Basics: Patent

Understand the basic purpose and effects of patents.

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:

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 of authorship, fixed in a tangible form and with at least a minimal degree of creativity

Must be an invention that addresses patentable subject matter; must be a novel (new) invention; must not have been to someone with an ordinary level of skill in the field

Scope of coverage

Applies to a particular expression of an idea, but not the idea itself

Applies to implementations of the patented invention

Types of exclusive rights

Includes exclusive right to reproduce, distribute, publicly display/perform, prepare derivative works

Includes exclusive right to make, use, sell / offer to sell, import

Duration of protection (for new works today)

Varies; can be life of author + 70 years; or 95 years from first publication for works made for hire

Up to 20 years from filing date (requires payment of maintenance fees)

Resources