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Businesses depend on inventive technology.  Whether they develop their own or operate using the technology of others, business management needs a basic understanding of patents and the opportunities they represent.  To that end, this memo addresses three questions:

  1. What are patentable inventions?
  2. What are utility and design patents?
  3. What are the limits on patents?

Patentable Inventions

A patentable invention may result when technology or design is used to solve a problem.  The U.S. patent law establishes the requirements for patenting an invention.

  • The invention must be useful. It must possess a practical utility. 35 U.S.C. § 101.
  • The invention must be patentable subject matter. It must be a machine, an article of manufacture, a composition of matter, or an improvement of one of these.  35 U.S.C. § 101.
  • The invention must be new. It must possess “novelty”, that is it cannot have been known to the public prior to filing an application for a patent.  35 U.S.C. § 102.
  • The invention must be “non-obvious.” Stated using the European standard, an invention must possess an “inventive step” over what was known before. 35 U.S.C. § 103.

These basic statutory provisions inform the initial decision of whether or not to pursue a patent.  Other requirements must be met to obtain a U.S. patent and will need to be considered.

Utility and Design Patents

What people typically call a “patent,” a “utility” patent is granted for technology inventions and has a term of 20 years.  A “design” patent, where art meets technology, is granted for the look or appearance of an article and has a patent term of 14 years.  To illustrate, someone invented the first four-legged chair and would have received a utility patent.  Now chairs are well-known, but designers still create new chairs.  Design patents may protect those new chair designs.  See, “Valuing the Art of Industrial Design,” National Endowment for the Arts (2013).

Limits on Patents

By granting a patent, the government awards the patent holder certain limited rights.

  • A patent is a “personal” property, like owning a car. A car may be driven or not, sold, or rented.  A patent may be commercialized or not, sold, or licensed.
  • A patent carries the “right to exclude” others from making, using, selling, offering for sale, or importing the patented invention. 35 U.S.C. § 271.  This can provide a marketplace advantage.
  • A patent is limited by its term. The right to exclude lasts only for the patent term.  After that, the invention becomes available to the public.

Businesses must take advantage of a patent during its term recognizing that their competition will have access to the invention when the patent expires.

With a basic knowledge of patents, business management can recognize a patentable invention, pursue a utility and/or design patent, and then commercialize the invention with and within the limits of its patent rights.

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J.A. Lindeman & Co. – Advocates for Innovation – Advisors on Invention℠
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