Debunking Intellectual Property Myths
When you are a patent attorney, certain questions seem to come up in your practice again and again. Many of these relate to popular misconceptions about the world of patents and what they actually do and don’t do.
Below are some of the most common patent myths. This is in no way a comprehensive list, as many other misunderstandings are out there. That’s just one of the reasons why it is sensible for inventors to work with an experienced patent attorney when they are ready to protect their invention. An intellectual property lawyer is there to help you sort through the myths so that you can obtain the broadest and most meaningful patent protection that is available.
Myth No. 1: The patent office will monitor to see if anyone is infringing my patent.
Unfortunately, this just isn’t the case. The function of a department of the government like the U.S. Patent and Trademark Office is to decide whether or not a patent should be granted for a particular technology. Once a patent is issued, it is the responsibility of the owner to enforce their rights. This may mean having to bring an infringement action against an allegedly infringing party.
Myth No. 2: Obtaining a U.S. patent gives me patent rights around the world.
If an inventor obtains a U.S. patent, then that patent is only enforceable in the U.S. If the inventor wants to have enforceable patent rights in another jurisdiction, then they must apply for a patent in each of those countries. Inventors who discover that an overseas competitor is making a knock-off version of their product can take legal action to prevent those products from being imported into the U.S., but they may not be able to stop their manufacture in the foreign country unless they have a patent there.
Myth No. 3: A positive patentability search means that I’ll definitely get a patent.
Patent attorneys frequently encourage their clients to have a patentability search performed before they proceed with filing an application. Such a search can be an informative way to find out whether or not patent protection may be available for the invention and the probable scope of that protection.
However, patentability searches are never perfect. It’s impossible to uncover every existing prior art reference that might affect the patentability of a certain invention. That’s especially true in the case of newly filed patent applications that have not been published at the time of the search. These references won’t appear in the search because they are not publicly available. Nonetheless, by the time your invention is being reviewed by an examiner at the USPTO, he may cite that application as prior art if it has been published in the interim.
Accordingly, a patentability search can help you decide whether or not it is business reasonable to proceed with filing a patent application, but it cannot ultimately determine whether or not you will get a patent or the scope of protection that you will receive.
Myth No. 4: I have no competitors, so I don’t need a patent.
When you have invented technology that you believe is totally novel, then it’s natural to assume that no one else is doing exactly the same thing that you are. However, what happens when your product or service hits the marketplace and becomes a huge success? How long will it be before competitors start coming out of the woodwork?
If you obtain patent protection for an item that is genuinely novel and inventive, then you have the right to prevent others from copying and profiting from your ingenuity. Without a patent, you’ll be facing an impossible battle.
Myth No. 5: The patent’s drawings show what’s really protected by the patent.
Many people have this misconception, but unless you are aiming for a design patent, which is used to protect the overall look of a product, then it is the written claims rather than the drawings that really express what’s protected by the patent.
Drawings provide visual representations of examples of the invention. However, it is the claims that particularly point out or specify the subject matter that is covered by the patent. Writing and interpreting patent claims are two incredibly difficult tasks that are best left to a patent attorney.
Myth No. 6: Ideas are patentable.
A great idea is just that: An idea. It is not possible to obtain patent protection for an idea or a concept. Instead, patent law requires inventors to reduce their inventions to practice or constructive reduction to practice.
Essentially, to be patentable, the technology must be built or readily could be built by someone familiar with the technology.
Myth No. 7: I don’t copy anyone else’s products, so I can’t infringe their patents.
The claims of a patent can be incredibly subtle and nuanced. Interpreting their exact meaning is rarely straightforward. Even if you believe that your product doesn’t infringe on anyone’s patent rights, that might not necessarily be the case.
In fact, you don’t have to be aware of a patent or a patented product in order to infringe those patent rights. A cease-and-desist letter from the patent owner’s attorney may be the first inkling you have that there is an issue.
Explore Patent Rights with Williams IP Law
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