Patent Law and the U.S. Constitution

• Patent law is much older than many might imagine. The right for people to protect their patented inventions, as well as to hold copyrights, has its roots in the Constitution of the United States, which granted Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first federal patent law was passed by Congress in 1790 and underwent a general revision that went into effect in 1953. In 1999, the American Inventors Protection Act further revised patent laws. Currently, Title 35 of the United States Code governs all aspects of patenting. These laws are generally referred to as the "Patent Act."
  
  

Patents Versus Copyrights

• Federal law approaches patent rights quite differently than it does rights granted to copyright holders. Copyright law grants authors of creative expression very specific "exclusive" rights, which are outlined in Title 17 of the U.S. Code: the right to make copies of their work and sell it to the public, the right to perform or display their work, and the right to transfer or lease their work, to name only a few. However, patent law is nonspecific when it comes to inventor's rights---it does not authorize a patent holder to make, sell or use an invention. However, patent holders and their inventions are given even stronger protection through the "right of exclusion" set forth in federal patent law.
  
  

Patents and the Right of Exclusion

• The right of exclusion granted to patent holders is quite powerful in that it prohibits other inventors from making, using and selling an invention that is essentially the same as the original invention---and even prohibits an infringing invention from being exported to other countries other than the U.S. Copyright law protects works of creative expression that are authored independently, no matter how similar they may be. However, patent law does not afford an inventor the same protection, even if the tool, device, chemical composition or process is developed without knowledge of an invention using the same art. The right of exclusion gives inventors an edge once their invention hits the consumer marketplace, particular in the area of pharmaceuticals, in which a patent can endure for at least 20 years before falling into the public domain.
  
  

Patent Infringement and the Doctrine of Equivalents

• Patent law provides remedies for direct infringement of a patent if the infringing patent is identical and performs the same function as the original. However, when determining if infringement took place, a federal court will also apply the "doctrine of equivalents." This precludes another inventor from making, using or selling an invention that deviates from an existing invention in minute ways, such as the substitution of one ingredient or a slight variation of a process. Therefore, a patented invention that is extremely desirable in the consumer market, such as a brand-name drug that offers a treatment or cure to a health disorder, boosts the patent holder's financial success by eliminating all other competition.
  
  

Other Patent Rights

• Like copyrights, patent holders have the right to transfer their patents to other individuals, such as through a will. However, an inventor can also license his patent to another party, either to make it or to market and sell it. The right to license a patent accommodates the interests of independent inventors who lack the capital and business savvy to make and sell their marketable idea.