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 What you should know
about patentsBy Mike Adams, Adams Technologies Inc. During the past two years, I have learned a great deal about the field of law called "intellectual property." This includes (but is not limited to) patents, trademarks, and copyrights. I am not an attorney, and I must admit that before I received an education, I was sadly misinformed about patents and patent law. I had been told that "Patents don't offer any protection against copying an invention. A minor modification in design or function was all that was needed in order to avoid infringement of a patent." I had also been told that "your best protection is to describe your invention in a document and mail it to yourself registered mail, in order to establish the date, and keep the sealed envelope until someone tries to copy the invention." These statements are simply not true! I felt that since there is so much misinformation about these issues, an article would be in order. Why are patents important to diemakers and diecutters? Some diemakers and diecutters have developed new products and processes for which they have obtained patents. Others may have developed innovations and are considering patenting them. I am aware of several diemakers that have obtained patents or have patents pending. These include Atlas, Container Graphics, and Southeastern. There may be many more. Diecutting companies or individual designers often obtain patents for a new style of container or other products. We also buy products every day that are patented or patent pending. What is a patent? "A patent for an invention is a grant of a property right by the Government to the inventor (or his or her heirs or assigns), acting through the Patent and Trademark Office. The term of the patent shall be 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121 or 365(c), from the date the earliest such application was filed, subject to the payment of maintenance fees. The right conferred by the patent grant extends only throughout the United States and its territories and possessions. The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States." (http://www.uspto.gov/web/offices/pac/doc/general/whatispa.htm) Why get a patent? Most inventors apply for a patent in order to realize a return on their efforts. Research and development costs money, sometimes a lot of money. A patent helps to insure that the costs associated with inventing the new device or technology can be earned back. As a matter of fact, most inventors would not spend the money if they felt it would be impossible to earn it back, and perhaps make some additional money in the process. Some may say that patents are anti-competitive. I disagree. I believe that without patent protection, most inventors would be unwilling to spend the effort, time, and money to bring innovations to the market. These innovations help to constantly raise the bar, to constantly improve the technology. Improving technology is not anti-competitive. What can be patented? "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," (http://www.uspto.gov/web/offices/pac/doc/general/what.htm) What kinds of patents may be issued? The U.S. Patent and Trademark Office (PTO) issues three different kinds of patents:
(http://www.nolo.com/PCTM/3overview.html#8) How does one get a patent? In theory, anyone can apply for a patent by simply submitting a form along with drawings or models, specifications and claims to the U.S Patent and Trademark Office (PTO). In practice, however, the PTO requires that the drawings, specifications, and claims be written in a specific style and follow a rigid set of guidelines. In my opinion, the best option is to obtain a lawyer specifically trained in the special field of intellectual property (IP). If you want to patent an invention on your own, an excellent resource is: Patent It Yourself, a book by David Pressman, (ISBN: 0-87337-395-2) Mr. Pressman also has a software package, Patent It Yourself software, available for download at: http://www.nolo.com/item/pyp12.html ($149.47) What is the nature of patent rights? "The grant confers "the right to exclude others from making, using, offering for sale or selling the invention throughout the United States or importing the invention into the United States" and its territories and possessions." (http://www.uspto.gov/web/offices/pac/doc/general/nature.htm) This means that the patent right is a negative right. It is the right to exclude others from making, using, offering for sale, selling, or importing any product that infringes on the patent. After the patent has expired, the inventor no longer has this right of exclusion. What is infringement? "Infringement of a patent consists of the unauthorized making, using, offering for sale or selling any patented invention within the United States or United States Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate Federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement." (http://www.uspto.gov/web/offices/pac/doc/general/infringe.htm) How are patent rights enforced? In some other countries, the respective governments may get involved in a patent infringement case and offer arbitration as a solution to the infringement. In the US, however, the only legal recourse to an inventor whose invention is being infringed is to bring a patent infringement action (lawsuit) against the infringing party. Unlike many other (sometimes frivolous) lawsuits, such as personal injury lawsuits, which are heard in state court, patent infringement suits are filed in federal court, or before the International Trade Commission (ITC), a federal agency. The purpose of such an action is to determine if infringement exists. In the US, as far as I know, such an action is the only way to prove that infringement exists. In most of these cases, a settlement is reached out of court, but they are still very expensive for both parties. What about changing the design to avoid infringing the patent? While it may be possible to do this with some patents, the broader the scope of the patent, the more difficult it is to avoid infringement. For example, if one were to patent a door as "having a knob that operates a latch for securing the door." it would be broader than the claim "having a circular knob that operates a latch for securing the door." However, even if the patent in question did contain the word "circular," and someone started selling square knobs, even though the device may not infringe literally, infringement may still be found under the doctrine of equivalents. The doctrine of equivalents is intended to prevent designing around a patent on hyper-technical grounds. Essentially, it considers whether the device or process does the same work in substantially the same way, to accomplish the same result as the invention. If an element of a device is "equivalent" to an element in the patented invention, then it can be found to be in infringement. A device element is equivalent if it performs the same function in the same way to achieve the same result. What about mailing the documentation to yourself? This procedure is one of many ways an inventor might use to help substantiate a date for their invention. If an inventor does not patent his idea, sooner or later, someone else might. Then the inventor must contest the patent and prove the preexistence of his design, if he wants to produce the invention. Merely verifying the date and details of an invention offers no patent protection under US law. Without a patent you have no recourse in preventing others from duplicating your design. Unless you have a patent in the US, anyone can reverse engineer any device and build or sell the device in the US. Should I apply for a patent on my invention? The decision to file for a US patent is dependent on the prospects for earning revenue from royalties, from the outright sale of the patent, or from developing the invention into a product offered for sale. The official fees for obtaining a patent can be at a minimum about a thousand dollars, if you attempt to patent it yourself, but if a patent attorney is involved, the attorney's fees can be five thousand or more in addition to the filing fees. If the invention is a good one, the cost for obtaining a patent is a small price to pay for the potential protection from infringement it offers. Most of all, a patent is the only legal device offered by the US government that grants the inventor the right to exclude others from infringing on the invention. Are Patents good for the US? In a society without patents, the little guys would suffer. Individual inventors would not be protected against having their invention exploited by large corporations. Patents provide a more level playing field where the individual can hope to compete with the conglomerate. Overall, I believe patents are a catalyst for invention, and an essential element in maintaining growth in productivity. This growth in productivity is a major contributor to the current economic condition in the US. Our free marketing system, of which patenting is a key part, has resulted in the prosperity and style of living we all enjoy.
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