This post is the first in a series written by Nashville attorney Shane Cortesi on patent protection.
Patents are important to companies for at least two reasons. First, patents held by the company can serve as barriers of entry in preventing competitors from introducing similar products. Second, patents held by third parties can prevent the company from introducing a product or, potentially, even entering a market altogether.
The most common type of patents are utility patents. Utility patents are by far the most common type of patents granted in the U.S. and protect useful processes, machines, articles of manufacture, and compositions that are new and not obvious. For a further discussion of these requirements, see my article on the requirements for obtaining a utility patent in the U.S. Types of inventions that are commonly protected by utility patents include medical devices, pharmaceuticals, machines and electronics. In addition, in some cases, it is possible to patent the use of software-based inventions. Unless certain exceptions apply, once issued, a utility patent will remain in effect until 20 years from the filing date of the first non-provisional application that gave rise to the utility patent.
Another type of patents are design patents. Design patents protect new, original, and ornamental designs. In general terms, design patents protect the way an article looks. If the design of an article is primarily dictated by the article’s function, a design patent probably is not the appropriate form of protection. Subject matter that potentially can be protected by design patents includes things like furniture (e.g., leg lamps), jewelry, and even potentially the shape of electronic devices. Design patents remain in effect until 14 years from the date the patent issued.
The third and final type of patents are plant patents. Plant patents are granted to those discovering and asexually reproducing a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. Plant patents form a small percentage of the issued U.S. patents. Like utility patents, unless certain exceptions apply, once issued, a plant patent will remain in effect until 20 years from the filing date of the first non-provisional application that gave rise to the plant patent.
In the United States, all three types of patents are granted by the federal government. Moreover, as opposed to granting one the right to practice an invention, patents grant one the right to exclude others from practicing an invention. In other words, while a patent may be used to block others, the granting of a patent does not mean that the inventor himself is free to practice the invention without infringing a patent of an earlier inventor. If you are concerned about patents held by third parties, a freedom to operate opinion, obtained from an attorney, may help alleviate some of your concerns.
© 2011 Shane V. Cortesi — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.