Copyright protects the expression, while patents protect both the expression and the underlying idea. For innovative intellectual property that required up-front capital expenditures and may have a long sales cycles, (e.g. durable goods in established industries), the patent is ideal. Years of sales may be necessary to realize the return from the initial reduction to practice investment. The patent provides a 20-year guaranteed monopoly over the idea and its sale.
What can be patented? The “smell test” used on the intellectual property that is applying for patent is that it is useful, novel, and non-obvious. The IP could be a composition of matter, a machine or a transformative process. Certain things cannot be patented, including: scientific principles, mathematic formulas, methods of doing business, and natural processes and compositions. Processes may be patented if they meet the “machine-or-transformation” test (that is, the process requires a mechanism or substantially transforms matter). Even here, if the process does not require specialized machinery or directly transform matter, it still may be patentable. The “smell test” and “machine-or-transformation” tests are two of many tests that the UPSTO uses when deciding on the patentability of an idea.
Once filed and granted, the patent becomes publically accessible on the UPSTO and other websites. The concern becomes, of course, infringement of the organization’s patent property. The infringement can be literal infringement: someone copies the property in its entirety and exactly. An infringement can be substantially the same as the original machine and produce substantially the same results. Under the “doctrine of equivalents”, the organization could push forward with an infringement suit to stop the opposing firm from selling the similar machine. The organization’s patented IP is also protected from other firms reproducing the core design and providing basic improvements. Should a product be found to infringe on the organization’s patents in any of these ways, an injunction can be filed to stop production and protect the organization’s market share and sales.Posted by