Patent Rights

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Image of a U.S. patent
Patent rights is a form of legal protection present within the United States. Patent rights are secured through inventors filing a patent with the United States Patent and Trademark Office which secures them at least 20 years of exclusive rights to that invention [1]. Eligible innovations must either be a process, a product, a machine, or a composition of matter and the innovation must be non-obvious, new, and useful. They are a form of intellectual property that does not allow any other person or party to use that invention without the permission of the inventor. Government agencies typically handle and approve applications for patents. In the United States, the U.S. Patent and Trademark Office (USPTO), which is part of the Department of Commerce, handles applications and grants approvals. [2] [3]. Patents were introduced to the United States in an attempt to encourage inventors to participate in the national economy by sharing their ideas and inventions. Inventors would have a guaranteed time in which they may hold a monopoly on their invention, which would guarantee some form of return [4]. Upon expiration of a patent, the technology enters the public domain and is usable by any individual or firm for profit.


The U.S. Constitution, Article One, section 8 that was adopted in year 1787 authorizes the original patent law, which states that whoever invents or discovers any new and useful process, machine or drug may obtain exclusive use of that product for 14 years [5]. The patent law was originally designed to encourage inventors to commercialize their invention to encourage economic growth and further market innovations by ensuring profit for the duration of the patent. However, there was push back on the duration by inventors for being too short [6] The argument was that the majority of the 14 years for most inventors was spent getting the invention to market, and thus meant the inventor had very little time to profit from the innovation.

In 1836 significant revision of the patent rights law meant that inventors could get a 7 year extension on their patent, which would bring the patent time frame up to the current 20 years [7]. Over multiple revisions, the final patent law has a default of 20 years and with the possibility of extensions.

Application Process

In order to create a legal patent in the United States, the inventor must meet three requirements. The first requirement is that the idea is “novel,” which occurs when it is different from all previous inventions (called "prior art") in one or more of its constituent elements.The second is that it is “useful,” which occurs when it provides some identifiable benefit and is capable of use. The last requirement is that it must be “non-obvious” which means that the invention is not readily apparent.

According to the United States law, “the inventor, or a person to whom the inventor has assigned or is under an obligation to assign the invention, may apply for a patent, with certain exceptions. If the inventor is deceased, the application may be made by legal representatives, that is, the administrator or executor of the estate." [8]Two or more people may also co-file a patent together as joint inventors if they are both responsible for the invention. If one of the people only contributed financially, they are not to file their name on the patent.

Types of Patents

While there are a few different types of patents in the United States, an inventor may find themselves patenting multiple things on the invention. They might file a design patent for a ring, while also filing a utility patent for the technology heart monitor inside the ring. This offers the inverter full protection over the item that they would like to create.

Utility patent

This is what most people think of when they think about what a patent is. It's an extensive technical document that teaches the public how to use a new machine, process, or system. The kinds of inventions protected by utility patents are defined by Congress. New technologies like genetic engineering and internet-delivered software are challenging the boundaries of what kinds of inventions can receive utility patent protection.

The nature of a utility patent is covered in Title 35, Part II, Chapter 10, Subsection 101 of the United States Code, which defines it as any invention for which a patent may be obtained. It reads: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." [9]

Utility patents apply to a large range of inventions, including:

  • Machines (something with moving parts, such as engines or computers)
  • Compositions of matter (pharmaceuticals, vitamins)
  • Processes (business processes, software)
  • Articles of manufacture (mops, candleholders, bottles)

Provisional patent

The United States law allows inventors to file a less formal document which just proves the inventor was in possession of the invention and had adequately figured out how to make the invention work. Once that is on file, the invention is patent pending. If, however, the inventor fails to file a formal utility patent within a year from filing the provisional patent, that person will then lose their filing date. If there are any public disclosures made relying on that provisional patent application, they will now count as public disclosures to the United States Patent and Trademark Office. [10] [11]

Design patent

This patent offers protection for an ornamental design on a useful item. The shape of a television or the way a shoe is created, for example, can be protected by a design patent. Unlike a utility patent, the document itself is almost entirely made of pictures or drawings of the design on the useful item. Design patents are notoriously difficult to search simply because there are very few words used in a design patent. In recent years, software companies have used design patents to protect elements of user interfaces and even the shape of touchscreen devices. A classic example of this is the “Swipe to Unlock” feature from Apple.

Plant patent

A plant patent protects new kinds of plants produced by cuttings or other nonsexual means. These types of patents cover those who have invented or discovered and asexually reproduced a distinct and new variety of plant. This does not cover a tuber propagated plant or a plant found in an uncultivated state.

OverSeas Laws

Another extremely important component is how a patent travels and translates to other countries. Patents are territorial and there is no such thing as an “international patent”. [12] All patents must be filed in their respective countries. This has caused many relational issues with other countries as it is a common practice to steal ideas from other countries and bring similar technologies home.

The Patent Cooperation Treaty (PCT) assists applicants in seeking patent protection internationally for their inventions, helps patent offices with their patent granting decisions, and facilitates public access to a wealth of technical information relating to those inventions. This treaty was founded in the 1970s and has 153 countries signed on to it. By filing one international patent application under the PCT, applicants are allowed to simultaneously seek protection for an invention in a wide range of countries.

Ethical Implications

The patent law is designed to encourage inventors to create, however many believe that the law is outdated and must be recreated for a variety of different reasons.

Innovation Blockages

Next, consumers will benefit tremendously if exclusive use is limited to 5 years. Let’s take an example. According to the FDA, The world’s best-selling drug, Lipitor, a cholesterol reducing drug, was introduced in 1997 and was priced $150 per supply of 30 days. In 2012, their patent expired and the generic is selling for $15 per months’ supply. Just imagine, if the exclusive use was limited to 5 years, the price for this drug would have been lowered by 10 times many years ago. Many people were not able to afford such drugs and just gave up hope. These lowered prices could have saved so many lives. Many argue that lowering the exclusive use to 5 years brings prices down for the product quickly and the consumer benefits tremendously.

Exclusivity Issues

People believe that 20 years of exclusive use is unnecessary, and creates monopolies. At the time when these laws were written 225 years ago, the pace of technology was very slow. It took 40 years to develop a steam engine, 10 years of work by Edison to invent a simple light bulb. Thus, it made sense to reward “exclusive use” rights to such inventors for 20 years; to allow them time to recoup their investment of effort and money. However, The pace of technology is very fast now and changes of a magnitude that once took centuries now happen in years. For example, Apple patented its first iPhone in 2007. Apple’s net profit was 3.5 billion. Apple slowly worked its way up to the iPhone 6 in 2014 where its net profit was 40 billion for the year. They have recouped their investment many times over the years and have clearly monopolized the market. The article cites that they have successfully won over hundreds of patent lawsuits they have filed, simply because they have more money to fight, disabling any company to create a similar product. The U.S. government purposely does not allow monopolies, and granting 20 years of exclusive rights does exactly this.

Much of the opposition will argue that individuals who have put much time, money and effort deserve to have this patent right. In this day and age, there are many engineers and scientists developing solutions to human issues. Say for example, there are two people working on an idea, and one is able to patent the idea first. If this person does not grant rights to others, they now have 20 years of exclusive rights on a simple mechanism. Many believe that this hampers the innovation of technology completely, and disables any others from further improving the product for the good of society.

Legal Battle Ethics

Another piece to the puzzle is money. Oftentimes in court cases, the person that wins is just the person with the most money. This tends to happen when it comes to patent law as well. We see big companies such as Nike that will sue a “small fish” to gain profit. Corporations will often have entire teams dedicated to finding and suing small companies. While this is a much bigger problem in society related to capitalism, it is important to note that it happens very often in patent protection cases.


  1. Fisher, William Weston. Patent Britannica." 27 May 2019. Retrieved 04 April 2021.
  2. Kenton, Will [1] Investopedia."" April 12, 2021.
  3. A Brief History of the Patent Law of the United States Cornell Law School." Retrieved 04 April 2021.
  4. Malek, Widerman. Why Are Patents Important? Widerman Malek." 02 May 2015. Retrieved 04 April 2021.
  5. Ladas. A Brief History of the Patent Law of the United States Ladas & Parry. 07 May 2014. Retrieved 04 April 2021.
  6. Ladas. A Brief History of the Patent Law of the United States Ladas & Parry. 07 May 2014. Retrieved 04 April 2021.
  7. Ladas. A Brief History of the Patent Law of the United States Ladas & Parry. 07 May 2014. Retrieved 04 April 2021.
  8. Alexandra, Virginia General Information Concerning Patents USPTO. October 2015. Retrieved 20 April 2021.
  9. Alexandra, Virginia General Information Concerning Patents USPTO. October 2015. Retrieved 20 April 2021.
  10. Kenton, Will [2] Investopedia."" April 12, 2021.
  11. Runge, Joe [,the%20invention%20is%20patent%20pending/ What Are The Different Types of Patents] LegalZoom. September 04, 2020. Retrieved April 20, 2021.
  12. Runge, Joe [,the%20invention%20is%20patent%20pending] LegalZoom. September 04, 2020. Retrieved April 20, 2021.