Nature of Protection
Patents are one of the several means to protect intellectual property, the other means being secrecy, copyright, and more. So, what do patents protect?
Utility patents protect the process, machinery, or any other article and improvements thereof. Design patents protect the design for an article of manufacture, and plant patents protect new plant varieties invented, discovered or produced by the inventor.
One important point to note is that a patent does not give the inventor the right to make, use, or sell the invention, but excludes others from performing such acts on the invention. The inventor’s right to make, use, or sell the product depends on the general laws applicable and the rights of others. For instance, an inventor having patented an automobile can prevent others from manufacturing or importing a similar automobile, but still cannot manufacture or import the same without obtaining the necessary licenses or paying the required taxes. Similarly, an inventor might patent a medicine, but cannot prescribe or sell the drug without compliance with the relevant food and drug laws.
Patents issued by the US Patent and Trademark Office normally protect the invention from others for 20 years from the date of application. Certain pharmaceuticals and other special circumstances have an extended period of protection. On expiry of the time limit, the inventor no longer has exclusive right to the patented invention, and anyone may make, use, sell, or import the invention without permission of the patentee.
The protection is, however, subject to the inventor paying the required maintenance fees, stipulated by the US Patent and Trademark Office. Such maintenance fees normally become due in three-and-half, seven-and-a-half, and eleven-and-a-half years, and is often high.
The patent normally protects the invention only within the country that grants the patent. For instance, patents issued by the US Patent and Trademark Office excludes others from making, buying, or selling the invention only in the United States, and does not offer any protection in Europe or elsewhere.
For protection outside the “home” country, an inventor needs to either apply for patent in each country where he or she requires protection, or make an international application.
Each country has its own patent laws, which may contradict United States patent law. For instance, in most countries publication of the invention before applying for the patent bars the right to a patent, whereas the United States patent law allows applying for a patent within one year of the inventor publishing the invention. Some countries may void a patent on failure of the inventor to manufacture the product in that country within three years.
The Paris Convention for the Protection of Industrial Property, an international treaty signed by 168 countries provides the same rights to all applicants, regardless to nationality of the inventor. This treaty also allows deeming the date of the initial application in the inventors home country as the date of application in other countries, provided the application in other countries is made within the stipulated time period.
Another treaty, the Patent Cooperation Treaty, signed by 124 countries allows for international application through a centralized filing procedures and a standardized application format.
An understanding of what do patents protect is incomplete without the realization that the US Patent and Trademark Office only issues the patent and doesn’t enforce the same. Enforcement of the patent is up to the patent holder.
The common method to resolve patent disputes are through negotiations that culminate in patent licensing agreements or the infringer providing the patent holder with royalty. Failure of negotiations usually leads to lawsuits, at a federal district court where the infringer resides or the infringement occurs.
A review of patenting history suggests that patents protect the rights of inventors, and encourages diffusion of innovations and spreading of new ideas faster and easily.
- United States Patent and Trademark Office. “General Information Concerning Patents.” http://www.uspto.gov//web/offices/pac/doc/general/#patent. Retrieved March 30, 2011
- Moser, Petra. “What do Inventors Patent?” http://www-siepr.stanford.edu/programs/SST_Seminars/patrat602Stanford.pdf. Retrieved March 30, 2011.
- Michigan State University. “Frequently Asked Questions for Inventors.” http://www.technologies.msu.edu/inventor-FAQ.html#whatPatentProtect. retrieved March 30, 2011.
- Image Credit:fotopedia.com/Carol Guillaume under CC 2.0 license