Protecting Your Creations – Intellectual Property 101, Part 1: Patents

male hands typing on a laptop

Everyone is trying to come up with something new.  Every day we figure out a new way to overcome a previous difficulty.  Some days we write down something incredibly insightful and powerful.  In some meetings we doodle to avoid abject boredom and come up with what you think is a killer logo for something.  So now that you have something, how do you protect it, how do you make money from it, and how do you prevent others from taking your stuff.

This series of posts will give you a very high level knowledge of Intellectual Property legal protections.  By the time you get done reading this you will be able to better understand what the heck is a patent, why it is different from copyright and hopefully you will not be confused.  This is Intellectual Property 101, and today we talk about patents.

There are four different types of intellectual property that are recognized by some aspect of law.  The law may include by virtue of some statute or regulation.  It may also come about because of common practice.  The four types are: patents, trademarks, copyrights and trade secrets.

Patents – Your Invention, Your Idea

Patents are meant to protect ideas.  They are meant as a contract between you and a government whereby you get a monopoly on your idea for a limited time and at the end of that time, the whole world can use it, because you have to explain it well enough that others can do it.

Patents do not protect creative expression, like paintings or books.  Though I could patent a method of binding a book.  You could even patent a way to automatically author a book.  How the words are arranged, the sentences, and paragraphs can not be, though.

When you think of patents, you think of things like the light bulb.  With over 8,000,000 patents issued in the United States along, there are many other things in there.  Not only can I patent a light bulb, I can patent an improvement to the light bulb, a way of making a light bulb, and a way to buy that light bulb.

What is it Good For?

So, you get a patent, what can you do with it.  Does the Patent Office go out there and make sure nobody uses your idea without your permission?  No.  Think of a patent like a land deed.  That deed for land gives you the ability, if you want, to exclude others from your property.  Patents do the same thing for ideas.  Just because you have a patent, doesn’t mean you have to do anything with it, just like you don’t have to kick the kids off your lawn.  It is up to you to enforce your rights.

A patent lasts for about 20 years (give or take based on some nuances here and there) provided you pay some recurring fees.  During that time you have the monopoly to the idea described in your patent.  If you patented a green handled garden trowel, but didn’t describe the red handled variant, I am not stealing your idea by making and marketing the red handled garden trowel.

The Heart of the Patent – Claims

It is said that patents are the most valuable intellectual property right.  That may or may not be true given the reputational nature of business today.  What is true is that it is the most expensive to obtain and enforce.  It is also true that obtaining legal counsel as you embark on this path is essential.  If you have ever read the metes and bounds of your land deed and been confused, patent claims (which actually define what you own) are even more complicated in language and grammar.

Many people get caught up in reading what is explained in the patent’s body, or specification.  While you need to explain your invention in enough detail that others can practice it, lawyers pay attention to the claims.  Claims are where your property’s fences are.  Over many, many years of patent litigation, the form of those claims have gotten more and more complicated.  While Edison got by with “made as described, and secured to metallic wires, as set forth,” that is no longer the case.  Just look at Claim 1 for one of those new LED light bulbs.

Claims are what you are going to argue about.  A patent examiner is going to tell you that your claim is not worthy of a patent for some reason, and you are going to change the wording in the claim and maybe make some statement that they examiner got it wrong.  You will not be changing language in the body of the patent as that describes the universe within which the patent lies.  Going back to my metaphor of property, the specification describes the entire neighborhood and subdivision, while the claims describe the exact plot of land that is yours and not someone elses.

Different Types of Patents

I have talked about patents in a large broad sense.  The reality is that there are a few sub-types that we will talk about another day: design patents and short term patents (outside the United States) are just two of them.  The other sub-type is a provisional patent, which can be used as a very cost-effective way to protect some of your rights quickly and at lesser cost.

Limited Rights, Limited Effort – Provisional Patents

For small inventors, the provisional patent is a great alternative.  A provisional allows you to define your idea, establish when you had your idea and give you something to market.  What it doesn’t give you is something you can enforce.  That is because claims are not required, nor are they looked at.  So I could write a patent claim for whatever I want.  All a provisional does is allow you to say I had this kind of idea on this date.  If you are marketing your idea for funding, it also prevents the people you are talking to from saying they came up with the idea as well.  In the case of confidentiality agreements it makes the drafting of them a little easier as you can point to the provisional as the thing you are going to be talking about.

NOTE: Provisional patent applications give you no specific rights, other than the ability to file a later non-provisional patent application no later than one year from your provisional.  In that year, you can flesh out your ideas and maybe shop around for a buyer.  What you can’t do is sue someone for stealing it.

Conclusion? 

Large volumes have been written about patents, and this post is no different than some of them.  I am a believer in the patent system, though it needs some tweaks.  I think that you need some guarantee that you can protect your idea, if it is really new to the world.

Getting started on the path is easy.  I think that most skilled inventors can write their own provisional to a certain extent.  Describe your invention in exquisite detail, do up some good drawings and even include some thoughts as to why you are going to change the world with it.  Don’t write a claim, though.  When you get near the end of your one year, you should go find yourself a good patent attorney to take you to the next step.

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