As we continue the first few weeks of posts on the Patent Billy Goat, I’ll be mixing posts about newer topics, like my recent post on the Eastern District of Texas’ new Track B docket, with posts on some patent fundamentals. Today we start with the most basic question of all: What is a patent?
Patents come in three general varieties: (1) utility; (2) design; or (3) plant patents. Plant patents cover invented or discovered asexually reproduced varieties of plants (and are thus highly specialized and rarely the subject of litigation in the general public). Given their specialized nature, plant patents are really an issue for another blog. This leaves utility and design patents.
Design patents are issued for new, original, and ornamental designs embodied in or applied to an article of manufacture. Design patents are focused entirely on the non-functional, ornamental appearance of manufactured articles. If the feature provides no functional benefit to the operation or use of the manufactured article, then it may be the subject of a design patent. A classic example of a design patent would be the shape of a Mercedes or Jeep automobile grill.
Owners of design patents can exclude others from making, using, or selling the design covered by the patent for a period of 14 years from the grant of the design patent. Design patent owners also do not have to make any maintenance fee payments to preserve their patent rights. But design patents, while more common than plant patents, are still a minority in the patent world and are not at the heart of expensive patent litigation.
Utility patents are your classic patent — they cover new and useful processes, machines, manufactures, or compositions of matter or new and useful improvements thereof. Approximately 90 percent of the patent documents issued by the United States Patent and Trademark Office are utility patents. Utility patents have a term of 20 years (so long as all maintenance fees are paid) from the date of filing of the patent application and generally permit the owner of the patent to exclude others from making, using, selling, offering for sale, or importing the invention claimed in the patent.
Utility patents do not, however, give the holder of the patent the right to practice the invention covered in the patent. It is possible to own a patent and be prevented from practicing the patent by another issued patent. This is not all that uncommon, especially when dealing with crowded areas of technology.
An easy way to understand this is to envision a patent issuing to cover a pencil. If a later inventor patents a pencil having an eraser attached to one end of the pencil, that second inventor may not make, use, sell, offer for sale, or import the pencil/eraser combination without first getting permission or a license from the first pencil inventor — because in order to practice the second invention, the second inventor would have to use the pencil patented by the first inventor.