Frequently Asked IP Questions
What is intellectual property? Who should own it?
IP is (currently) a social and economic construct designed to maximize profit for capitalists. (Its precise nature changes shifts in technologies, economies, etc.) Whether or not something is considered a “valid” (legal) form of IP depends on whether or not one can extract surplus value from it in a capitalist exchange. (There’s no *intrinsic* value in IP; it has to be created and sustained continuously.) Corporations, for example, typically exercise much greater IP rights than factory workers or housekeepers. Consider the relatively recent–and still rare, I think–case of students’ rights to their own work. The question of “should” is difficult, because entering into an economic relationship–by agreeing to call it “property”–constructs a relationship that is easily absorbed by late capitalist interests. Although capitalists frequently portray IP law as protecting the individual “investments” (of effort, time, money) of specific inventors, in most cases IP is owned by corporations. I think it would be interesting to play out IP as an individual possession (one that cannot be sold, which is where IP law started–the right was not transferable). Would corporations collapse if they could not purchase IP (patents and copyrights) on an open market (and could only exercise rights owned by individual employees, or only non-exclusive rights)?
In the United States, there are three kinds of patents — utility, design, and plant patents. A patent permits its owner to exclude members of the public from making, using, or selling the claimed invention. Most countries around the world have patent systems, although patent terms and types vary.
In the United States, the term of a utility patent depends on when the patent application was filed. If the patent is issued from an application filed before June 8, 1995, the term is the later of (1) 17 years from the date of issuance of the patent, or (2) 20 years from the first U.S. filing date for the patent. If the patent is issued from an application filed on or after June 8, 1995, then the term is 20 years from the first U.S. filing date for the patent.
This complicated rule for the term of a utility patent is the result of the transition from the old term (17 years after issuance) to the uniform term prescribed by GATT (20 years after filing). It applies to all patents still in force on June 8, 1995. (If the details of this situation are important to you, we suggest that you seek the advice of competent counsel.)
Design patents in the United States have a term of 14 years, while plant patents have a term of 17 years.
A common misconception is that the patent gives its owner the right to make, use, or sell the invention. It only gives the owner the ability to exclude others from making, using or selling the invention. The patent owner may be forbidden from using the invention, usually due to the existence of another patent, or sometimes due to other legal restrictions.
What is a Patent?
A patent is a contract created by statute between the federal government and the inventor
The inventor agrees to make his discovery known to the public
Government agrees to grant the inventor an exclusive right to his discovery for 20 years from the date of filing
What is Exclusive Right?
A Negative Right
Right to exclude others from making, using, offering for sale, or selling the invention
Not an Affirmative Right
not a right to make, use, offer for sale, or sell the invention
What is the patentable subject matter?
Any new and useful:
– Process
– Machine
– Manufacture (article)
– Composition of matter
– Useful improvement thereof
Requirements for a Patent (Patentability)
– New (novelty)
– Non-obvious
– Useful (utility)