Patent law is the area of law that deals with an inventor’s exclusive right to use their own invention. The area of patent law aims to encourage new products and inventions by granting creators the legal right to use and profit from the things that they create. Patent attorneys help clients apply for patents, enforce patents and challenge them. Patent law is part of intellectual property law.
What is United States patent law?
Patent law is U.S. federal law. It comes from the United States Constitution as well as from federal laws passed early in United States history. An inventor gets a U.S. patent by applying for one with the United States Patent and Trademark Office. If an application is successful, the patent holder receives the exclusive right to use and profit from their product for the next 20 years. The patent holders may challenge any person or corporation who tries to infringe on their patent rights. When a patent holder accuses another person or corporation of patent infringement, patent law involves litigating the dispute.
Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a system for awarding patents in the United States. The Constitution says that Congress may promote progress in science and the arts by allowing creators to have exclusive use of their products. Title 35 of the United States Code creates more specific laws for the U.S. patent system. The founders of the United States and early political leaders firmly believed that a property right in inventions is critical to encouraging people to create new products that benefit all of society.
What types of things qualify for a patent?
There are four types of inventions that qualify for patent protection. They are:
- Composition of matter – The combination of two or more chemical compounds. A composition may be the result of chemically combined substances or a mixture.
- Machine – A machine is a concrete thing or device. It produces a function or creates a result.
- Manufacture – An item or tangible object.
- Process – Also called a method, a process is a new way of doing things.
Descriptions of physical phenomena, the laws of nature and abstract ideas are not eligible for a patent. In addition, a patent must be novel. That means it must be unique. An item or idea is not eligible for a patent if it’s obvious or common. A person can’t receive a patent on an item that’s already common simply because no one thought to patent the item yet. There must be something special or creative about the invention.
Requirements for applying for a patent
To receive a patent, an application must file their request with the United States Patent and Trademark Office. The filing requirements are detailed and specific. The process can take as long as three years and cost as much as $30,000. The Manual of Patent Examination Procedure contains the rules for filing a patent application.
A patent application must contain:
- Claim of patent
- Detailed description of the invention
- Drawings that explain the item in detail
- Disclosure of joint research with any other individual or corporation
- List of related patent applications
- Statement of federally funded research associated with the item
- Summary of the invention
- Title of the invention
The patent application must be sufficiently detailed to allow a person with skill in the field to create and use the same product. The application must distinguish what’s new about the item or process compared to what already exists. If the patent office denies a patent application, the applicant can seek reconsideration or they may appeal the denial to the Board of Patent Appeals and Interferences. A rejected applicant may also bring their case to a court.
Patent infringement and enforcement
A patent holder that believes someone has infringed on their rights has multiple avenues to pursue enforcement. They may pursue a court action. There are a wide range of remedies available in the court system including financial remedies, injunctions and the court’s powers of contempt.
In addition to court actions, a patent holder can also file a complaint with the United States International Trade Commission (ITC). The ITC can investigate the claim. They may pursue two remedies which include barring imports into the United States and issuing a cease and desist order for imports. Patent holders may pursue both ITC enforcement and legal remedies.
Patent law remains controversial
Even though the U.S. patent system is well grounded in American history, it remains controversial. Not all inventors apply for patents for their creations. In addition, the patent system may make products more expensive for consumers who may benefit from them. An example may be medicines that are more expensive to the general public until the patent expires on their manufacture. The necessities of patent law, its benefits and the best procedures for the patent law system continue to be a question of debate in the United States.
The patent bar
To be a patent attorney, a person must pass a special bar exam called the Examination for Registration to Practice in Patent Cases. Passing the examination allows a person to file for patents and appear before the United States Patent and Trademark Office. The exam measures an attorney’s ability to properly draft patent applications and handle patent cases.
The exam consists of 100 questions. An examinee has six hours to complete the exam in two, three-hour sessions. Pass rates range between 37 percent and 70 percent depending on the testing year. A person can sit for the exam on any business day at one of several hundred locations throughout the United States.
Who practices patent law?
Patent law is generally a specialty for the attorneys who choose is at an area of practice. Whether they work in private practice, as in-house counsel or they work for for a government agency, most attorneys who practice patent law practice it exclusively. Patent lawyers have in-depth and highly skilled backgrounds in their respective scientific and engineering fields. Advanced scientific and engineering training is a requirement to sit for the patent bar exam. All patent lawyers have significant training in technical scientific matters.
Because the individuals and corporations that apply for patents live throughout the United States, patent lawyers also live throughout the country. Many corporations employ patent attorneys directly as in-house counsel. Working as in-house counsel allows an attorney to devote full-time efforts to understanding the work and business aspirations of the company. Patent attorneys also work in private practice. They represent individuals and companies who have both frequent and intermittent needs in patent law.
Why Become a Patent Lawyer?
Patent law is critical to helping individuals and corporations do business. Patent lawyers have the opportunity to perform detailed, technical work that often impacts the entire trajectory of a business. For lawyers with technical and scientific backgrounds, patent law can provide a welcome outlet for their advanced skills. Patent attorneys in private practice perform a very important function for their employers. Patent attorneys who work for the U.S. patent office or for the International Trade Commission also work with technical and scientific information as they work to ensure that patents are granted and enforced in a fair and impartial manner.
Securing a patent can be extremely lucrative for the person or corporation that secures it. It’s critical to create a patent application that is complete, detailed and carefully prepared before filing. For patent lawyers, the business of patent law can mean lucrative work from enthusiastic clients.
Patent law is an exclusive niche area of law. Only three percent of lawyers in the United States are patent lawyers. Many major corporations need patent lawyers. The exclusivity of the niche area of law often means that patent lawyers have many career options. For qualified attorneys, patent law can provide a financially stable and intellectually rewarding career.
Intellectual property lawyers have an important role to play in U.S. economic activity. They may work for private clients who secure and enforce patents. They may also challenge a patent on behalf of their employer. Patent lawyers are skilled in their areas of knowledge, and they are often in high demand for their expertise. Patent law may be personally and financially rewarding for attorneys who qualify to specialize in the niche area of law.