A Patent is a set of exclusive rights issued by a government agency declaring someone the inventor of a new product and having the privelege of stopping others from making, using or selling the claimed invention. However, this set of rights does not necessarily grant the inventors the right to make, use or sell the inventions themselves. In order to do so, the patentee must sometimes comply with other laws and regulations.
The term patent is often confused with the terms copyright and trademark. A copyright is another set of government issued rights, but unlike a patent, it grants the right to copy and distribute a given idea or piece of information. A trademark is a distinctive sign of some kind, used by an organization to uniquely identify itself, its products and/or services to consumers, and to distinguish the organization from other organizations.
All three of these terms can be defined under the umbrella of intellectual property law which accounts for various legal entitlements attatched to certain types of information, ideas, or other intangibles.
- A pharmaceutical company may obtain a patent on a new drug but will be unable to market the drug without regulatory approval.
- An inventor may patent an improvement to a particular type of laser, but be unable to make or sell the new design without the owner of an earlier broader patent covering lasers of that type.
Legal Effect of Patents
It is crucial to understand that a patent is not the right to practice or use a specific invention - it provides the right to exclude others from making, using, selling or distributing a given invention for the term of the patent (usually 20 years). A patents should be considered a property right - it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned. In order for a patent to be granted, that is to take legal effect, the patent application must meet the requirements of the national law related to patentability.
Patents can be enforced through civil lawsuits and are rewarded with monetary compensation for past infringement. An important limitation on the ability of a patent owner to successfully assert his or her patent in civil litigation is the accused infringer's right to challenge the validity of that patent. The grounds on which a patent can be found invalid are set out in the relevant patent legislation and vary between countries. Often, the grounds are a sub-set of the requirements for patentability in the relevant country.
The majority of patent rights are usually resolved through a process known as patent licensing. Patent licensing agreements are contracts in which the owner agrees not to sue the licensee for infrengement of the licensor's patent rights, in return for a royalty or other form of payment.
It is common for competitors in these fields (retail invention) to license patents to each other under cross-licensing agreements in order to gain access to each other's patents. These agreements are desirable, because they permit both parties to profit off each other's inventions.
In order to obtain the grant of a patent, a person, either legal or natural, must file an application at a patent office with jurisdiction to grant a patent in the geographic area over which coverage is required. These offices include the United Kingdom Patent Office, or the United States Patent and Trademark Office (USPTO). Once the patent specification complies with the laws of the office concerned, a patent may be granted for the invention described and claimed by the specification.
The process of "negotiating" or "arguing" with a patent office for the grant of a patent, and interaction with a patent office with regard to a patent after its grant, is known as patent prosecution. Patent prosecution is distinct from patent litigation which relates to legal proceedings for infringement of a patent after it is granted.
Avoiding frauds and scams
Under the guise of obtaining patents for inventors, there are many unscrupulous individuals who attempt to take advantage of inventors and potential patentees. They offer to obtain a patent for a fee (of usually thousands of dollars) when patent applications are free and the entire process costs next to nothing.