FAQs: About Patents
What is a patent?
A United States patent is a grant of a property right by the U.S. Government to the inventor to "exclude others from making, using, or selling the invention." Patents are granted for a term of 20 years from filing (14 years from issuance for design patents). After expiration of the term, the property right becomes public domain. For more information on Patent Drafting and Prosecution, see the
Albany Law School syllabus, taught by Managing Partner,
Arlen L. Olsen.
When to obtain a patent
A valid patent may not be obtained if the invention was in public use or on sale in the U.S. for more than one year prior to the filing of your patent application. Your own use and sale of the invention more than one year before your application is filed will bar your right to a patent just as effectively as if this use and sale had been done by someone else.
Ownership and sale of patent rights
The inventor may sell all of his interest in the patent application or patent to anyone by a properly worded assignment. The application must be filed in the Patent and Trademark Office as the invention of the true inventor, and not as the invention of the person who has purchased the invention from the inventor.
Patent protection in foreign countries
A United States patent protects your invention only in this country. Normally, a license must be obtained from the Commissioner of Patents and Trademarks before you can file for a patent in another country, unless the filing in another country occurs more than six months after the filing in this country, in which case, no license is necessary.
Types of patents
The patent law provides for the granting of patents in three major categories:
1. Utility patents
Are granted to anyone who invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof. "Process" means new industrial or technical processes. "Manufacture" refers to articles which are made. "Composition of matter" relates to chemical compositions and may include mixtures of ingredients, as well as new chemical compounds.
2. Design patents
Are granted to any person who has invented a new, original and ornamental design for an article of manufacture. The appearance of the article is protected.
3. Plant patents
Are granted to any person who has invented or discovered a new unobvious plant.
The terms "patent pending" and "patent applied for" are used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file. The law imposes a fine on those who use these terms falsely.
What constitutes patent infringement?
If a patent is valid and you have not misused it or engaged in inequitable or unlawful conduct with respect to it, the patent protects against the unauthorized manufacture, use or sale in the U.S. of all devices or processes embodying the invention or of components intended for assembly abroad into such devices, whether they were copied from authorized devices or resulted from an independent act of invention. It also protects against the importation, use of sale in the U.S. of a product made from a patented product without authorization, although there are numerous limitations to protect innocent infringers. Patent owners have been cautious in starting infringement proceedings because they generally are expensive and usually result in an attack against their patent's validity. But tribunals have been enforcing patent rights more frequently in recent years.
Remedies for patent infringement
There are no criminal penalties for patent infringement, but the following civil remedies are available under the federal law: (a)an injunction against future infringement; and (b)compensatory damages, in no event less than a reasonable royalty, which may be trebled (and additionally for infringing a design patent, the infringer's profits, but not less than $250.00). However, you can recover damages only if either the infringer was notified of the infringement and continued to infringe, or the patented article bore a patent notice.