What is a Patent?

Intellectual property can be legally protected by a patent, copyright, trademark, or trade secret. IP includes inventions, ideas, information, artistic creations, music, branding, industrial processes, and databases.

The founding fathers granted congress the right to create patent law in the Constitution because they recognized a fundamental fact about IP: knowledge is easily appropriable. Once an idea or creation is made public, anyone can to copy it. They also recognized that creating IP often involves significant investment, and therefore, if others are free to copy any idea that is made public, the incentive to create is dramatically diminished. We want people to invent, to create, and to push and expand the world of knowledge. This is underscored by the wording of the “Patent Clause.”

US Constitution. Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution. [The Congress shall have 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.”

Congress has therefore granted inventors the right to exclude others from appropriating their ideas for a limited term of 20 years. Specifically, inventors can exclude others from making, using, selling, offering to sell, or importing anything that they have patented.

As mentioned, patents are just one of the legal methods of protecting IP, but each legal method (patent, copyright, trademark, trade secret) applies to a different and specific type of IP. Patents apply to useful ideas- machines, processes, compounds, plants, ornamental designs, and other useful devices. In contrast, copyright cannot be used to protect anything inherently useful, and trademark is used to protect brand identity. Trade secrecy can be used to protect some of the subject matter that would be patentable and can offer strong protection, but is very situation dependent and is ultimately a much smaller area of law.

For those that have invented a new idea, a patent is a critical component to commercialization.