General Questions About Patents

Who is entitled to a patent?

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Typically, the inventor or inventors. However, if an inventor has sold his or her rights, then the purchaser will own the invention and be able to obtain a patent. If the inventor makes the invention under an employment contract, the employer may own the invention and have the right to the patent.

Is there more than one kind of patent?

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In the United States, there are three kinds of patents: utility patents, design patents and plant patents.

What is a patent claim?

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All utility patents include one or more patent claims. A design patent includes a single patent claim. A claim in a patent descripes the metes and bounds of the right which the patent confers on the patentee to exclude others from making, using or selling the patented invention.

Does a United States patent provide patent protection in other countries?

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No. Patent protection must be obtained in each country in which protection of an invention or design is desired.

What is a patentability search?

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A patentability search, sometimes called a preliminary search or a novelty search, is conducted to determine whether it is likely that an invention can be patented.

In the United States, a patentability search most often consists of a search of prior issued United States patents conducted at the US Patent and Trademark Office or via online searches of certain patent databases, or both. A patentability search may also include a search of technical literature in the field of the invention.

Why should a patentability search be conducted?

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It is generally advisable to conduct a patentability search. In the United States alone, there are a large number of issued patents (over 9,500,000) arranged in about 450 classes of invention and more than 150,000 subclasses of invention. Owing to the large number of patents previously issued, it is possible that an invention may not meet the patentability requirements of novelty or unobviousness due to prior existing patents.

What does “patent pending” mean?

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The words “patent pending” or “patent applied for” is a way of notifying the public that an application has been made for a patent.

When may “patent pending” be used?

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“Patent pending” should not be used on a product unless a patent application has been filed for the article on which the patent pending notice is given.

Should a patented article be marked patented?

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Yes. Patent owners and persons making or selling any patented article may give notice to the public that an article is patented, either by placing the word “patent” or the abbreviation “pat.”, together with the patent number, on the patent article, or when this can not be done due to the nature of the article, by fixing to it, or to the package in which one or more of the patented articles is contained, a label containing such notice.

Virtual marking is also permissible, that is, a covered product may be marked with “pat.” or “patent” and a free-to-access web address that associates the product with the patent number.  The web page at the web address must identify a covered product by one or more patent numbers and clearly correlate each product with the specific patent number(s) applicable to the product.  The following are examples of virtual patent markings that may be conspicuously fixed on the patented article:


When an individual enters the URL address, a web page must be displayed listing the patents for each product sold.

In the case of an infringement, no damages can be recovered, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringements occurring after such notice. The filing of a lawsuit for infringement constitutes such notice.

What Is patent infringement?

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Patent infringement can be direct, indirect or contributory. Direct patent infringement is the unauthorized manufacture, use, offer for sale, sale or importation of a patented invention. Indirect infringement occurs if a person actively encourages another to directly infringed a patent. Contributory infringement is committed by knowingly selling or supplying an item for which the one use is in connection with a patented invention. Good faith or ignorance is not a defense to a claim of direct infringement, but it can be a defense for indirect or contributory infringement.

What remedies are available for patent infringement?

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The remedies for patent infringement include:

  1. Injunction.
  2. Damages, including treble damages for willful infringement.
  3. Attorney’s fees for the prevailing party in exceptional cases.
  4. Court costs.

Can an infringer be sued for infringing acts that occur before a patent has been issued?

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No. The issuance of a patent is a prerequisite for filing a lawsuit and a patent owner usually cannot retroactively recover damages for acts occurring prior to the issuance of the patent. However, in the case of a utility patent, it may be possible to retroactively recover a reasonable royalty for an infringement that occurs after an application is published, but before the patent issues, provided (a) the infringer had actual notice of the published application and (b) the claims in the patent are substantially identical to the claims in the published patent application.