Keith Mack
The question of whether common law applies to patents is a complex one. Patents are a form of intellectual property, and while common law does cover trademarks, intellectual property is generally broken down into four distinct categories: patents, copyrights, trademarks, and trade secrets. Each type has its own set of laws governing ownership and usage. Patents are granted by patent offices, such as the United States Patent and Trademark Office (USPTO), and are subject to national laws and international agreements, which vary between countries. While the English legal system laid the foundation for patent law in countries with a common law heritage, including the United States, the applicability of common law to patents in the US has been a subject of debate, with some arguing that the Supreme Court has created a federal common law of patents.
| Characteristics | Values |
|---|---|
| Common law trademarks | Covered under common law |
| Common law trademarks rights | Go to the business that uses the trademark first |
| Common law trademark enforcement | The business owner is responsible for enforcing their common law rights |
| Common law trademark registration | A registered trademark or patent application could infringe on your common law trademark unless you oppose that application within five years of it being submitted |
| Common law trademark search | Check business directories, website domain sites, phone directories and regular search results to see if your trademark is already protected under common law |
| Common law intellectual property | Does not protect intellectual property |
| Patents | Public rights that can be canceled by an administrative tribunal |
| Patent validity | Can be found invalid on grounds described in the relevant patent laws, which vary between countries |
| Patent duration | 20 years after application, with some patents extended for an additional five years |
| Patent exclusivity | Patent owner has the sole authority to control the production, use, sale, and importation of the patented invention |
| Patent application | Must include one or more claims that define the scope of protection that is being sought |
| Patent law | A unique legal framework designed to provide exclusive rights to inventors for their novel, new and useful process, or non-obvious inventions |
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What You'll Learn
Common law trademarks
In the United States, trademarks are covered under common law. A common law trademark refers to the rights belonging to the first person or company to use a particular mark on goods or services in a limited geographical area. This means that a business may have acquired a common law trademark by simply using a certain logo, business name, or tagline.
Common law trademark rights are limited to the geographic area in which the mark is used. For example, if a coffee blend is sold under the name 'BLASTER' in California only, the trademark rights to that name exist only in California. If another coffee retailer begins to market a different blend in New York under the same name, there would be no trademark infringement. However, if the New York company attempted to sell their coffee blend nationwide, they would discover that the California company's common law rights to the mark would prevent them from entering the California market.
It is important to note that common law trademarks are harder to enforce. While registration is not required to establish common law rights to a trademark, it is still recommended as it gives trademark owners substantial additional rights not available under common law. For example, a registered trademark can be protected by the USPTO, which can help deter others from using the trademark or one that is too similar. Additionally, a registered trademark allows the owner to use the federal trademark registration symbol, which can further deter infringement.
As a business owner, it is the owner's responsibility to enforce their common law rights. A common law trademark owner can still sue others for trademark infringement, but with certain geographical limitations. They can also oppose a trademark application or cancel a registration less than five years old. However, a common law trademark cannot be recorded with US Customs, and it may be difficult to provide notice of common law rights to others who have never purchased the goods or services.
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Patents as public rights
The classification of patents as public rights has been a subject of debate, with some arguing that it is a mistaken classification. The distinction between private rights and public rights is crucial as it determines how constitutional guarantees apply to patents in administrative proceedings. If patents are deemed private rights, full constitutional protections apply, such as the guarantee of due process. On the other hand, if patents are considered "public rights", they may be subject to redefinition or elimination by administrative tribunals, such as the Patent Trial & Appeal Board.
The debate revolves around the nature of patents and whether they are private property rights or special privileges granted by the state. In the United States, the Supreme Court, in Oil States v. Greene's Energy, held that patents are public rights that can be canceled by administrative tribunals because they are "creatures of statute". This decision was based on the rationale that patents are created by statutes enacted by legislative bodies and are, therefore, subject to modification or revocation by the same legislative authority.
However, critics argue that this classification is mistaken and that patents should be viewed as private property rights. They contend that all legal rights, including property rights, have mixed origins in both statutes and judicial decisions. The distinction between private and public rights is not as clear-cut as simply whether a right is born of a statute or a court decision. Furthermore, they argue that classifying patents as public rights relegates vested private property rights to the uncertainties of administrative processes, which can be detrimental to inventors and innovators.
The implications of classifying patents as public rights or private rights have significant consequences for patent holders and innovators. If patents are deemed public rights, it gives administrative bodies the power to modify or revoke patents at their discretion, potentially undermining the stability and predictability of the patent system. On the other hand, recognizing patents as private property rights would afford them stronger constitutional protections, ensuring that patent holders can fully exercise their rights without fear of arbitrary interference from administrative agencies.
In conclusion, the classification of patents as public rights has important implications for how patents are treated in administrative and legal proceedings. While some argue that patents are public rights due to their statutory nature, others strongly contest this view, emphasizing the complexities of legal rights and the potential negative consequences for inventors. The debate highlights the need for a nuanced understanding of the nature of patents and the careful consideration of the rights and interests at stake.
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Common law IP rights
Intellectual property (IP) is generally divided into four categories: patents, copyrights, trademarks, and trade secrets. Each type of IP is governed by a distinct set of ownership and usage laws. While IP is one of a small business's most valuable assets, it is not protected by common law. Trademarks are the only type of IP that receives protection through common law.
Common law trademarks are harder to enforce and are limited to a specific geographic area where the intellectual property is used, as well as any areas where it could "reasonably expand". For example, a noodle restaurant called Tasty Noods in Los Angeles could only claim reasonable common law trademark rights for California, not Maryland or New York.
It is the responsibility of the business owner to enforce their common law rights. A registered trademark or patent application could infringe on a common law trademark unless the owner opposes the application within five years of its submission. To enforce a common law trademark, business owners must search federal trademarks, state trademarks, and common law trademarks, such as business directories, website domains, etc.
Patents, on the other hand, must be registered and maintained. A patent expires 20 years after application, although some patents may be extended for an additional five years. A patent may also expire early if the holder does not pay the appropriate patent fees.
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Common law origins
The common law origins of patent law can be traced back to the 17th and 18th centuries, with the first patent in England granted to a woman, Mrs. Amye Everard Ball, in 1637 for a tincture of saffron. In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt. During the reign of Queen Anne in the 18th century, patent applications were required to supply complete specifications of the principles of operation of the invention for public access.
The English legal system became the foundation for patent law in countries with a common law heritage, including the United States, New Zealand, and Australia. The first Patent Act of the U.S. Congress, titled "An Act to promote the progress of useful Arts", was passed on April 10, 1790, with the first patent under this Act granted on July 31, 1790, to Samuel Hopkins of Vermont for a method of producing potassium carbonate.
Legal battles around the 1796 patent taken out by James Watt for his steam engine further developed patent law principles. These cases established that patents could be issued for improvements to existing machines and that ideas or principles without specific practical application could be patented. The U.S. Supreme Court has also played a role in shaping patent law, with cases like Oil States v. Greene's Energy, where the Court held that patents are public rights that can be canceled by administrative tribunals.
Patent law is a unique legal framework designed to provide exclusive rights to inventors for their novel, new, and useful processes or inventions. The core objective is to safeguard inventors' rights and stimulate technological advancements. Patent law is a specialised field within intellectual property law, which is broken down into patents, copyrights, trademarks, and trade secrets, each protected by its own set of laws. While trademarks are covered under common law, intellectual property as a whole, including patents, is generally not protected by common law.
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Patent law in common law countries
The term "common law" refers to a set of unwritten laws that are not officially codified but are instead set by legal precedent in the courts. Common law comes into play when the outcome of a case or dispute cannot be determined by referencing an official law. While trademarks are covered under common law, patents are not. Patents are legal rights granted to an inventor that provide the owner with exclusive rights to their invention for a limited time, usually 20 years. During this time, the invention cannot be commercially made, used, distributed, imported, or sold by others without the owner's consent.
In common law countries, patent law is regulated at the federal level, and each country has its own policies and practices outlined on federal websites. The formalities and substantive requirements for filing patent applications and granting patents vary from one country to another. For example, in the United States, patent law is regulated by federal law, and novelty is central to the grant or denial of each application. Most countries require proof that the invention is not publicly known and that it is useful or meets a utility function.
Internationally, the World Intellectual Property Organization (WIPO) works with its member states and observer organizations to develop balanced international frameworks for patent law and policy. The Paris Convention, the first major international agreement relating to the protection of industrial property, outlines the principle of "national treatment", the right of priority, and common rules in the field of substantive patent law that Contracting States must follow.
Additionally, the Patent Cooperation Treaty (PCT) establishes an international patent filing system, allowing inventors to seek patent protection for their inventions simultaneously in multiple countries. Inventors can also explore regional associations and countries that allow for exclusive use by the patent owner or those licensed by the owner.
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Frequently asked questions
Common law does not apply to patents. Patents are considered public rights that can be canceled by an administrative tribunal.
A patent typically lasts for 20 years from the date of application, although some patents may be extended for an additional five years.
The procedure for granting patents varies between countries according to national laws and international agreements. In the US, the USPTO reviews all applications, and appeals can be made to the Patent Trial and Appeal Board (PTAB) if an application is rejected.
The core objective of patent law is to safeguard the rights of inventors and stimulate technological advancements.
A well-managed patent portfolio can provide a competitive advantage, prevent competitors from entering certain markets, and generate income through licensing agreements.
