All You Need to Know About Patent Law and Patent Lawyers
Before getting on the patent lawyers, it is necessary to understand first what is ‘patent’. A patent is a type of intellectual property that provides the owner with the legal right to exclude others from making, selling, marketing, or using an invention. However, this right is granted for a limited period which can range from few months to a decade depending upon the case and the invention.
Moreover, the patent is granted to the applicant in exchange for publishing a sufficiency of disclosure or enablement. This requirement is very fundamental to patent law. In most developed countries especially the technologically advanced ones, the patent law falls in the category of private law.
On the other hand, the patent lawyers are the attorneys that have specialized qualifications for representing the clients on their behalf for obtaining the patents and acting in all the matters and procedures related to patent law which range from filing a petition to obtain a patent to representing a client who is against the granted patents.
What is Patent Law?
As mentioned before patent law is a type of intellectual property law that is used for inventions and patents lawyers are the attorneys who have expertise in this field and practice this type of law.
Traditionally, the patent law was exercised intangible scientific inventions such as the bulb, shoes, car engines, computers, and other inventions. However, with the passage of time and technological advancements, the scope of patent law drastically expanded. Now it deals with tangible scientific inventions as well as non-tangible intellectual properties which include advanced business practices, the algorithms used in software, and even genetically modified living organisms. These new additions to the patent law not only require new legal remedies to the law but also increased the demand for these lawyers.
History of Patent Law
In the recorded history of mankind, the first recorded patent was granted to a Renaissance engineer and architect named Filippo Brunelleschi in Florence in 1421. He was granted a patent by the authorities for his invention of the barge with hoisting gears. According to the granted patent, he was given a monopoly over his invention for 3 years.
This new idea of granting patents to the inventors was very appreciated, and soon, this practice was spread from Italy to all over Europe. In many countries, this practice of granting special privileges to the inventors was adopted to boost the process of establishing new industries for over a couple of centuries.
During the reign of Queen Elizabeth 1, many patents were granted against the new inventions that were helpful for the process of industrialization. However, amid the glorious revolution, a strong sentiment grew against it as it was claimed that the crown is misusing its power to grant special privileges to the selected people. After that, the privy council started to scrutinize more tightly before granting the patents.
Since then, the people started understanding the patents, and the ordinary people used to represent themselves or their clients in front of authorities as patents lawyers. Nevertheless, this practice of granting patents was legally channelized in 1623 when the parliament enacted the Statute of Monopolies.
In the United States of America (USA) the article 1 section 8 of the Constitution authorized Congress to create a system of a national patent to promote the progress of science and useful arts. The first statute related to patents was enacted and passed by the Congress of the USA in 1790, just after few years of getting independence. Under these patent laws, the inventors are granted special and exclusive rights and privileges for the respective discoveries. As for today, almost all the countries that are constitutionally democratic have constitutional remedies to deal with the issues related to patents.
The Need for the Patent Law
There is a strong need for patent law, especially in this era where technology and inventions are booming because of the following reasons:
Protection of Your Invention
Patent laws are important because it helps you to safeguard your inventions. Any invention, whether scientific or not takes a lot of time and energy to produce because it is the first one of its kind. If we look at the account of history we will see many inventions such as the telephone took years of hard work and dedication by the inventors to produce. For that much dedication and hard work, one must be incentivized. The patent law incentivized you by granting you a patent so that you can have a monopoly for a limited time. So, if you have invented something in the US you have to hire these types of lawyers to protect your invention.
It Helps Your Business Grow
Patent laws can help any company or a startup to grow its business by building market shares and special margins. It gives you a comparative advantage over your competitors. The classic example that supports this argument is Apple’s iPhone.
You must have wondered that though these iPhones are great technology and have many comparative advantages over the other phone companies but why it is so expensive, and why no other phone manufacturing company is trying to facilitate the customers by providing all the features that come with iPhone?
There is one simple answer for that, and it is patented. The management of Apple was smart enough, and they hired patents lawyers to protect their invention, which ultimately resulted in the growth of their business.
It Protects Your Market Share
The presence of patent laws not only protects your invention but also helps you in protecting the market share of your company. We try to elaborate this point from the above-quoted example of Apple. We know very well that Apple comprises a very small share in the market of phones in the world. However, their market share is well-protected, thanks to patent laws.
As we discussed earlier that the products of Apple are a little expensive which leaves room for different companies to take their share if there were no patent laws. Many mobile companies especially the Chinese ones have the capability of producing phones like iPhones at a much cheaper rate which can result in a loss of market share for Apple. But the patents lawyers hired by the company made sure that it does not happen.
It Can Help You Get New Sources of Revenue
The patent laws can also help you to get new sources of revenue for your company. It is because of the trust that is developed by the company after being patented. There is a huge growing trend of investing in companies that have patented their products. It is widely believed that the companies with patent licenses are less likely to go in a loss, at least not in its period of being patented.
You can analyze this argument by looking at the trend of investments in the stock market of any country. So if you are a US citizen and want your business to flourish, you must hire patents lawyers.
Requirements for Obtaining a Patent
Obtaining a patent is a lengthy and technical process. You just can’t go to US Patent and Trademark Office with patents lawyers and ask for a patent against any of your products. It must go through strong scrutiny before obtaining a patent. The requirements for obtaining a patent in the US are mentioned below.
The Innovation Must be a Patentable Subject Matter
The law of the USA has explicitly mentioned the patentable subjects and those which are not. So before hiring patents lawyers, you must make sure that whether your innovation falls in the category of patentable subjects are not. The is a wide list of patentable subjects which includes new products such as electronic appliances, toys, medical pieces of equipment, and many more, new processes of manufacturing and industrial methods, software, biological methods, and business methods. Other subjects which are not patentable include mathematical algorithms, plans, artistic creations, and many more.
The Innovation Must be New
In the US, you can’t patent anything already available in the market. It is because it makes no sense at all to claim a patent to gain economic benefits for something that is already well known to the public. For that, a test is conducted before deciding whether to grant a patent or not, which is known as the “test of novelty” The test of ‘novelty’ is assessed at the date you file your application for the patent.
The Innovation Must be Inventive
In this process, the innovation goes through scrutiny of the obviousness of the new product. It means that the innovation must not be obvious to a skilled person. And if your invention is obvious to a skilled person that that does not qualifies to obtain a patent.
The Innovation Must be Useful
This means that before granting a patent to your invention in the US the relevant authorities will first assess that whether there is any actual use of this invention or not. You can’t obtain a patent for your product or invention by just hiring a lawyer. Moreover, it is also judged whether or not someone is going to buy this product.
The innovation Must Not Have a Prior Use
It means that the product or invention for which you want to obtain a patent must not have a prior use for any other purpose. If you have already sold your product or used any business process before it, it disqualifies you from obtaining a patent.
Types of Patents
Just like any other type of law, the patent laws vary from country to country. Though the World Trade Organization (WTO) has given some guidelines for granting patents, there are many variations you can see as soon as you cross the border. In the USA there are 3 general types of patents that can only be allowed by the US Patent and Trademark Office which is an agency responsible for patent applications at the federal level.
The 3 types of patents granted in the US are the following.
The most common type of patent in the US among all 3 is utility patent. A utility patent is a patent that deals with the creation of a new or improved product, process, or machine. If you have come up with an invention that has not been revealed to people, you can apply for a utility patent. It is also known as a patent of invention, and it prohibits others from making, using, and selling the invention without your permission. The utility patents are further divided into 5 categories which are mentioned below.
- A process
- A machine
- A composition of matter
- A manufacture
- Upgrading an already existing product or idea
Some inventions might fall in more than one of the above-mentioned categories. Take an example of a mobile phone. When invented, it was both a process ( the software used to develop a technology to connect people far from each other) and a machine (the machine that you carry with you to connect yourself to different people).
However, it must be noted that one patent is issued no matter how many categories a product or creation falls into. Normally, a utility patent lasts for 20 years.
It is the second most common patent in the USA. Creating a unique and fresh design of an already manufactured device that adorns it, you will get yourself qualified for this type of patent. The new and original design of any device created by you must be ornamental or aesthetic. Once you obtain the design patent, you can stop others from making, selling, and using the design. However, unlike utility patent which is issued for 20 years, design patents are only valid for 14 years.
This is the third and least frequently used patent in the USA. To obtain this type of patent, you have to develop or discover and asexually produce a distinct new variety of plants. In short, you have to develop new plants without using the genetic seeds of any plant. Many lawyers have further specialized plant patents. Just like the utility patents the plant patents are issued for 20 years in the USA.
What do Patents Lawyers do?
Patents Lawyers work at all the levels of the government and court. They assist their employees in getting their legal rights within the legal boundaries of patent law. These lawyers submit applications to the US Patent and Trademark Office for all types of properties which includes both national and international. Patents Lawyers provide a wide range of services which includes advising the clients, cancellations, difficulties as well as third-party objections. Following are the main duties of patents lawyers.
Patents Lawyers do the management of the intellectual property. As you know the process of a lawsuit in the US is a technical process and any loophole left in the case can cost you hugely. They make sure they have all the relevant papers required in a patent.
Patents Lawyers investigate the state of patents and inventions. Before applying to obtain a patent on behalf of their clients, they thoroughly go through the case and look at whether the case is strong enough to obtain a patent or not.
Patents Lawyers prosecute the patents applications on behalf of their clients. They look upon the case and provide arguments against a client who wants to seek a patent against his/her invention. On the other hand, the client who wants to seek a patent will be represented by patents lawyers.
Patents Lawyers advise their clients on how to protect their intellectual property, copyrights, and trademarks. Among the advice includes the legal procedure to obtain a patent and for which type of patent the invention qualifies.
Transfer of Right
Patents Lawyers deal with the transfer of intellectual property rights. They make sure that the rights are being transferred in a transactional way without any hurdle. After obtaining a patent from US Patent and Trademark Office (USPTO) they also deal with other relevant authorities and agencies.
Prosecutes the Violator
Patents Lawyers bring lawsuits against those who violate the patent given to their clients. They can demand huge punishments from the violators in the forms of money and compensation. They make sure that the violators are punished legally.
Filing the Application
Patents Lawyers draft the application for filing the patent on behalf of their clients. In the US as you all know that the legal procedure a full of technicalities, and without fulfilling the legal demands in the applications your case doesn’t stand on a strong foothold. They make sure that all the prerequisites are fulfilled in the application for obtaining a patent.
Requirements to be Successful Patents Lawyers
As we all know to have a successful white-collar career, you need to fulfill certain requirements. Now we will discuss the requirements to be a successful lawyer in general and a patent lawyer in particular.
Do a Degree in Science or Engineering
You must be wondering that patents lawyers are attorneys but why they need a degree in science or engineering. Well, a degree in a technical field such as science and engineering provides you with the technical knowledge which will help you increase your knowledge base of the patents you wish to work with. Moreover, if you choose a technical field that is growing fast, you will have greater opportunities in your professional field as a patent attorney. However, if you have not earned a bachelor’s degree in science or engineering, you can still qualify to be a patent lawyer by taking a science minor in your bachelor’s. The purpose of the degree of science or engineering or having these subjects as a substitute in our bachelor’s degree is to make you qualify for the US Patent and Trademark Office (USPTO) exams.
Taking the Lawsuit Admission Test (LSAT)
The next step you will be required is to qualify for a law school to obtain a law degree. For that purpose, you will need to pass the lawsuit admission test (LSAT). Normally, the test includes the objective type section in which you answer the multiple-choice questions (MCQs). The questions will be related to reading comprehension, analytical reasoning, and logical reasoning. Moreover, the test will also include a subjective portion in which you will have to write an essay on a randomly selected topic.
Go and Attend the Law College
Once you pass your Lawsuit Admission Test (LSAT) you will be admitted to a law college depending on your merit and preference. In law school, you will have to obtain a law degree. Many law schools offer specializations in law related to patents, copyrights, trademarks, and intellectual property. Many schools of law in the USA offer full-time degree and part-time( evening) programs. If you wish to induct yourself into a full-time program, it will take up to 3 years, whereas as a student in an evening program it will normally take 4 to 5 years.
Pass the Bar Exams of the State
Once you complete your degree in law from a law college, you will have to pass the bar exams of the relevant state to obtain the license of a lawyer. The bar exams vary from state to state. In some states, you will have to appear in one exam only while in others you have to pass multiple exams. Though the National Conference of Bar Exams (NCBE) has provided some components which all states must comply with, the exams vary a lot from state to state. In these exams, you will have to solve multiple-choice questions (MCQs) on different areas of law and the conduct of lawyers. Moreover, just like Lawsuit Admission Test (LSAT), you will have a subjective portion of the exams in which you will have to write essays and situation-based questions.
Register with US Patent and Trademark Office
Once you have passed the bar exams of the state, you are qualified to be an attorney. However, people who want to be patents lawyers will have to register themselves with US Patent and Trademark Office.
To do so, you have to pass multiple choice-based exams, which are known as patent bar exams. First of all, you will send your documents to US Patent and Trademark Office (USPTO). If approved, they will call you for exams, and after passing the exams, you will get yourself registered to US Patent and Trademark Office (USPTO) and can practice patent law.
Though you are qualified enough to practice patent law after completing the previous step, you can also do specialization in it. Some patents lawyers who want to expand their expertise in the field of patents, trademarks, and intellectual property do LLM in the respective field. This not only gives them more knowledge but also helps them to increase their client base both quantitatively and qualitatively.
Life of Successful Patents Lawyers
To be successful in any field, merely earning a degree in a relevant field is not enough and patent lawyers are no exception. You need to develop certain skills and capabilities to become a successful patent lawyer. Here we are going to discuss the life of successful patents lawyers.
We have already discussed the qualifications required by the patent’s lawyers. After doing a degree in science or a relevant field, you have to pass the Lawsuit Admission Test to qualify yourself for a law college. In law college, you will earn a law degree and then pass the state bar exams. After that, you register yourself to US Patent and Trademark Office (USPTO). After that, if you wish to do specialization, you get yourself admitted to LLM in a law college.
Salary and Costs
Just like any other field and lawyer, the salaries of patents lawyers vary from lawyer to lawyer. The patents lawyers with experience of 5 to 10 years will charge more than the patents lawyers with no prior experience. Moreover, the salaries also vary state to state and city to city.
A lawyer sitting in the middle of a metropolitan city such as New York will charge more than the patents lawyers in midwestern states despite maybe having more experience. However, according to official stats, the salaries of successful patent lawyers range from 187,102 USD per year to 233,444 USD per year. And the average salary of successful patents lawyers is 206,836 USD per year.
These salaries are much more than most of the fields in general and even in other law fields in particular. So having a career as a patent lawyer provide huge opportunities and the demand is increasing with time.
Skills and Capabilities
As we discussed earlier, to be successful in any field, you to possess certain skills and capabilities. The foremost capability that successful patents lawyers possess is adaptability. Because the scope of patent law is radically expanded with time, and now it covers a huge variety of subjects.
Moreover, with technological advancements, the scope of patent law is even increasing, and it requires the patents lawyers to have the capability of adaptability. In addition to that, patents lawyers must have a good knowledge of science. That’s why it is recommended to potential patents lawyers to have a bachelor’s degree in science or engineering.
The knowledge of science in the official credentials is also required by the US Patent and Trademark Office to register you as a patent lawyer. Moreover, strong interpersonal and communication skills are also possessed by successful patents lawyers.
Qualities to Look For in Patents Lawyers
Looking for a competent lawyer is a difficult task to perform, especially today when there is a whole bunch of lawyers available out there. If you have an invention for which you wish to obtain a patent and want to hire an attorney to do so, these are the following qualities and skills you must look for in them.
You must look for patents lawyers who can spare enough time with you to understand your case. The availably is a big issue people face while dealing with their attorneys because a single attorney may be dealing with dozens of cases a the same time. As we know, the patent law is a comparatively technical one, so it requires a deep study of the case.
Before hiring the patent’s lawyers, you must first look at their profile. If the profile shows that these patent lawyers have dealt with cases related to trademarks, copyrights, patents, and intellectual property, then you can rely on them. Moreover, they must have won such cases because dealing with patent cases is one thing and being successful in it is another.
Before hiring the patent’s lawyers, you must first look at their ratings. For that, you can go and see their profile on LinkedIn and other social media platforms such as Google and Facebook. In other words, you need to evaluate the reputation of the patent’s lawyers before hiring them. You can also consult your friends and family for this purpose.
Last but not least, you must have a look at the expertise of the patents lawyers before hiring them. If a lawyer has specialization in the fields of trademarks, intellectual property, or patent law, you must prefer him/her over someone who does not hold such specialization. Moreover, some patent lawyers earn expertise in a specific field by practicing it over some time. The patents lawyers with such experience and expertise must be preferred by you over the others. Some patent lawyers also have expertise in some specific patent laws, such as utility patent law.
You will find many patent lawyers however very limited of these have won any awards for their law firm. Many different awards are passed down to a law firm by an authorized awarding body which displays recognition and stellar achievement of the firm. Awards are a great way to judge which lawyer and their firm stand out and getting the best lawyer to help you apply for the patent has more chances of success than those lawyers that don’t have any awards.