Patent Enforcement FAQ

As an inventor or entrepreneur trying to protect your innovative new product, you may wonder, "Once I have patent protection, how do I enforce my patent rights?"

Once you have a patent, you have powerful legal tools to combat infringement upon your patent rights. This article answers some of the most frequently asked questions about patent enforcement.

• What rights do I have as a patent owner?
• Should I use nondisclosure agreements (NDAs) in patent enforcement cases?
• How long do patents last?
• Can I enforce a patent internationally?
• How can I enforce my patent rights?
• What are my rights during the patent application process?
• How is patent infringement determined?
• What happens during a patent infringement case?

What rights do I have as a patent owner?

A patent is a government-awarded temporary monopoly for an invention. The U.S. patent system grants inventors exclusive rights to their inventions for a limited time. The protection usually lasts 14 to 20 years, depending on the issue date and type of patent. Others cannot use, sell, or make your patented invention during this time.

If anyone violates the patent, you can bring an enforcement action. A court can issue an injunction preventing the other party from continuing their actions. A federal patent allows the holder to receive damages and attorney's fees in a case.

Should I use nondisclosure agreements (NDAs) in patent enforcement cases?

Yes, you should use nondisclosure agreements in patent enforcement cases. NDAs are valuable tools to protect your intellectual property before pursuing patent enforcement. NDAs can help prevent unauthorized disclosures of your inventions during negotiations or meetings about your invention or product.

How long do patents last?

The length of patent protection depends on the type of patent.

• Utility patents last 20 years from the filing date of the application.
• Design patents last 14 years from the date of issuance if it was before May 13, 2015, and 15 years if after.
• Plant patents last 20 years from the date of issuance.

Patents can also expire if patent holders don't make their scheduled maintenance fees to the United States Patent and Trademark Office (USPTO).

Can I enforce a patent internationally?

Yes, you can enforce your patent rights internationally. The enforcement process is different in each country. International treaties such as the Patent Cooperation Treaty (PCT) and the European Patent Convention help the international patent protection process.

How can I enforce my patent rights?

As a small inventor, the biggest concern is how you can enforce your rights. Enforcing patent rights involves taking legal action against infringers. This can include negotiating licensing agreements, sending cease-and-desist letters, or filing lawsuits.

What are my rights during the patent application process?

Inventors have different levels of protection at different stages of the patent application process. We outline those rights and protections below.

Before the Patent Application

The only circumstance where you would have a legal ground to stop others from creating, using, or selling the same or similar invention would be under trade secret law. Trade secrets are protected under state law. This protects business or technical information that provides value. The only requirements are that the secret has value and that the owner takes steps to keep it confidential.

After You've Submitted Your Patent Application

Once you submit your application to the USPTO, you can stamp all your products and marketing material as "Patent Pending." The patent pending designation warns that others' use of your invention may have serious consequences once the patent is approved.

After the USPTO Approves Your Patent

After a patent receives approval, the owner has a limited-time monopoly on the invention's creation, use, sale, and importation. Owners can sue anyone who makes, uses, or sells the invention without the owner's consent for patent infringement. These rights last for a set amount of time from the date of the application. If another invention infringes upon the patent, courts can issue injunctions and award large damages, particularly for willful infringers (those who knew of the patent, should have known they were infringing, and did it anyway).

After a Patent Expires

Once a patent expires, so do the patent holder's exclusive rights. At this point, anyone can use, sell, and import the invention. Patent owners can file patent infringement lawsuits and make patent infringement claims for infringements that happened during the life of the exclusive patent.

How is patent infringement determined?

Patents consist of "claims." Claims are different elements that make the invention unique. "Prior art" is a term that refers to any document or article that was available to the public before the date of the application.

Courts prevent patent owners from claiming protection for claims given up during the application stage. Suppose the patent owner can prove an amendment was made for a reason other than avoiding prior art and it was not meant to surrender. In that case, the owner can still argue infringement under the doctrine of equivalents.

What happens during a patent infringement case?

After a patent owner brings an infringement case, the accused infringer has many defenses. They can argue that:

• The patent was disclosed over a year before the patent application
• The accused device doesn't infringe
• The patent is invalid

The most common defense to a patent infringement lawsuit is that the patent was wrongly approved by the USPTO and thus invalid. Accused infringers will attack each of the five requirements for a patent:

• Patentable subject matter
• Utility
• Novelty
• Nonobviousness
• Prior disclosure

If a court determines a patent is invalid, the patent holder loses all exclusive rights to the invention.

Have More Questions About the Patent Law? Talk to a Patent Attorney

Having your idea patented is no guarantee that it'll have full protection, particularly if you don't know it was stolen. If you are a small-business owner or startup wanting to learn more about intellectual property protections (IP protections), contact a local intellectual property lawyer. To learn more about intellectual property protections, visit FindLaw's Intellectual Property section.