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Top 5: Patent Myths

By Catherine Zielinski


This week we delve into common misconceptions about the patent world. To outsiders and insiders alike, the regulations and fine lines can often blur together. Our Top 5 Patent Myths will clarify 5 common misconceptions we frequently hear from friends, and researchers alike, including patent illustrations, international patent rights, and invention protection.

Patent Myth 1: Patents granted in one country are enforced worldwide

International PatentThe authority and rights of patents do not automatically apply in every country around the world.  Thus, if an inventor wishes to protect his or her patent internationally, a patent must be filed in every single country where the inventor wishes to protect an invention.  This process is usually carried out through an International Patent Application.  If this is not completed, the technology is then unpatented in other countries, providing others the right to produce, operate, and sell the invention.


However, foreign goods manufactured that infringe upon a patent cannot be imported into the country – and customs and trade offices often support this for added measure.  If a company is importing foreign products to the country where the patent is held, the inventor can sue both the importer and the seller. Under the Patent Cooperation Treaty (PCT), applications can be submitted within the 142 countries covered by the treaty.  This allows the patent to exist as an enforceable document in the countries of application.  As previously mentioned, the responsibility of enforcement remains on the patent holder regardless of the country of origin.  Refer to the USPTO’s Office of the Administrator for Policy and External Affairs for more information on patent filings and the international community.


Patent Myth 2: Illustrations that accompany a patent are protected


Patent protection lies only within the precise language found in the patent claim section. Drawings and other art solely provide visual demonstrations of a patent’s visage and use. The written claims may cover more or less than the accompanying illustrations, and it is therefore incredibly important to define
intricate and exact claims for any patent.  In addition, illustrations, graphic art, and decals accompanying patent applications may claim copyright protection.

Coca Cola Patent

In the case of specific designs, design patents may be granted.  Design patents protect the “ornamental design of a functional item” for 14 years. An example of a famous design patent is the Coca-Cola bottle shape, which was granted a design patent to protect the distinctive look of the soft drink as a functional item.


Patent Myth 3: Provisional patents


Provisional patents do not exist. Rather, a Provisional Application for Patent, which is often confused as a “provisional patent,” is a legal document filed with the USPTO that ascertains an early filing date and is not subject to some of the formal requirements necessary for a regular patent application. Moreover, it only develops into an issued patent when the applicant files a regular patent application within one year. A provisional application is not meant to provide any enforceable rights, which is often frightening for inventors. This application is not reviewed by the USPTO and becomes invalid 12 months after filing.


However, a provisional patent application can serve as a preliminary step that provides one additional year of security. This extra time may be beneficial as it provides an opportunity to test market an invention or further fine-tune certain aspects of the product. Additional benefits include ease of preparation, which is important in a time crunch, and the use of the “patent pending” term, which comes with considerable marketing advantages.  Inc. Magazine published a great article, entitled “Be Careful with Provisional Patent Applications”, where they clarify provisional patents, warning of their dangers and explaining the available advantages.


Patent Myth 4: Once the USPTO approves a patent application, they will protect the invention.


To be short and sweet, the patent office does not enforce patent rights.  Patent protection is the responsibility of the patent holder. If someone infringes upon a particular patent, it is the holder’s sole responsibility to bring legal action against the other party.  The patent office approval of the original patent can then be used to support the lawsuit.


Patent Myth 5: The Patent Cliff


Last year, Xconomy’s Stewart Lyman provided a great article explaining and debunking the myth of a “patent cliff.” As the newest patent buzzword in biopharmaceuticals, the patent cliff is defined as the point in time when the patents of various brand name drugs expire. This the opportunity for generic drugs to replace the brand names, resulting in a lot of money lost in the industry through decreased drug prices.


The patent cliff can refer to a single year or to a period of up to five years.  In his article, Lyman shows how, on a five-year basis, a patent cliff does not exist: it’s rather a patent plateau. As quoted by Lyman, “a graph illustrating drug industry revenues at risk due to patent expirations from 2001-2015 resembles the Rocky Mountains, with lots of ups and downs, but no cliff.” 


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