Patent law is one of the most complicated areas of law. Not only does a patent combine both law and technology, patent laws are developed from many sources, such as the US Patent and Trademark Office and the federal courts from all over the US. It is only natural that many inventors and entrepreneurs are confused with its nuances and complexities. Below are some of the common misconceptions about patents:
1. If I obtain a patent, I have a right to use and sell the invention. A patent provides the right to exclude others from making, using, or selling the patented invention. Many companies find this very valuable, as they can expand or preserve their market shares, demand licenses or royalties, and prevent competition. A patent does not provide a license to use, make, or sell a product. Having a patent does not guarantee that you will not be exposed to any liability for infringing other peoples' patents. You do not need a patent to manufacture or sell a product. However, you will not have any exclusivity, and any company can compete with you. Many investors do not like to invest in non-patented ideas or businesses of start ups, as they are afraid that bigger and well established companies can freely compete against them.
2. I must have a prototype before I can apply for a patent. If you can describe your invention such that a person skilled in the art listening or reading your description can make and use your invention without much experimentation, then you are ready to apply for a patent. Obtaining a prototype may be good in terms of refining the manufacturing process or ironing out any flaws of the concept, but it can be very expensive and can take some time. Many companies that file patent applications do not have working prototypes.
3. I can stop an infringer with a "patent pending." A patent pending merely means you have a pending patent application that still needs to be examined by a patent examiner. Since your invention has not been proven to be novel and to meet the other requirements to obtain a patent, you really have not perfected or cemented your exclusive rights. Your patent pending may, however, allow you to seek for retroactive damages if you obtain a judgment for patent infringement against infringers, for instance, all the way back to the time your application was first published.
4. I must have a patent search done prior to filing my patent application. A patent search is not mandatory. However, it is worthwhile to do, as it may save you time, resources, and money. The patenting process can be expensive and can take over 3 years. You should try to determine your chances of obtaining a patent. After all, you do not want to spend the time, resources, and money only to find out that your idea has been practiced before.
Because there are many misconceptions about patents, it is important to seek the advice and guidance from a registered patent attorney.
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