Patenting inventions can be a valuable way for business owners to control the use of their inventions and make money, but did you know you could lose your patent rights? Complications in the application and use process can create problems that business owners who are not familiar with intellectual property laws struggle to resolve.
Below we discuss what patent rights are and how you can lose them so that you can avoid these scenarios.
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What are the patent rights?
A patent is a right that gives you exclusive privilege over a product, process, or method that provides a new way to do something or solves a technical problem. The first step to obtaining patent rights is by submitting an application to the regional or national intellectual Property (IP) office.
In order to obtain a patent, the public must have access to technical information regarding the invention in a patent application.
Patent owners have the right to determine who can or cannot use the patented invention during the protection period. It simply means no one else can distribute, import, commercialize or sell the invention without the owner’s consent.
According to USPTO, the following must be met to qualify for patent protection:
Novelty: The invention must have a new characteristic that is not already known from the pre-existing knowledge known as “prior art”.
Non-obvious: the invention must entail an inventive step known by someone with ordinary technical skills in the relevant field.
Industrial Application: The invention must be practical. It should be useful in an industrial or commercial setting beyond its theoretical purpose.
Patentable subject matter: In many countries, scientific theories, mathematical techniques, plant or animal species, and discoveries of natural substances, are not issued as patents.
Disclosure: One has to disclose the invention in a patent application in a way that is sufficiently clear and complete for a person of ordinary skill in the relevant technical area to reproduce it.
How Might You Lose Patent Rights?
The creation of patent law was to ensure that the public benefits from inventors’ works. The law, therefore, encourages inventors to patent their work. It is important that inventors patent their inventions as soon as possible.
Even though inventors have strong rights to creating innovations, they may lose them if they don’t pay attention to Patents Law. Once lost, you cannot reclaim the rights. The following are ways that inventors may lose patent rights:
The patent right of an inventor who describes his invention in a printed publication a year prior to applying for it is not eligible for patent issue.
To protect their rights, inventors should apply for patents within one year after the publication of specific information about an invention. It doesn’t matter if the publication is in the US or somewhere else.
The public sale or use
Patent rights are lost if an invention was into use or on sale within one year of the inventor applying for a patent.
The “on-sale” bar prevents an inventor from waiting too long to obtain patent rights. However, it allows them to test the market and refine their inventions.
Even if one person is aware of the public sale or public use, even though the inventor doesn’t know, the inventor could still lose his patent rights. The invention must be functional and not experimental during the relevant year.
There are many ways that abandonment can happen, but the essence is that the inventor seems to have abandoned the intent to patent and exploit his invention.
Although an inventor might simply declare his intention to abandon the invention, it is more common for the inventor to implicitly abandon the invention by unreasonably delaying or suppressing the patent application, hiding the invention, or concealing it.
This situation does not have a time limit for inventors to file patent applications. The court will conduct a factual analysis to determine whether an unreasonable delay occurred. If the inventor abandoned the invention, the invention belongs to the public.
Two ways courts can strip you of your rights:
- Non-infringement: If a court finds that a patent holder’s claims are not infringed by an accused product or process, the patent holder may lose certain rights to enforce the patent against similar product or process.
- Invalidation: If a court finds that the claims of a patent are invalid, the patent holder will lose their rights to the patent. This can happen if the claims are found to be obvious or if the invention was not novel or non-obvious at the time of filing.
Discovery of new Prior Art
The discovery of prior art is one way you can lose your patent rights. Prior art is evidence that your invention is not original. You can use any type of evidence, from plans to actual products.
You could be facing legal hurdles to enforce your patent, depending on who and when the prior art was discovered.
Failing to maintain your patent can also result in loss. A patent holder has to pay maintenance fees to maintain a patent. You also need to update information such as entity statuses as necessary to keep your rights.
What is the purpose of patent rights?
Anyone who invents a product, whether a device or unique technology, should seriously consider applying for a patent at USPTO. Patents have many benefits. Patent rights protect the invention from being copied by anyone else in the United States. The patent rights guarantee that the inventor is the sole owner of the invention and prohibits others from commercializing it. Below are some of the main benefits of patent rights as per WIPO.
Benefit #1: Patents increase profits
If you are able to use patent rights correctly, it can bring you millions or even billions of dollars. Your company can set the market price for any technology or device. People perceive companies that are first to market as experts and innovators in their field. This creates brand credibility and loyalty, which will attract buyers who will pay a premium.
Licensing is another way that a patent can generate revenue. A registered patent grants the owner exclusive rights to use, produce and sell the invention in exchange for royalties and a fee. This is useful if the inventor doesn’t have the resources or doesn’t want to sell the invention. Many American companies exist solely through licensing their technology and product lines. This is very lucrative.
Benefit #2. Patents increase company value
Intellectual property can include patents, trademarks, and copyright. Patents are the most important part in many cases, particularly in high-tech industries or consumer products.
It is clear that strong IP portfolios are key to obtaining venture capital. They can provide leverage in business transactions, increase company value in mergers and acquisitions (M&A), as well as provide large amounts to your exit strategy.
Intellectual property lawyers should advise clients regularly on the best way to monetize their patent portfolio. It is essential to do a comprehensive analysis of the situation and develop a multifaceted strategy for patent monetization. Market demand, commercialization potential, and strength of patent applications are some of the factors to consider.
Benefit #3: The Patents Obliterate the Competition
Patents are a barrier to entry that prevents others from selling similar products in direct competition with yours. This enables small businesses to compete with large corporations. Even the smallest start-ups may have more market share than large corporations.
A large corporation will typically have a huge advantage over a start-up with an invention, but a patent can help keep large corporations from using your idea.
Benefit #4: Attract Investors
It is easier to secure capital investment funding from angel investors or venture capitalists if you have a patent or a patent pending. You can also pitch your invention without worrying about your idea being stolen. Investors will feel more confident if you have a patent. This gives them confidence in your product and the possibility of monetizing it.
A patent is a must for investors when pitching. Investors will see that your idea is original and that you have invested significant time and money. It can increase your company’s value and give you leverage when negotiating with venture capital investors.
How do you enforce your patent right?
Well done! Your patent has been approved, you paid the issue fee, and you received the seal and red ribbon. It has been years in the making, but now you can relax your mind and your legal funds. Right? Perhaps not. You, your company, your legal counsel, and potential infringers may need to take very different steps to decide how to use a single patent or an entire collection of intellectual assets.
With the Rights also come certain obligations required to be followed by the Patentee.
To keep your patent rights intact, owners must take action against parties who infringe on these rights. However, enforcement can be difficult.
Businesses must monitor their patents. Unfortunately, no agency can police potential patent infringement cases. It is up to the patent owners to research and monitor. Owners can overlook cases of patent infringement because of this.
You have the right to sue someone if you discover that your patent has been copied or used without your consent.
Instead of waiting for someone else to infringe on your patent, we recommend that you create a strategy to address infringement in advance.
You should follow these steps to ensure you are in the best possible position to defend against infringement:
- Create awareness of the market
- communicate your legal rights
- If necessary, take legal action to defend your rights.
There are several options available if you suspect that your patent has been infringed. These include a letter from your legal representative to the infringer and negotiations to resolve the matter out of court. If this fails, you can also take court action. The outcome you seek will determine the course of action that you take.
You could lose patent rights to an injunction against an infringement if you delay taking action. Government agencies don’t police your patent or provide advice on your patent’s possible or actual infringement.