WHAT IS A PATENT?
A patent is a property right granted by the federal government to an inventor of a method‚ machine‚ process‚ or other invention. That property right allows the inventor to exclude others from using‚ making‚ selling‚ or importing the patented material. Essentially‚ a patent is a legal right to prevent others from benefiting from your creation without your permission. Other than the right to exclude others from use‚ a patent does not necessarily come with any affirmative rights to make‚ use‚ or sell the patented material.
When an inventor discovers a new machine‚ method‚ or process and reduces that discovery to practice‚ he or she may apply for a patent with the United States Patent and Trademark Office. If the applicant has met all of the requirements for patentability‚ the USPTO may issue a patent. Once a patent is issued‚ the patent holder has a protected property right in the subject matter of the patent. The patent holders then have the ability to enforce their patent against others who seek to use their invention or discovery. The legal rights associated with a patent last for the statutory period of twenty years in most cases.
While patent holders may exclude others from using‚ making‚ or selling their invention‚ they do not necessarily have an absolute right to make‚ use‚ or sell their own patented invention in every case. To understand why a patent holder would be unable to make or create the patented material‚ it is necessary to examine two types of patents: Pioneer Patents and Improvement Patents.
With a pioneer patent‚ the inventor has created something entirely new. The machine‚ method‚ or process of a pioneer patent does not rely on any previously patented material to function. Therefore‚ the inventor of a pioneer patent may likely make‚ use‚ or sell his invention and realize a commercial gain.
In contrast‚ an improvement patent is an improvement on an existing invention. In many cases‚ the existing invention may be patented itself‚ requiring the inventor of the improvement to obtain a license to use‚ make‚ or sell their patented material containing components of the original invention.
Patent and Trade Secret
Often times‚ an inventor or business will have to determine whether to protect their intellectual property through the patent process or as a trade secret. Each method offers its own advantages and disadvantages. While patent protection is limited to the statutory period of twenty years‚ trade secret protection can be unlimited in duration. Though trade secrets are not limited in duration by statute‚ a trade secret ceases to exist at the moment it is disclosed or is generally known to the public. Trade secret protection can also be lost by failing to use reasonable efforts to maintain the secrecy of the invention.
Patent protection‚ in contrast‚ offers several advantages over trade secret. First‚ if an invention is capable of being reverse engineered‚ trade secret protection would not prevent others from reproducing the invention and making‚ using‚ or selling it themselves. If the invention were patented‚ on the other hand‚ even if a competitor managed to reverse engineer and recreate the invention‚ they would be prohibited from making‚ using‚ or selling it for the statutory period. The patent process offers little secrecy as applicants must disclose instructions sufficient to reproduce their invention in order to receive a patent.
Second‚ patent holders need not be as vigilant as the owners of trade secrets. Protecting a trade secret requires the constant use of reasonable efforts to maintain secrecy. Once a patent is issued however‚ a patent holder needs only to monitor the market and bring infringement actions against wrongdoers when necessary. Most products for sale or any items that will be used by the public are best protected by patent law. Secret recipes‚ formulas‚ or manufacturing processes that can be hidden from public view may be better served by keeping them as trade secrets.