Patent
Also called patents, patent right, what is a patent, patent definition
Patent means an exclusive right granted for an invention. WIPO says the owner may stop others from commercially exploiting the invention for a limited period, within the country or region where the patent was granted1. WIPO adds that patents also benefit society by giving public access to technical information about the inventions1.
A patent is a right to stop others, not a right to make or use the invention yourself2. In the United States there are three types: utility, design and plant2. See Utility patent and Design patent.
What rights a patent gives
Patent laws describe the right as a list of acts that the owner can prevent. The three texts below use similar wording for products and for processes3,5,6.
| Text | Acts the owner can prevent |
|---|---|
| United States, 35 U.S.C. 154(a)(1) | The grant is a right to exclude others from making, using, offering for sale or selling the invention throughout the United States, or importing it into the United States. If the invention is a process, the right extends to products made by that process3. |
| Europe, Article 64 EPC | From the date the mention of grant is published in the European Patent Bulletin, a European patent confers, in each Contracting State for which it is granted, the same rights as a national patent granted in that State. If the subject-matter is a process, protection extends to the products directly obtained by it. Infringement is dealt with by national law6. For Contracting Member States in which the UPC Agreement is in force, the Unified Patent Court has competence over actions for actual or threatened infringement (Article 32(1)(a) UPCA)14. |
| WTO TRIPS Agreement, Article 28.1 | For a product patent, making, using, offering for sale, selling or importing for these purposes that product. For a process patent, using the process and using, offering for sale, selling or importing for these purposes at least the product obtained directly by that process. In both cases, by third parties without the owner's consent5. |
In the United States, 35 U.S.C. 271(a) states the matching rule as infringement: whoever without authority makes, uses, offers to sell or sells any patented invention within the United States, or imports it into the United States during the term of the patent, infringes the patent4. See Patent infringement.
The claims set how far the right reaches. Under Article 69(1) EPC the extent of protection is determined by the claims, and the description and drawings are used to interpret them9. In the United States the specification concludes with one or more claims that particularly point out and distinctly claim the subject matter the inventor regards as the invention (35 U.S.C. 112(b))10. See Patent claim.
A right to exclude, not a right to use
The USPTO puts it directly: what is granted is not the right to make, use, offer for sale, sell or import the invention, but the right to stop others from doing so2. WIPO says that if third parties carry out those acts without the owner's consent, the owner can go to court to seek remedies for infringement1.
Whether a product would infringe someone else's patent is a separate question from whether you own a patent of your own. See Freedom to operate.
Territorial and time-limited
A patent is limited in place and in time. WIPO says the owner's exclusive right applies for a limited period within the country or region in which the patent was granted1. The USPTO says U.S. patents are effective only within the U.S. and its territories and possessions2, and WIPO's PCT FAQ says patents are territorially limited12. See Patent territoriality.
| Right | Term |
|---|---|
| US utility patent | Begins on the date the patent issues and ends 20 years from the date the application was filed in the United States or, if it refers to an earlier application under 35 U.S.C. 120, 121, 365(c) or 386(c), from the earliest such filing date. The grant is subject to payment of fees (35 U.S.C. 154(a)(2))3. |
| US design patent | 15 years from the date of grant for applications filed on or after 13 May 2015 (35 U.S.C. 173). Design patents issued on earlier applications have a 14-year term2,13. |
| US plant patent | Up to 20 years from the date the first non-provisional application was filed2. |
| European patent | 20 years from the date of filing of the application (Article 63(1) EPC). A Contracting State may extend the term, or grant corresponding protection that follows immediately on expiry, in the situations listed in Article 63(2)7. |
| TRIPS minimum | The term of protection available shall not end before the expiration of 20 years counted from the filing date (Article 33)5. |
The USPTO adds that US utility patents must have maintenance fees paid on a schedule to stay in force, and that in certain unusual conditions patent terms may be extended or adjusted2. See Patent expiration and Patent term adjustment.
Types of patent
The USPTO lists three types of US patent2. Other systems use different names and groupings, so check the law of the country where protection is wanted.
| Type | What it may cover |
|---|---|
| Utility | Any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement of these, subject to the conditions and requirements of the Patent Act (35 U.S.C. 101)11. |
| Design | A new, original and ornamental design for an article of manufacture2. See Design patent. |
| Plant | A distinct and new variety of plant that is invented or discovered and asexually reproduced, other than a tuber-propagated plant or a plant found in an uncultivated state2. |
For the other systems named in this page: TRIPS Article 27.1 says that, subject to the exclusions members may make under Articles 27.2 and 27.3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided they are new, involve an inventive step and are capable of industrial application5. Article 52(1) EPC uses almost the same conditions for European patents, but Article 52(2) and (3) lists subject-matter that is not regarded as an invention as such, for example discoveries, mathematical methods, schemes for doing business and programs for computers8. See Novelty (patent law) and Inventive step.
Questions people ask
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Run FTO SearchDoes a patent give me the right to make or sell my invention?
Not by itself. The USPTO says what is granted is not the right to make, use, offer for sale, sell or import the invention, but the right to stop others from doing so2. Section 154(a)(1) of the US Patent Act and Article 28.1 TRIPS also describe the right in terms of what others are prevented from doing3,5.
Is there a worldwide patent?
No. WIPO says patents are territorially limited12, and a U.S. patent is effective only within the U.S. and its territories and possessions2. Filing one international application under the PCT does not change this, because the granting of patents remains under the control of the national or regional patent offices12.
How long does a patent last?
It depends on the type of patent and the country. A US utility patent ends 20 years from the US filing date or, for a continuing application, the earliest related filing date3. Foreign and provisional priority dates are not counted (35 U.S.C. 154(a)(3))3. A European patent has a term of 20 years from filing7. A US design patent filed on or after 13 May 2015 lasts 15 years from grant2,13. Extensions and adjustments exist in some cases, and US utility patents need maintenance fees2.
What types of patent are there?
In the United States there are three: utility, design and plant patents2. European patents are granted for inventions in all fields of technology that are new, involve an inventive step and are susceptible of industrial application8. Some subject-matter is excluded, for example programs for computers and methods for doing business as such (Article 52(2) and (3) EPC)8.
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