A patent is a legal document that protects an inventor's exclusivity to his invention. This gives an incentive for inventing useful things, as the inventor can earn fees, also known as royalties, by obtaining a patent and then licensing it to others. The unique American patent system is what fueled the greatest increase in wealth in the history of mankind, particularly in the United States in the decades following the Civil War. There are several types of patents.
Conservative Phyllis Schlafly wrote in favor of patent rights for small inventors as much as she wrote about any other topic. She observed that patents have helped enormously in alleviating the tedium of the work of a homemaker, as in the washing machine, dishwasher, light bulb, refrigerator, and so on.
The patent right is, in the language of the American patent statute, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is protected is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the U.S. Patent and Trademark Office.
There are three types of patents:
- Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof - on June 19, 2018, the U.S. Patent & Trademark Office issued its 10 millionth patent;
- Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
To be the subject of a U.S. utility patent, an invention must be new, useful, and non-obvious. Obviousness is determined from the standpoint of a person having ordinary skill in the art who had no knowledge of the invention itself. Other countries typically require novelty, inventive step (in practice the same thing as non-obviousness), and industrial applicability (a somewhat more stringent standard than utility). They may also exclude certain categories of inventions patentable in the United States, such as methods of diagnosis or treatment performed on a human or animal body and computer-implemented business methods.
In the United States, the term of a utility patent (filed after 1995) is 20 years from the earliest non-provisional U.S. filing date of which the patent application claims the benefit, although that term may be adjusted for excessive delays on the part of the U.S. Patent and Trademark Office (not those on the part of the applicant).
For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which begins with the date of the grant and usually ends 20 years from the date you first applied for the patent subject to the payment of appropriate maintenance fees. Design patents last 14 years from the date you are granted the patent. Note: Patents in force on June 8 and patents issued thereafter on applications filed prior to June 8, 1995, automatically have a term that is the greater of the twenty-year term discussed above or seventeen years from the patent grant.
Patents can be viewed as a sparkplug of the free market in motivating innovation and new products. Critics call patents a distortion of free enterprise, however, establishing a temporary monopoly for the patent holder. But the monopoly is only for a new creations that may not exist in the absence of the patent, so the criticism may be misplaced.
Many economists believe that patents are a good idea nevertheless, because they encourage research and development and the products that result ultimately increase net welfare for consumers. Also, the details disclosed in a patent may lead to further improvement of a product by other inventors.
Some opponents of patents believe that any such distortion of free trade and other free market outcomes is automatically bad for society. Other critics believe that patents are too easily abused. "Patent trolls" may defend their patents not to protect their own interests in producing a product, but merely to harm competitors. Other critics of patents contend that the U.S. Patent and Trademark Office does a poor job of reviewing applications, often issuing patents that are too broad or that overlap previously patented inventions.
Anti-patent DC, and China
Historically, an original patent had a red ribbon (ribbon copy), and can take 6 months (and an additional fee) to replace if it is lost. More recently the patent office has gone paperless. In litigation a certified copy of the patent record will typically be required, which requires a small fee and a delay.
Submitting your patent ID to Amazon may persuade it to shut off a foreign seller.
A "Schedule A" lawsuit under the Lanham Act is another approach to address infringement by a foreign seller.
If a third party is selling on Amazon and infringing, then the Amazon process consists of requiring both sides to deposit $4,000 for it to resolve it with an independent inquiry. Often a third party declines to deposit its $4,000, and after 3 months Amazon will delist that company's infringing product for failure to make the deposit. But if Amazon itself is infringing as the source of the product, then this process does not work as well.
- 35 U.S.C. § 154
- U.S. patents are attacked and invalidated in China’s courts, too. https://www.wsj.com/articles/u-s-china-technology-disputes-intellectual-property-europe-e749a72e