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What You Don't Know about Patents Could Hurt Your Business

Most business people rarely confront a legal matter that involves a patent. However, anyone who runs a business should know the basics about patents, because they can provide a dramatic advantage (or cause a disaster) for your company.

Q: Why should I care about patents?
A: Any business that manufactures a product or provides a service should consider intellectual property protection. If you are not protected, your competitors are free to copy your products or business activities. In addition, if your competitors obtain patents, you may lose your ability to compete with them or be forced to pay for infringing on their patent rights. Ultimately, your failure to care about patents could put you out of business.

Q: What is a patent?
A: A patent is a grant of special rights from the government. A patent owner is given the right to prevent others from making, using, selling, or offering to sell his or her invention. In the United States, patent rights may last for 20 years from the date the patent application is made.

Q: What can be protected by a patent?
A: There are three types of patents: utility, design, and plant patents. Utility patents are the type with which most people are familiar. These patents protect a wide variety of things, such as devices, machines, processes, methods, chemical compounds, and even genetically engineered bacteria. Design patents protect ornamental designs for manufactured articles. Plant patents protect new types of asexually reproduced plants.

Q: How does the government decide if an invention is entitled to be patented?
A: A patent application describing the invention is submitted to the U.S. Patent and Trademark Office. The application includes "claims," which precisely describe the invention the applicant believes he or she is entitled to own. The U.S. Patent and Trademark Office examines the application, and decides if a patent should be granted. Although the legal tests used to determine whether or not an invention can be patented are complicated, according to a "rule of thumb" a patent will be granted if the invention is substantially different and better than the state of the art.

Q: Is it possible to lose the opportunity to obtain a patent?
A: Yes. Unfortunately, it happens often. Most commonly, someone waits too long before filing a patent application.In the United States, it is too late to apply for a patent if an invention has been on the market for a year. Although this may seem harsh, the rules in foreign countries are even worse. In most countries, a patent cannot be obtained if an item was disclosed to the public before a patent application was filed. This is why business people who plan to sell overseas should consider filing for a patent early in the development of any new product. As of March 16, 2013, the United States will change from a "first to invent" system to a "first to file" system. This means that a patent application should be filed as early as possible. In most cases an inventor should file an application before publicly disclosing, selling or offering for sale his or her invention.


Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Ralph E. Jocke, a patent and trademark attorney with a worldwide practice, and a principal with Walker & Jocke, L.P.A., located in Medina, Ohio.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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