition of matter, or any new and useful improvement thereof;

2)  Design patents protect new, original, and ornamental (nonfunctional) designs for a product; and

3)   Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.    

The remainder of this entry focuses briefly on utility patents, which are the most commonly known among non-lawyers. 

Obtaining a Patent

A patent can only be obtained on a new (not obvious) and useful invention.  Thus, inventions that are already known or “obvious” to people who know the particular area of the invention are not patentable.  It is commonly thought that, despite this requirement, the USPTO issues patents on inventions that are not “new” because the USPTO is not well-funded and well-staffed enough to fully investigate each application exhaustively.

Unlike copyrights and trademarks, an inventor (or his employer) can only obtain patent protection by applying for and obtaining a patent with the USPTO.  This is a one year (at best) to two year process that should almost never be undertaken without an attorney admitted to practice before the USPTO.  Obtaining a patent may cost from $7500 to $25,000 or more, depending upon the topic area and how much a business or inventor wants to invest in the “quality” and “strength” of the patent.  Invention services may also work, but I have no idea of the quality of their services.

Patent Fringe Benefits

In addition to allowing the owner the “ability to exclude” others from making, using, selling, or importing the patented product or process, patent ownership may have some other benefits.  For start-ups, it provides a valuable asset that many investors like to see.  For other companies, it may provide an asset that can be used defensively against others in the industry or provide a “bargaining chip” to use if the company is accused of infringing someone else’s patent.

 

Hopefully this series has provided a useful high-level overview to non-lawyers of these three forms of intellectual property.