Business Law 101 / What is Intellectual Property

By Albert L. Kelley, Esq.

I am not a patent lawyer.  While many people lump trademark copyright and patent law into the category of intellectual property, on a legal status, they aren’t the same. Any lawyer can file a copyright or a trademark.  But only a patent lawyer may file a patent application.  What is the difference?  A patent lawyer must have an undergraduate degree in science or engineering, and they must take a separate bar exam after they become a lawyer.

A patent is a special protection that gives the patent holder exclusive rights to the patented item for a limited period.  Specifically, for specified periods, usually running between 14 and 20 years after a patent has been issued, the patent holder has the exclusive right to build, license, sell or import the item they patented. This is designed to encourage innovation. Patent rights tell an inventor, if you make something, and tell us how you made it, we will give you a period of time to be the only person who can make money off the item.  This allows inventors to recoup their investments and make a profit, while giving the public an item they can freely use after the patent expires.

A patent is always federal. There is no such thing as a state patent.  On average, the Patent and Trademark Office receives around 500,000 applications a year, but only approves around 300,000.  In 2020 though, the Patent and Trademark Office issued nearly 400,000 patents.

There are actually four types of patents; the most common is the utility patent, which is for an invention or procedure.  That is, a machine, device, or a process such as a computer program, a unique business practice, or a procedure to change the composition or functionality of some matter or substance. About 90% of all patents are utility patents.  In 2018, the patent and Trademark Office issued the 10,000,000th utility patent-not including the nearly 10,000 that were issued before they started numbering them. To qualify for a utility patent, the item must be a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.  In other words, if the item is not a new item, it does not qualify, and if it is merely decorative it does not qualify. Utility patents are difficult to obtain and the details needed to complete a utility patent application are very specific. You likely will need a patent attorney, a technical illustrator and/or an engineer.  The cost can range from a few thousand dollars to tens of thousands of dollars, depending on how complex the application is.

There is also a provisional patent, which is a one-year patent designed to allow inventors protection while they complete their application. This is a low-cost option that allows inventors to establish patent dates for international purposes. The applications are processed quickly as they are not examined and don’t require the drawings or details of a standard patent application.

Next is the design patent.  This seems similar to a copyright, however, it protects the visual aspects of a manufactured item. The design must be a distinct configuration, distinct surface ornamentation or both and only applies to the design of a useful item.  A design patent only covers three dimensional items.  While copyrights protect pictures, paintings, songs, choreography and even architecture, design patents are limited to more sculptural style elements.  The cost of a design patent is usually less than $5,000.  Where a utility patent lasts 20 years, a design patent only lasts 14 or 15 years.

There is also what is called a plant patent which gives 20 year protection to people who discover new types of plant life.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law, and labor law at St. Leo University.  He is the author of five law books available through Absolutely Amazing e-Books and the host of “Basics Of The Law”, a weekly YouTube channel. This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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