Cameron Miranda
Patents are a crucial aspect of intellectual property law, protecting inventions and providing inventors with exclusive rights to control the production, use, sale, and importation of their creations. While patents are typically granted and enforced by national laws and regional patent offices, the question of whether patents are protected by common law has been a subject of debate. Common law refers to a set of unwritten laws established by legal precedent in the absence of official legislation. Although trademarks are generally protected under common law, patents are distinct and governed by specific national and international regulations. This distinction is important for inventors and businesses to understand, as it impacts their ability to protect their intellectual property rights effectively.
| Characteristics | Values |
|---|---|
| Definition | Patents protect inventions |
| Types of IP | Patents, copyrights, trademarks, and trade secrets |
| Common Law | A commonly held set of unwritten laws that are not officially codified but are set by legal precedent in the courts |
| Common Law Trademark Rights | Go to the business that uses the trademark first |
| Common Law Trademark Enforcement | The responsibility of the business owner |
| Common Law Trademark Protection | Only trademarks are automatically protected |
| Patent Expiry | 20 years after application |
| Patent Extension | May be extended for an additional 5 years |
| Patent Protection | Granted by national or regional patent offices |
| Patent Infringement | Making, using, or selling a patented invention without authorization |
| Patent Law | Governed by national laws and international treaties |
| Patent Rights | Exclusive rights to the patented invention |
| Patent Application | A claimed invention, a potentially patented device, a design patent, or other property right |
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What You'll Learn
Patents are not protected by common law
Patents are a crucial part of intellectual property law, providing legal protection to inventors and their innovations. Patent law focuses on granting exclusive rights to inventors for their inventions, allowing them to reap the benefits of their labor while contributing to societal progress. The core objective of patent law is to safeguard the rights of inventors, giving them sole authority over the production, use, sale, and importation of their inventions.
To obtain a patent, inventors must apply to national or regional patent offices, demonstrating that their invention meets the criteria of novelty, utility, and non-obviousness. Patent attorneys aid in this process, providing strategic management and utilization advice. Patent rights are vital, fostering innovation and providing temporary monopolies to inventors.
Patent infringement occurs when a third party makes, uses, or sells a patented invention without authorization. In such cases, patent owners can seek redress in federal courts, which play a crucial role in the patent system. Patent protection typically lasts for 20 years, after which the invention enters the public domain.
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Common law trademarks are harder to enforce
For example, if a business sells a product only in southern California under a certain name, their common law trademark may prevent another business from selling the same type of product under a similar name in Los Angeles. However, they cannot prevent a competitor from using the same name in San Francisco or elsewhere in northern California. If the competitor is the first to use the trademark in San Francisco, their common law trademark rights may even prevent the original business from expanding into that market.
To truly protect a common law trademark, it is recommended to register it with the United States Patent and Trademark Office (USPTO). Registering a trademark with the USPTO gives a legal presumption of the right to use the trademark nationwide and prevents others from using a similar mark for similar goods or services. It also allows trademark holders to file a lawsuit in federal court to enforce their rights. Additionally, federal trademarks can use the Ⓡ symbol for deterrence, and registered trademarks never expire.
While common law trademarks may prevail over federal trademarks if they have an earlier, proven first-use date in a certain region, they are not as easily enforced and are limited in their geographic scope. Therefore, as a business grows, investing in a federal trademark registration is often a wise decision to protect the goodwill behind the brand and product on a national level.
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Patents are territorial in nature
Patents are not protected by common law. Common law refers to a set of unwritten laws that are not officially codified but are instead set by legal precedent in the courts. Trademarks are covered under common law.
For example, if a person is not granted a patent in the US due to a prior registered patent for a similar product, but is granted the patent for the same in the EU, then manufacturing and marketing that product in the EU is beneficial, whereas doing the same in the US will lead to infringement. An Indian patent is valid only in India, and a US patent is valid only in the US. Therefore, one must apply for registration of patent rights in each and every country where one is interested in protecting their inventions.
Internationally, there are international treaty procedures, such as the procedures under the European Patent Convention (EPC), that centralize some portion of the filing and examination procedure. The Paris Convention set a minimum patent protection of 20 years, but the most significant aspect of the convention is the provision of the right to claim priority. Filing an application in any one member state of the Paris Convention preserves the right for one year to file in any other member state, and receive the benefit of the original filing date. Another key treaty is the Patent Cooperation Treaty (PCT), administered by the World Intellectual Property Organization (WIPO) and covering more than 150 countries. The PCT provides a unified procedure for filing patent applications to protect inventions in each of its contracting states along with giving owners a 30-month priority for applications.
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Patent infringement
Patents are territorial, and patent infringement occurs when a third party, without authorization from the patentee, makes, uses, or sells a patented invention in the country where the patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling, or importing the patented item without authorisation. However, people in other countries may be free to exploit the patented invention in their country.
To determine if a patent has been infringed, a specific test is used, which varies from country to country. In general, it requires that the infringing party's product falls within one or more of the independent claims of the patent. If all the claim's elements are found in the technology, the claim is said to "read on" the technology. If a single element is missing, the claim does not literally read on the technology, and the technology generally does not infringe the patent with respect to that claim, except if the doctrine of equivalents is considered applicable.
A clearance search, or freedom-to-operate (FTO) search, is often performed by professional patent searchers under the direction of patent attorneys to determine if a product infringes any issued patents or pending patent applications. A validity and enforceability opinion is a legal opinion on whether a given patent is valid and/or enforceable, and a validity opinion is often sought before litigation.
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Patents as private property rights or special privileges
Patents are territorial in nature and are granted and enforced by national laws and international treaties. The core objective of patent law is to safeguard the rights of inventors and their innovative contributions to society. Patent rights and protection are vital aspects of patent law, playing an integral role in fostering innovation by providing a temporary monopoly to inventors. This allows them to reap the fruits of their labour while contributing to the greater good of society.
The view that patents are property rights akin to those arising from tangible, physical property has been long-held. However, upon closer examination, patent rights differ fundamentally from physical property rights. Patents emerged historically as government-granted privileges, not as recognitions of pre-existing property rights. For instance, early patents in England were a form of royal patronage, where the monarch granted letters patent at their discretion.
The distinction between patents and physical property stems from the economic nature of ideas and inventions, which economists refer to as "non-rivalrous" and "non-excludable". Unlike physical property, one person's use of an idea does not prevent others from also using it. Ideas exist without scarcity, and inventors can capture the benefits of their work through the patent system.
In the United States, the Supreme Court's decision in Oil States Energy Services v. Greene's Energy Group clarified that patents are public rights rather than private property rights. This decision held that patents are "creatures of statute", meaning they are created by legislative bodies and can be revoked by administrative tribunals. This classification is based on the understanding that patent rights are not inherent or derived from common law, but rather are granted by positive law, which includes legislation and regulation.
The distinction between private property rights and public rights or privileges is significant. Private property rights are considered fundamental and transcend the formation of governments, according to 18th-century theorists influenced by Locke and Blackstone. In contrast, public rights, franchises, and privileges are considered to "result from, and are posterior to, the formation of states and societies". This distinction has important implications for how patent rights are protected and enforced, particularly in administrative proceedings.
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Frequently asked questions
No. Patents are not protected by common law. Common law refers to a set of unwritten laws that are set by legal precedent in the courts. Patents, on the other hand, are governed by national and international treaty laws.
Common law is a set of unwritten laws based on legal precedent, whereas patent law is a written, statutory law that grants exclusive rights to inventors for their inventions.
You cannot protect your patent under common law. To protect your patent, you must register it with the relevant national or regional patent office. In the US, this is the USPTO.
An initial rejection is not uncommon. You will receive a letter outlining the issues with your application and you will have a chance to respond with arguments or amendments.
No, patents are enforced through the courts on a national basis. If you discover someone infringing on your patent, you may choose to commence a lawsuit against them.
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