What Is A Patent?
Why should I care about patents?
I will never sue anyone for patent infringement, so why should I get one?
When should I care about a patent?
I’m ready to talk about my product/service to customer/manufacturers/investors. Is this a good time to care about a patent?
I didn’t know about the “public disclosure” or “offer for sale” rule. What do I do now?
I don’t want to miss an opportunity to talk to a potential customer/inventor, and I don’t have time to file a patent application before I do. Is there any way to do both?
What’s the difference between a patent, a trademark, and a copyright?
Q: What is a patent?
A: A “patent” is a set of exclusive rights granted by a sovereign state (such as the United States) to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. A patent protects the functionality (utility patent) or ornamental design (design patent) of an invention. The term of a utility patent in the US is 20 years from the date of filing of the utility patent application. The term of a design patent in the US is 15 years from the date of issuance (i.e., the date the design patent is granted).
Q: Why should I care about patents?
A: A patent can help protect the making, using, and/or selling of a product or service invented by members of your company. In doing so, you are protecting your investment in time and money bringing the product/service to market, including research and development, market research, customer development, etc.
Patents can also serve to encourage investment in your company. All investors want to see a return on their investment. Good ideas are readily adopted by others, and patents can be a tool in your toolbox to fight against unauthorized adoption. In this way, patents offer some protection for your investors’ money.
Patents also build up the value of your company. Patents are “property”, just like real estate, cash, and other assets. You can lease (i.e., license) or sell your patent in exchange for payment, called a “royalty” or “licensing fee”. Patents can also be used as collateral.
Q: I will never sue anyone for patent infringement, so why should I get one?
A: Patents can help protect your ability to do your business. There can only be one patent granted for an invention. Once you are granted your patent, no one else can be granted a patent for the same invention. Thus, even if you have no intention of enforcing your patent, your patent can prevent someone else from obtaining and enforcing a patent for the same invention against you.
Q: When should I care about a patent?
A: Before you need it! The patent application process can be lengthy. If you wait until you need one, then it’s already too late. So “file it before you need it”.
Q: I’m ready to talk about my product/service to customer/manufacturers/investors. Is this a good time to care about a patent?
A: Yes! In the US, and in most other countries, you must file a patent application for your invention before a “public disclosure” or “offer for sale” of your invention. This can include trade shows, demonstrations, presentations, published articles, posts on websites or social media, and even conversations with close friends and family. If you do not file before the public disclosure or offer for sale, then you may forfeit your patent rights forever. If there’s any doubt about whether your action will be considered a “public disclosure” or “offer for sale”, consult a patent attorney beforehand.
Q: I didn’t know about the “public disclosure” or “offer for sale” rule. What do I do now?
A: The US has a very limited 1-year grace period for public disclosures by the inventor(s). Consult a patent attorney to determine whether this may apply to your situation. The 1-year grace period, however, does not apply to offers for sale. Whenever possible, the safest thing to do is to act as if there is NO grace period.
Q: I don’t want to miss an opportunity to talk to a potential customer/inventor, and I don’t have time to file a patent application before I do. Is there any way to do both?
A: Maybe. Consider the liberal use of Non-Disclosure Agreements (NDA). A signed NDA will prevent your disclosure from being a “public” disclosure. However, take care that the NDA will not apply to an “offer for sale”.
Q: What’s the difference between a patent, a trademark, and a copyright?
A: Patents, trademarks, and copyrights are three different “tools” in your intellectual property “toolbox”. (Many consider trade secrets to be a fourth tool.) There is a small amount of overlap between the three tools, but mostly they are designed to complement each other.
In a nutshell, a patent protects the utility or ornamental design of the product or service you invented. A trademark protects the brand when used as an indication of the source of the product or service that you sell. A copyright protects any original work of authorship fixed in a tangible form.
For example, assume you invented an awesome widget. You call your widget “The Widget Wonder”. You then create presentations, brochures, web sites, newsletters, and/or social media posts to get the word out about The Widget Wonder. The utility or ornamental design of your awesome widget may be protected with a patent. The name or brand, “The Widget Wonder” may be protected as a trademark. Your presentations, brochures, web sites, newsletters, and social media posts may be protected with copyrights.
Three tools that do three different things that complement each other. When considering an IP strategy for your company, consider how all three may work together.
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