As an intellectual property attorney, one of my responsibilities is to help people understand the different types of intellectual property and what each type covers. This month, I will explain what a patent is and what it covers.
Patents are a grant of intellectual property by a government. In the United States, the government agency that grants patent rights is the United States Patent and Trademark Office (USPTO). The patent gives you the right to exclude others from making, importing, or selling your invention for a limited time.
What a patent does and doesn’t cover
Patents cover inventions. Any useful, new, or nonobvious invention is (mostly) eligible for patent protection. For artwork or movies, or music, patent protection is not possible. For those types of creation, we look to copyright law. For logos, slogans, and trade names, we look to trademark law.
Types of patents
In addition to traditional inventions, patents can also cover certain asexual plants that are created by human input. There are also patents that cover the ornamental design of a product. Design patents cover any new and nonobvious ornamental design that does not have any function other than being ornamental. But in most cases, when someone thinks about a patent, it covers a more traditional and functional invention. These patents are called utility patents.
Patent vs. trade secret
An alternative to patent protection is trade secret. The downside to a patent is that it is only enforceable for a limited amount of time. In the case of utility patents, it can be enforced for 20 years from the date of filing (as long as periodic maintenance fees are paid). Another downside is that the information in the patent is available to the public. This is how patents work. The inventor gets certain rights in exchange for providing the knowledge to the public.
In contrast, a trade secret exists as long as the information remains a secret. There is no formal registration, and the only way to protect the information is by way of confidentiality agreements. For some inventions and information, it is not possible to keep the information a secret. A machine or product can easily be reverse-engineered. Of note, chemical formulations are more amenable to being kept as trade secrets. The formula for WD-40 is a great example of a trade secret. Another downside is that once the trade secret is no longer a secret, there is no protection.
The benefits of patents
Patents can be very powerful corporate assets. They can increase the value of a company because the patent provides the company with a competitive advantage. For my clients, which are almost exclusively small and medium sized enterprises (SMEs), they can keep other people away from the technology covered by their patent or patents.
So in summary, patents typically cover useful inventions. The invention needs to be new and nonobvious. There is a formal application process to obtain patent protection, and the duration of patent protection is limited. An alternative option in some cases is a trade secret.
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