A patent is the protection given to an inventor by
a government, including the United States, in order
to prohibit other people or companies from making,
using, or selling the invention. The main purpose
behind the granting of patents is to protect inventors
and their inventions, but it is widely recognized
that patents provide incentives for businesses to invest
in research and development, knowing that there is
a potential of having the market to themselves for
some period of time.
Business owners should think before deciding
to pursue a patent. First, they need to determine
whether the patent is a viable one and if it is worth
protecting. Any patent office requires that the patentable
product have an element of novelty. Accordingly
a patent search needs to be conducted to see if someone
else has either patented the same invention
or has a patent pending. This type of search can save
the inventor from filing an application for a patent
that already exists, saving both time and money.
If there is no conflict, then the inventor should
seek professional advice on whether the invention is
patentable by either the United States Patent and
Trademark Office (USPTO) or a foreign patent office, if
there is an intention to market or produce the product
overseas. The process of applying for a patent is
complicated and most inventors hire a patent expert
to file the application. Finally, patent experts also
help inventors determine whether their invention is
patentable, or whether the USPTO will consider the invention
for a patent. In the United States, patents are
only applicable to a process, a machine, an article of
manufacture, or composition of matter. To spot
patents in your business, owners should consider
whether their business utilizes a novel process in
manufacturing a certain good, or has invented a new
form of machinery. The USPTO also allows patents on
any improvement of a process, a machine, an article
of manufacture, or composition of matter. Such improvements
can very easily go unpatented, as businesses
may neglect minor improvements they might
have made to a pre-existing process or machine. Over
time, minor improvements on a process or machine
might pile up significantly, enough to make it economically
feasible and even advisable to apply for a patent.
The USPTO also provides guidance on what cannot
be patented. Importantly, the USPTO does not issue
patents for literary, dramatic, musical, or artistic
works. These
works are protected
by the United
States Copyright
Office. The USPTO also does not
issue patents for inventions that are not useful
or are offensive to public morality. Patent experts
can help a business determine whether the above
categories apply to their invention. There is also a
short window of time after an invention, in which patents
can be filed, so inventors must be alert to avoid
missing the filing deadline.
In determining whether filing a patent application
is economically advisable, the inventor or
company must weigh the costs of obtaining patent
protection versus the advantage of owning the
sole right to produce, market, license, and sell an invention.
However, as advantageous as owning a patent
may be, the process of acquiring one and maintaining
it over a span of years is expensive and time-consuming.
Inventors are required to pay a nonrefundable
filing fee to the USPTO. This fee covers the
cost of examining the patent application. If the USPTO
decides to grant the patent, the inventor will also need
to pay an issuance fee, which will only protect the invention
for a certain number of years, after which the
patent can be renewed with a maintenance fee. Each
country issues patents, so for products sold globally, patent
protection would need to be pursued in each country
where it is needed. This can certainly add up when
you consider the number of countries in Europe and
Asia. Moreover, in some industries, such as fashion, the
invention may become obsolete by the time the patent
is finally granted. The inventor should also consider the
expense of enforcing a patent once it is granted. Patent
infringement cases are costly and can take years to
work their way through the legal system.
So although the idea of holding a patent may seem
attractive initially, the process, time, and cost should be
carefully considered in light of the ultimate benefits.
Business Insights is hosted by the Law Firm of
Kumar, Prabhu, Patel & Banerjee, LLC. Sonjui L.
Kumar is a corporate, transactional attorney and a
founding partner of KPPB Law. Viraj Deshmukh is a
third year law student at Georgia State University
Law School.
Disclaimer: This article is for general information
purposes only, and does not constitute legal, tax,
or other professional advice.