This article is the third in a series identifying a number of myths related to IP rights, and explaining, in simple terms, steps you can take to recognize and protect the IP your business creates and acquires. In the first installment, the authors discuss trademark myths. In the second installment, they discuss copyright myths.
The final article in this three-part series identifying myths related to IP rights is Patent Myths.
A patent is the exclusive grant of a property right to the inventor to make, use, and sell an invention. It is an exclusionary right, which means no one else may make, use, or sell that invention without the inventor’s permission. There are several types of patents, each protecting different aspects of a product. As one example, a utility patent is suitable for protection of a machine, manufacture, or composition of matter. As another, a design patent protects the ornamental design of a functional item.
U.S. patent law is federal law (35 U.S.C. § 1-387). There is no state law governing patents, and a state cannot grant or enforce a patent. The United States Patent and Trademark Office issues patents. To qualify for patent protection, the subject matter of the invention must be new, useful, and non-obvious (as defined by statute). Generally, utility patents expire 20 years from the filing date of the application and design patents expire 15 years after the filing date.
Patent law is critical to development and protection of new technology. At the same time, the law has many nuances. Below is a high-level overview of some recurring issues that businesses face in connection with development and protection of new technology.
1. Patent Law Can Protect My Ideas.
This depends on how the idea is implemented. Almost every invention is based on a new and novel idea, but not all ideas are patent protectable. Patent law protects an idea only if it is implemented in a process, machine, manufacture, or composition of matter. An idea divorced from these categories may not be patent protectable. Indeed, one may not obtain patent protection for mathematical formulas or laws of nature. Nevertheless, ideas can be refined such that they are directed to patentable subject matter. For example, one may implement a new mathematical formula in a software application and transform the idea into patentable subject matter. If an idea is implemented in a practical application, e.g., a machine, most likely the idea will be patentable.
2. I Can Patent a Business Method.
Generally, no, unless the business method is tied to a practical application. In patent parlance, a business method is a method of engaging in economic activity or doing business. In 2014, the Supreme Court held in a landmark decision that fundamental economic practices, as well as methods of organizing human activity, are abstract ideas. And an abstract idea may not be patent protectable unless it is implemented in a practical application. Much like any other idea, however, business methods may be implemented in conjunction with new and novel computer systems. The patent office considers such systems as practical applications that transform the abstract idea into a patent eligible subject matter.