What is a patent?
A patent is a government-granted monopoly on “making, using, offering for sale, or selling” the patented item for twenty years, even for personal use and even if the other party independently created it. In exchange for granting a monopoly to a patent holder, the government requires that an inventor make a disclosure of enough information that someone else could replicate the invention, and makes that information publicly available.
What do patents protect?
Patents are perhaps the most often-requested type of protection, though they have such a limited scope that they are often not the best type of protection. Patents protect only a very limited scope of intellectual property:
Inventions and discoveries that are: 1) novel; 2) non-obvious; and 3) useful.
The only way to obtain patent protection is to apply for federal registration. The U.S. Patent and Trademark Office (PTO) will examine your patent application. If the PTO does not believe that the invention meets all three of the requirements, it will not register. These three terms are legal terms with very specific meanings.
An invention is novel if it has not been created before. It may also be an improvement upon an existing invention—in fact, most patents are for improvements on existing inventions rather than for entirely new inventions.
An invention is non-obvious if someone who is reasonably skilled in the area in question would not find it obvious. That said, it can be a mistake to allow an inventor to unilaterally decide that an invention is obvious. Inventors are often very intelligent people who underestimate their own creativity and problem solving skills. If you, as a business person, believe an inventor in your company may have created a patentable invention that aligns with the patent portfolio your company is building, it is almost always worthwhile to obtain the opinion of a patent attorney.
Finally, the lowest hurdle is generally usefulness. An invention is useful if it has a practical application, as opposed to an aesthetic one.
What types of intellectual property are not protected by patent law?
Any invention that does not meet the criteria for patent protection is not protected by patent law. If the intellectual property is not new, or is obvious, or is not useful, it cannot be protected with a patent. This is why there is some overlap between patent and copyright: software can be both an original work of authorship (code) and a new, non-obvious, and useful invention. By contrast, a painting may be new and non-obvious, but is not useful on the practical level that patent requires.
Patent also does not protect anything that has not been submitted to the PTO for patent review. Some inventions may have a longer shelf life than the 20 years of protection granted to patents. In those cases, a company should also consider trade secret protection, the subject of the next post.