• patents protect new and useful ideas, and some ornamental designs
  • patents give the owner monopoly-like rights to make, use and sell the invention
  • an inventor has no rights in their invention unless applied for and granted
  • successful examination requires a good application, which cannot be changed
  • an international patent application can be based on an earlier U.S. application

About Patents

Patents are about innovation — introducing new ideas, methods or things to advance some field of endeavor. Many inventions involve changes to improve an existing article or process, while others involve an entirely new article or unforeseen process. Inventions of this type are protected by utility patents.

There are also design patents and even plant patents. Design patents protect innovative visual appearances of articles. Although sometimes overlapping copyright protection, a design patent only protects an ornamental design as either applied to or embodied in some article.

The owner of any type of patent is granted powerful rights to keep others from making or using the invention anywhere in the United States or its territories or possessions. The patent rights also include the rights to keep others from selling the invention, or even offering it for sale. If the invention is a process, these rights extend to any product made by the process. Finally, the owner of a patent also has the right to prevent importation of the invention into the United States or its territories or possessions.

Depending on the type of patent, these rights can exist for up to 20 years from the filing date of the application, or 15 years from the date the patent is granted. The extensive rights provided by a patent are not just powerful, they are also sweeping. Although not technically a monopoly, patent rights are very often referred to as the “patent monopoly.” As a counterbalance, an inventor’s right to pursue a patent is fragile and very easily lost.

At least some trademark rights may be obtained through simple use of a mark. Similarly, at least some copyrights may be obtained by simply capturing the work, for example on paper or in a recording. An inventor, on the other hand, has no patent rights in the invention unless they are applied for and granted by the federal government.

To obtain patent rights in an invention or discovery, a properly prepared application must be filed with the U.S. Patent and Trademark Office. This application must be filed before any act that is considered a waiver of patent rights takes place. Most commonly, patent rights are lost due to the sale or offer for sale of an item including the invention or by disclosure of the invention to others. This issue is in reality complicated, however, and any question regarding waiver of rights should be addressed to a registered patent attorney.

Before rights are granted, the patent application must pass a strict examination to verify that the invention is new and not obvious. During this examination the patent applicant is given the opportunity to participate by responding to any negative action taken by the patent office. This generally entails providing evidence and making legal arguments that the invention is patentable. All communication with the patent office must be in writing.

Success is almost always determined by the details of the invention. These details must be found in the application as originally filed. The examination does not consider features of the invention that are not disclosed in the application, and the description of the invention cannot be changed after the application is filed. A properly prepared and complete application is critical.

International Rights

An international application can be filed as the original U.S. application or at the same time as a regular U.S. filing. The international application may also be filed after the regular U.S. application is filed. If so, it must be filed within a limited time period, which varies by type of invention, for the international application to be examined as if it had been filed on the same date as the U.S. application.

It is important to have the priority of the earlier application because many foreign countries have very strict laws regarding disclosures prior to filing. If the international application is not linked to the original application any disclosures, sales or offers for sale occurring after the U.S. filing and before the international filing will be used against the later filed international application in many countries.

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San Antonio, Texas