What is a patent?


A patent is a limited set of rights granted to the owner of an invention in exchange for disclosing the invention for the public’s benefit.  In short, a patent gives the owner the right to exclude others from making, using and selling the patented invention.

A U.S. patent doesn’t grant the owner the right to use the invention, rather, the owner is granted the right, for a limited period of time, to prevent others from making, using, offering for sale, or selling the patented invention in the United States or importing the patented invention into the United States.   In other words, the government grants the patent owner the right to limit other people’s use of the invention.  This is an important concept as it defines the value of the rights and puts the burden of enforcement on the patent owner.  It is also important because “the patented invention” defines the exclusionary space, which can be broader than the commercial embodiment of the invention the owner chooses to initially pursue.

I have seen far too many patents written solely from the perspective of describing the then current commercial embodiment of the invention.  While that is one of the key elements to a well written patent, it is important to not stop there.  A well-written patent goes a step further to preemptively address the design alternatives and next generations of development.  In other words, a well-written patent defines the patented invention not only as the product itself, but further includes the space in which the owner will develop a commercial advantage.  As a result, the patent drafting process should include looking for ways to design around the current state of the art, in the same way your competitors will look to design around your patent, and proactively capturing those designs in your patented invention.

At its heart and soul, a patent is a legal right to protect your invention, to secure a competitive advantage over your competitors or to generate revenue through licensing or by selling the patent.  Patents can be very valuable business assets, but their value depends a great deal on the skill with which they are crafted.  In my experience, the best patents synthesize the expertise of the inventors and the patent attorney while carefully tuning the scope of the patent to protect the true value of the invention; the commercial space in which your growing business will develop.