.. SPDX-License-Identifier: CC-BY-4.0 Copyright 2026 The Linux Foundation Basics: Patent ============== Understand the basic purpose and effects of patents. .. contents:: :local: :backlinks: none :depth: 1 Key takeaways ------------- * A patent protects an invention, and restricts others' ability to practice that invention. * Patents are not automatically granted, and require the inventor to apply for and demonstrate that their invention qualifies. * Rights under patents and copyrights overlap, but operate differently from each other. Details ------- Exclusive Rights ^^^^^^^^^^^^^^^^ The owner of a patent is granted a variety of *exclusive* rights to their invention under applicable patent laws. In the United States, under `35 U.S.C. § 271 `__, these include the exclusive right to: * **make** the invention; * **use** the invention; * **sell or offer to sell** the invention; or * **import the invention** into the United States. Patent Requirements ^^^^^^^^^^^^^^^^^^^ Not all developments qualify for patent rights. In order to obtain a patent, the inventors must apply to the Patent Office (or equivalent in other countries) and demonstrate that their invention qualifies for a patent. In the United States, this includes demonstrating that the invention: * is for **patentable subject matter** (`35 U.S.C. § 101 `__); * is **novel** (`35 U.S.C. § 102 `__); and * is **non-obvious** (`35 U.S.C. § 103 `__). The application process involves drafting and submitting an application that extensively describes the patented invention, together with the specific scope of claims being made. The application will generally be published around 18 months following submission. The ability for software, or inventions involving software, to be patentable is a complex topic that is outside the scope of this guidance. For present purposes, assume that some software-related patents can be valid under United States patent laws. Differences between Copyrights and Patents ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ Both copyrights and patents can apply to software. However, they protect different rights and have different effects, a few of which are summarized below: +---------------------+---------------------------+------------------------------+ | Topic | Copyrights | Patents | +=====================+===========================+==============================+ | How obtained | Automatic vesting | Apply, pay fee, and convince | | | | Patent Office to issue | +---------------------+---------------------------+------------------------------+ | Requirements | Must be an original work | Must be an invention that | | | of authorship, fixed in a | addresses patentable subject | | | tangible form and with at | matter; must be a novel (new)| | | least a minimal degree of | invention; must not have been| | | creativity | to someone with an ordinary | | | | level of skill in the field | +---------------------+---------------------------+------------------------------+ | Scope of coverage | Applies to a particular | Applies to *implementations* | | | *expression* of an idea, | of the patented invention | | | but not the idea itself | | +---------------------+---------------------------+------------------------------+ | Types of exclusive | Includes exclusive right | Includes exclusive right to | | rights | to reproduce, distribute, | make, use, sell / offer to | | | publicly display/perform, | sell, import | | | prepare derivative works | | +---------------------+---------------------------+------------------------------+ | Duration of | Varies; can be life of | Up to 20 years from filing | | protection (for | author + 70 years; or | date (requires payment of | | new works today) | 95 years from first | maintenance fees) | | | publication for works | | | | made for hire | | +---------------------+---------------------------+------------------------------+ Resources --------- * The United States patent laws are codified in Title 35 of the United States Code. The Legal Information Institute at Cornell Law School makes available `an easily-browseable copy of the United States Code `__. * The United States Patent and Trademark Office has published `FAQs `__ with answers to basic questions about US patent laws. * `Open Invention Network (OIN) `__, an organization which has established a patent cross-licensing agreement among its member companies protecting its "Linux System Definition," has published a `glossary of common patent-related terms `__.