My Interest in Patent Protection as a Legal Professional

Originally posted 2018-11-19 11:17:55

Vacuum Cleaner Patent Drawing

By Tikwiza Nkowane|

When you come across something you are interested in what do you do?  For me, I research the topic to find out more as it leads to expanding my knowledge, understanding, and interest.  This is exactly what happened when I researched the law regarding patents, what defines a patent and why it is important to get protection for your inventions.

My first sense of curiosity into patent law was the design of the Dyson vacuum cleaner, invented by the British inventor and industrial designer, Sir James Dyson. I remember seeing the vacuum cleaner for the first time and being amazed at a vacuum that does not need a bag.   My curiosity grew from there.

Dyson obtained his first US patent on the idea in 1986.  It was only after 10 years that the product took off in the UK market after having difficulties when first designed.  In 1999, Hoover, a US company was sued by Dyson for patent infringement.  The UK High Court ruled in favor of Dyson stating that Hoover deliberately copied a fundamental part of Dyson’s designs in making its bag-less vacuum cleaner range.  Hoover agreed to pay damages for the infringement.  Since Dyson was protected by patent law, he succeeded in his action.  Now Dyson continues to make new and innovative products, based on their foundation, and their products and inventions are regularly patented to have the protection they need.

What is a Patent?

The first step to understanding patent law is to know what a patent is.

A patent is a government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using or selling an invention.  The eligibility to obtain a patent is governed by patent law.

Obtaining a patent for a new invention is challenging, and this is what I find interesting.  The creativity in applying for the patent and providing a written document which includes a specification of the invention comes with skill and the ability to distinguish one product or invention from another.

Patent Law

Under Article I section 8 of the Constitution of the United States,  it is the United States Congress that has the power to enact laws relating to patents.  The laws specify the subject matter for which a patent may be obtained and the conditions for patentability.

The history of patent law dates back to 1790 when the first patent law was enacted.  It underwent several revisions before it was fully enacted on July 19, 1952, and finally came into effect on January 1, 1953.

Patent law is codified in Title 35, United States Code, and establishes the United States Patent and Trademark Office (“USPTO”) to administer the law relating to the granting of patents.  The law specifies that a patent can be obtained if the subject matter is “useful.”  This refers to the condition that the subject matter must have a useful purpose.  The courts have defined the limits of what constitutes subject matter.  They have said that law of nature, physical phenomena, and abstract ideas are not patentable subject matter.

Obtaining a Patent

Obtaining a patent is not an easy process.  It requires that the invention is new as defined by patent law.   There are three types of patents, (1) Utility patents; (2) Design patents; and (3) Plant patents.

The USPTO will usually grant a property right to the inventor of an invention generally for a term of 20 years, if the patent is new, from the date on which the application is filed in the United States.

To obtain a patent for an invention, it must be new as defined in the patent law.  The limits for obtaining a patent are:

“(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” or

“(2) the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.”

Application for a Patent

The complexity of searching the database for previous patents, with similar designs can be overwhelming.  It is therefore advisable that an attorney or patent agent is used to assist with filing for a patent.  This can alleviate the complications that may arise when filing for a patent or responding to notices about the patent.

Although an application for a patent comes in what may seem like four simple steps: (1) A written document which comprises a specification; (2) Drawings; (3) An oath or declaration; and (4) Filing, search, and examination fee, the essential work happens before filing the application.

A thorough and extensive search is needed to determine if your invention is new.  It is important to check every possible invention, similar invention, and also international patent office databases.

The USPTO website provides an excellent guide on how to conduct a Preliminary U.S. Patent Search.  This process can be done to give you a head start with applying for your patent.  The In-Depth Review of the patents that you find to be most relevant to your invention will help you decide if things need to be changed or added to make your invention new.

Final thoughts

The more I think of how the world we live in is turning digital, the more technical designs become.  In addition, inventors look to research and develop new technology, including simple things we do not think of such as the alarm clock apps and features on our smartphones, tablets or laptop computers.

My research has shown that inventors file their patents as late as possible during their manufacturing or invention process.  This is because as the patent is usually for 20 years, filing the application at a stage when the product can be released to the public within a short space of time after grant, will give more protection to the invention, and thus more valuable to the inventor of the product.  Competition will then become fierce very early after launching a new invention.  Patenting an invention in the early stages of invention or production will make it public, and other inventors will be able to build on the invention and make it “new” in its own way.  The invention will not seem as new as it was when first thought of as it has been in the public eye for a long time.

When researching products, I purchased which were labeled “patent pending” it is clear that they may lack novelty, even in its most subtle form, whether by design or mechanical function.  This is particularly fascinating for me, because even though the product may not yet be patentable, changes to it through creativity can make it succeed as a patent.

My interest in patent protection grows and is something that is getting even more complex every single day.