An infinite number of men will sell publicly and unhindered things of the very highest price, without leave from the Master of it; while it never was theirs nor in their power; and human justice will not prevent it. - Leonardo da Vinci (The first modern patent law was developed in the Republic of Venice in 1474, when da Vinci was 22, but da Vinci preferred coded notebooks to relying on the laws in their infancy and never obtained a patent.)

A patent is a time-limited grant by a government to an inventor to exclude others from making, using, or selling the invention. A United States patent does not create a monopoly, but it gives the patent owner the right through the United States Patent and Trademark Office (“USPTO”) to exclude others from making, using or selling the invention covered by the patent. Strict legal requirements must be met before a patent is granted, and it is subject to judicial review in the United States District Court, when enforcement of the patent from infringement is sought.

The patent's “right to exclude” provides a way of limiting or controlling competition. Obtaining the patent is important to protect investment in new product or process developments, to prevent others from obtaining a dominant patent position on technology the company may use, and to generate income through licensing. In the case of an infringement of the patent, the Federal Courts will protect the patent owner's technology rights. Without patent protection, publicly available products can be reverse engineered or copied by  competitors. The value of the patent depends upon the invention itself and the expertise of the attorneys who prepare and prosecute the patent application. Patents are assets that protect growth and can considerably enhance the company's valuation, making it more attractive to inventors.

There are three kinds of patents in the United States: (1) a utility patent covering functional aspects of products and processes; (2) a design patent covering ornamental design; and (3) a plant patent covering a new variety of living plant. Some foreign countries also have a fourth kind of patent, a so-called “petty patent” or utility model. In the U.S. utility and plant patents are granted for 20 years from the date of filing. Design patents are for 14 years.

The United States also has a procedure permitting a so-called “provisional application”. A provisional application, while not providing any exclusionary rights, may offer certain cost advantages over a regular utility patent filing to a cash-strapped applicant. Provisional applications are not examined, and do not mature into exclusionary patent rights.

To be deserving of a valid patent, the invention as defined in the patent claims must meet several key tests:

  • The test of novelty, meaning that the invention is not anticipated by being identical to technology disclosed in a single piece of prior art;
  • The test of non-obviousness meaning that the invention, although new, must be different enough that it is not “obvious” in view of the prior art; and
  • The patent specification must contain a written description of the invention in such full, clear, concise and exact terms as to enable any person skilled in the art to which it pertains to make or use the same. The disclosure also must set forth the best mode contemplated by the inventor of carrying out the invention, and the disclosure must conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Often, the best mode will be the commercialized version of the invention.

The patent “claims” define and specifically set forth the scope and limits of the invention. It is the claims which determine the patent owner's right of exclusion and thus, whether or not there has been an infringement. For an infringement to be found, each and every element of a given claim, or its equivalent, must be contained in the accused device.

Hayes Soloway has helped many of the Fortune Global 500 businesses, small and emerging businesses, and independent inventors obtain the patent protection they need. See a sample of the patents we have helped clients acquire and let us help you obtain a patent. If you are in New Hampshire or Arizona, come in for a consultation.

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