An Introduction to Patents

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Foley & Lardner LLPObtaining patents for your technology can be crucial to gaining market share, maintaining competitive advantage, and securing the funding needed to establish and grow your business.  The more your goods and services get noticed by competitors and potential investors, the more important patents become.  Patents are a form of legal protection for the intellectual assets of your business, and each patent can serve as both a sword and a shield.  .  A patent may be your first thought in protecting your ideas, but patents can be confusing at first.  Let’s take a brief look at the broader category of intellectual property first and then discuss the different types of patents.

Ownership of physical objects is relatively straightforward.  If you alone own your car, someone who takes it without your permission would be stealing.  Other people may have identical cars—the same make and model, the same color, but they would not have your specific car.

An idea, however, is not so limited.  Ideas can be shared.  The information can be copied.  Two people can possess the same information at the same time and therefore have the same idea.  An idea that you have could be taken by a competitor and used to gain an advantage against your company.  And that’s where intellectual property law comes in.  While an idea itself is not protected, the fruits of the ideas (such as creative works, business goodwill, and technologies based on one’s knowledge) can be protected if the right steps are taken at the right time.

Intellectual property in the United States encompasses four broad categories: patents, trademarks, copyrights, and trade secrets, and businesses routinely use all four forms of protecting their knowledge base.  A patent protects inventions so that as long as the patent is in force, the patent holder has “the right to exclude others from making, using, offering for sale, or selling the invention.”  A patent is intended to protect something new, whether that is a completely new invention or an improvement on an existing one.  Inventors develop new technology, and as a reward for disclosing their invention to the public in a patent application, can obtain exclusive rights to their inventions for a certain time.

The law recognizes three kinds of patents.  A utility patent protects functional ideas, such as a new process or an improved kind of machine.  New utility patents will last for twenty years from the filing date of the patent, and then anyone will be free to use the patented information without the inventor’s permission.    When most people think of a patent, they probably think of a utility patent, but other patent types are useful as well.

While a utility patent protects how something functions, a design patent protects how something looks.  An Apple design patent eventually led to the famous (or infamous) legal fight between Apple and Samsung over rounded corners.  Since appearances (within certain restrictions) can be patented (such as the appearance of a smart device or its user interface), many companies design their products to have distinctive and therefore patentable looks.  New design patents last fifteen years from the date the design patent is granted.

The last kind of patent is the plant patent, which covers the development of a new kind of plant.  The plant must be capable of being reproduced asexually (meaning that the offspring are genetically identical to the parent plant).  Plant patents last twenty years and are important legal protections for agricultural companies like Monsanto.  Without plant patents, some kinds of agricultural development would not be cost effective, since anyone could simply get seeds of the plant and grow for free what the company had spent time and effort designing.

Intellectual property law is an area where legal counsel is well advised.  Care must be taken with how your ideas are shared with others, and a patent application must be filed within certain windows of time, so waiting too long can mean rights are forfeited.  In general, to seek patent protection in the U.S., you have to file a patent application within one year of any public disclosure, launch, product release, offer for sale, or sale of a product or service embodying your invention.  Other jurisdictions such as Europe and China have more stringent standards and depending on the type of invention, require filing a patent application prior to divulgation of the invention.  While some aspects of intellectual property law may seem straightforward, intellectual property law is often not black and white, and when the basis of your company is at stake, expert advice can be critical to ensuring that your ideas are appropriately protected.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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