Introduction to Patent Law

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Tucker Law

Fort Lauderdale, FL

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Patents provide an owner with a government issued limited monopoly with rights to stop others from making, using, or selling the invention for a fixed period of time. To obtain this limited monopoly, an inventor must disclose to somebody of ordinary skill in the pertinent art how to make or use the invention without undue experimentation. Patents serve as a reward to the inventor, as well as to encourage innovation. The ultimate goal is that by granting monopoly rights for a limited period of time, the public will be able to use this information for the public’s benefit after the patent rights expire.

Two Main Types of Patents

Inventions are typically filed as either a utility patent application or a design patent application. Utility patents can protect the structure and function of the invention, whereas a design patent protects the ornamental configuration or surface decoration. In many cases, utility and design patents can be used together to create different legal rights. Many companies will typically start with utility applications before filing design patents, or filing many applications in unison.

Utility Patent

Utility patents expire 20 years after the date the application from the date of first filing, including those utility patents that claim a benefit to an earlier filed application. In many cases, the effect of a company’s patent portfolio is felt long after the patents expire because the company will have gained market shares and brand recognition over the 20 year period.

Utility patent applications include provisional patent applications and non-provisional patent applications. Provisional patent applications are considered to be less formal than a non-provisional patent application at least because they do not require patent claims. In addition, a provisional patent will not be examined by the patent office. Instead, the inventor must later file a non-provisional patent application, which will then place the invention in line at the USPTO for examination.

Provisional patent applications are helpful when the idea needs development or refinement. In many cases, a final product will differ substantially for your prototype or idea at the beginning of the patent process. The provisional patent application is a tool that will provide a full year to develop your product, and in many other cases, seek seed funding from investors, before filing a non-provisional patent.

Design Patent

Design patents expire 14 years from the date of issuance. A patent attorney can extend the life of a design patent by properly claiming benefit to one or more non-provisional patent applications.

The ornamental design may be embodied in an entire or particle, but it can also be embodied by only a portion of an article or simply ornamentation applied to an article. Ghost lines can be used to claim surface ornamentation. While design patents can have multiple embodiments, design applications only include a single claim. Therefore, if there is no apparent relationship between two or more articles, then the embodiments must be filed in separate applications. For example, two embodiments of a chair with minimal differences in the configurations may be filed in a single application, whereas two embodiments of a chair with distinct appearances must be filed in separate design patent applications.

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