Legal Effect of a Patent

by David Carnes
Patents protect creations, not abstract theories.

Patents protect creations, not abstract theories.

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A patent provides its owner legal monopoly on the right to make, use and sell an invention. The U.S. encourages invention by granting patents to help people profit from their ingenuity. In exchange for the patent, the inventor must publish details of his invention and allow anyone to use the technology after the patent expires.

Scope

A patent grants you exclusive rights over those features of your invention that are original, useful and ingenious. Inventions sometimes employ many different technologies and, as such, your patent may, or may not, cover every aspect of your invention. When you include technology covered by someone else's patent in your invention, you need permission from the other patent holder to make, use or sell your invention. If your invention includes a standard transistor, for example, your patent will not cover that part of the invention because someone else already invented it. You may, however, prevent anyone else from making, using or selling any patented aspect of your invention.

Duration

Most patents are valid for 20 years, although design patents are valid for 14 years only. The patent's term begins on the date the U.S. Patent and Trademark Office accepts your application; it can take up to two years or more for final approval. Your patent remains in "pending" status from the date it is accepted until the date it is approved.

Licensing

You can give someone else permission to use your patented technology by entering into a license agreement. Such an agreement may be necessary if you lack the resources to market your invention on your own. If you grant an exclusive license, you cannot grant a license to anyone else. If you grant a non-exclusive license, however, you are free to grant as many non-exclusive licenses to other parties as you wish. A licensing agreement allows you to seek payment in the form of royalties -- a percentage of your licensee's sales or profits. You may also seek a one-time, lump-sum payment.

Enforcement

Patent law, governed by federal law, requires you to sue for infringement in federal court. You cannot sue anyone for infringement during a patent's pending stage; you must wait until a patent is actually issued. After issuance occurs, however, you may sue an infringing party for an act that occurred during the pending status and may seek monetary damages equal to a reasonable royalty during the time your patent was infringed. The law also allows you to seek an injunction, in which the court orders a defendant to cease infringement activities.