UNDERSTANDING PATENTS
The Word "Patent" Covers Quite a Bit of Territory. But It's Important to Understand the Types of Patents and How the Law Works Once You've Applied.
By James F. Riordan
Many beginning inventors wind up perplexed by the word "patent." In truth, there are two different and often confused types of patents. Which should you apply for? It all depends upon your product and what you wish to protect. Let's look at the options:
1. Utility Patent--A utility patent covers the FUNCTION of a product, machine, tool, plant, device, chemical composition, toy vehicle, etc.2. Design Patent--A design patent covers a new design, shape or form for any tangible thing where the design is non-functional and is "part of" and "non-removable" from the thing. An example would be the hole in the center of Life-Saver candy.
Generally speaking, a utility patent is more valuable than a design patent, since it's harder for competitors to "write around" function than it is design. The ideal situation is to have your product covered by both utility and design patents. A design patent can be a valuable tool to help you stop foreign competitors from sending "knock-off" products into the United States because customs agents can readily recognize a design infringement from your documentation. On the other hand, it's much harder to determine whether a functional infringement has occurred. If the customs agents decide the "knock-off" appears too similar to your product's design patent, they can confiscate the competitor's product and destroy it, or better yet, turn it over to you at no charge.
Remember to ALWAYS put the words "patent pending" on your prototypes and packaging as soon as the patent application is filed. This gives notice to anyone who sees the product or packaging that the product is patent pending. Once the patent is granted, the marking should be changed to "Protected by U.S. Patent" or "Patented."
I suggest that you refrain from putting the actual patent number on the product because it can make it easier for competitors to go to a patent depository library and pull a copy of the patent to find out what all of your claims are. I further recommend that you answer any letters from outsiders requesting a "copy of your patent or your patent number" with the words, "sorry, our company policy is to refrain from giving that information out." That way, your competitors will have to WORK at finding out how to get around your patents, if indeed that is their intent.
By law, you do need to give notice that your product is protected, but placing the word "Patented" on the product fills that requirement. There is no requirement, however, to put the patent number on the the product. But failure to mark the prototype or product with the term "patent pending" or "patented" can lead someone to believe it may not be protected and invites infringement. I have heard of new product developers who, after checking to be sure they were not infringing on existing patents, have inscribed "patent pending" on their prototypes as soon as they were constructed, whether they planned on filing for a patent or not, just to keep the competition off-guard.
If your product is granted a utility patent on its function, the full term or life of the patent is 20 years. If your product is granted a design patent on its design, the full term of the patent is 14 years. If your product is granted a utility patent, you must remember that "maintenance fees" must be paid three, seven and 11 years after the patent issues. FAILURE TO PAY THE PATENT MAINTENANCE FEES WILL RESULT IN THE PATENT OFFICE DECLARING THE PATENT EXPIRED, AND THEN IT IS AVAILABLE TO ANYONE. Your patent attorney will usually alert you to the due dates, but don't count on it.
To be safe, keep track of the dates yourself. The laws that govern patents state that "if the required maintenance fee and any applicable surcharge are not paid in a patent requiring such payment, the patent will expire at the end of the fourth, eighth or twelfth anniversary of the grant of the patent depending on which maintenance fee was not paid."
Don't let this happen to you. Keep detailed records on each of your patents and pay the required fees in a timely manner. This concludes our series on patents. For more information on patent protection, visit a patent depository library or seek advice from a competent patent attorney or patent agent.
NEXT ISSUE: Trademarks and Copyrights
The above article was taken from James F. Riordan's classic book, HOW TO EVALUATE THE POTENTIAL FOR SUCCESS OF A NEW PRODUCT OR TECHNOLOGY. Riordan's highly-acclaimed, 36-point system is a valuable tool for inventors, product evaluators or anyone interested in the invention process. Each section is followed by a comprehensive questionnaire that can be used to evaluate your product.
The highly-recommended book can be ordered by contacting the James F. Riordan Company, 3110 Camerosa Circle, Cameron Park, CA 95682. The company can be reached by phone at (916) 676-4729. The book may also be ordered through the Dream Merchant, 2309 Torrance Blvd., Suite 104, Torrance, CA 90501. The phone number is (310) 328-1925.
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