What is “intellectual property?” The World Intellectual Property Organization defines it as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce” that can be legally protected by copyrights, trademarks, and patents.

The legal protections that defend intellectual property are crucial to fostering an environment where creativity and innovation can flourish, but it can be easy to confuse copyrights, trademarks, and patents. Though they share a similar purpose, they differ widely in their methods of attainment and types and durations of protection granted.

Today, in the last of our three-part series covering the three types of intellectual property protection, our small business lawyers will provide an overview of patents. To learn more about intellectual property and business law, read parts one (What is a Copyright?) and two (What is a Trademark?) of this series, or contact our qualified business attorneys at Patrick Harper & Dixon, LLC.

What is a patent?

A patent is the grant of a property right for an invention or discovery to the inventor or discoverer. It allows the patent holder to control how the invention is used for a specified period of time and enjoy financial gain from the work.

While trademark protection was created in the 1946 Lanham Act, and copyright law was laid out in the United States Constitution, patent law is older than the Constitution itself. Our oldest evidence for patent rights dates back to ancient Greece, when creators of unique culinary dishes could claim exclusive profits from the meal for up to a year. Under British rule, the American colonies each enforced their own patent statutes.

Our modern patent laws were established in 1790, with the introduction of the U.S. Patent Act. The first US Patent was issued on July 31, 1790 to Samuel Hopkins for the process of making potash, an ingredient used in fertilizer. You can search the United States patent database on the U.S. Patent and Trademark Office (USPTO) website. Federal patent law has gone through many revisions since then, each one designed to improve processes and protections for inventors and the public alike.

There are three types of patents:

  1. Utility patents — for the invention, discovery, or improvement of a new and useful process, machine, article of manufacture, or composition of matter.
  2. Design patents — for the invention of a new, original, and ornamental design for an article of manufacture.
  3. Plant patents — for the invention, discovery, or asexual reproduction of a distinct and new variety of plant.

Utility and design patents are the most commonly sought after types of patents.

What is a patent’s purpose?

Patents are designed to encourage innovation and the commercialization of technological advances by incentivizing inventors to publicly disclose their creations or discoveries in exchange for exclusive rights.

What is protected by a patent?

According to the language of the federal patent statutes, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”

Some things are never eligible for legal patent protection. For example, the 1954 Atomic Energy Act prohibits patenting inventions whose sole use is in the utilization of nuclear material or atomic energy in an atomic weapon. Laws of nature, physical phenomena, and abstract ideas cannot be patented.

What are the requirements for patent protection?

Although eligibility for patent protection depends on the type of patent desired, generally, patents are granted under four conditions:

  1. The invention can be reasonably classified as a process, machine, manufacture, composition, or a “new use” of any of these classifications.
  2. The invention is useful — it has a useful purpose and performs its intended purpose.
  3. The invention is novel — it has a feature(s) that sets it apart from previous inventions and is unknown to the public.
  4. The invention’s novelty must be non-obvious — a person who is skilled in the area or industry of the patent would not be able to recognize the invention as an obvious or already-known solution, but rather as an unexpected or surprising development.

What rights are granted by patents?

A patent grant confers “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States. The inventor is responsible for enforcing their own patent.

How is patent protection granted?

Unlike copyright protection, which is automatically granted at the time of creation and reinforced by registration with the U.S. Copyright Office, or trademark protection, which can be claimed under “common law” with commercial use until registered with the USPTO, patents are not automatically granted. Patents are granted by the USPTO in exchange for public disclosure of the invention or discovery.

Only the inventor may apply for a patent on his or her idea. They must provide a complete description of the invention and prove that it is useful, novel, and non-obvious in its novelty. Patents cannot be obtained on the mere idea of an invention, but rather the proven prototype or detailed design of one.

The process to obtain a patent is typically expensive, complicated, and time-consuming, and it is ill-advised to apply without the guidance of an experienced patent attorney.

How long does patent protection last?

Utility patents and plant patents last for 20 years from the application date. Design patents last for 14 or 15 years (14 years if filed before May 13, 2015 and 15 years if filed on or after that date). Once the term of protection has passed, the protected material passes into the public domain and can be freely used by anyone.

Overlap with other types of intellectual property:

Some creative processes or inventions are eligible for both copyright and patent protection. For example, a computer program may have copyright protection for its artistic elements and patent protection for its functional aspects.

To learn more about intellectual property law, or to start the process of obtaining a patent for your work, you can contact our team of corporate attorneys at Patrick Harper & Dixon LLC. Our small business law firm proudly serves the residents in and around Hickory, North Carolina. We have the experience and knowledge to tackle any business law challenge, and we can find a creative solution for you. Contact us today for expert legal guidance in all aspects of corporate law and elder law.