Patent Law: What It Is and How It Works
In the United States, the concept of patent law is almost as old as the country itself. The U.S. Constitution, in Article I, Section 8, Clause 8, provides that, “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.”
As Kevin J. Hickey writes in Patent Law: A Handbook for Congress, before becoming president, Abraham Lincoln said the patent system "added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."
When Edwin H. Land, the founder of Polaroid and inventor of the instant camera, sued Kodak for patent infringement, he said, "[T]he only thing that keeps us alive is our brilliance. The only way to protect our brilliance is our patents."
In the U.S., patents have been protecting American genius since 1790, when the U.S. Patent and Trademark Office (USPTO) granted three patents. The number of patents issued has grown massively since then, with the USPTO granting over 300,000 patents in 2024.
What Is a Patent?
A patent is a legal document, issued by the U.S. government, which gives the owner — for a limited time — the sole right to use or sell whatever invention is covered by the patent.
What Is Patent Law?
Patent law is a specialized realm of intellectual property (IP) law that focuses on protecting inventors’ rights to their inventions. Patent law attorneys specialize in intellectual property law and assist clients by, among other things, helping with the patent application process and bringing or defending against patent infringement litigation.
>> Learn about IP and employee rights
Who Grants Patents in the United States?
The U.S. Patent and Trademark Office (USPTO) is the federal agency responsible for reviewing, granting, and registering patents. When you file a patent application, your application includes detailed information about your invention, and the application is public, which means the world can read about your invention.
This information sharing is essential so that everyone knows precisely what invention is being protected once your patent is granted. As Hickey explains, because applying for a patent involves the inventor sharing their invention with the world, patents “represent a ‘quid pro quo’: in return for the inventor's public disclosure, the inventor receives … time-limited exclusive rights” to use or sell their invention.
Rights Granted to Patent Owners
Patents confer a number of rights on their owner, including:
Property rights: Patents "have the attributes of personal property” — which means they can be sold, transferred, assigned, licensed, mortgaged, and left to one’s heirs — the same as any other type of personal property.
Negative rights, not positive ones: A patent confers on its owner only the right to exclude others (for a limited time) from using the invention — i.e., a negative right. For example, if you have a patent on a particular type of product, the patent doesn’t automatically give you the right to manufacture and sell the product; you must still get permits, licenses, and other permissions necessary for the manufacturing and sales process. Nor does it require others to use your invention; they may use another similar invention if they choose.
Temporally limited rights: Patents give you exclusive rights to use or sell your invention for a limited time. According to the USPTO, the exclusivity for patents is 15–20 years, depending on the type of patent issued. This period can be extended or adjusted in certain circumstances. The date the exclusivity period starts depends on the type of patent. Exclusivity means that for the length of the patent, the patent owner has a monopoly over the use and sale of the invention, which can provide a company with a significant competitive advantage.
Protection against infringement: Under the U.S. Patent Act, patent infringement occurs when someone “without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent.” If this occurs, the patent holder may sue the infringer in U.S. federal court for an injunction (a court order requiring the infringer to stop infringing) and monetary damages. Notably, the U.S. government is allowed to use any patented invention without authorization. However, the patent owner may sue for compensation in the U.S. Court of Federal Claims.
What Laws and Agencies Govern Patents in the United States?
A number of U.S. laws and agencies govern patents, including:
The U.S. Constitution provides Congress the right to protect inventors by giving them limited rights over their inventions.
The Patent Act of 1952 sets out the requirements for patentability of an invention and the method of applying for and enforcing patents.
The USPTO examines, issues, and registers patents. The agency does not have the authority to resolve patent disputes.
The Leahy–Smith America Invents Act (or AIA), which was passed in 2011 as patent reform legislation, changed federal patent law from a first-to-invent system to a first-to-file system, essentially creating a race to the USPTO.
U.S. federal courts have primary jurisdiction over disputes regarding patent rights and infringement, with the U.S. Court of Appeals for the Federal Circuit (CAFC) serving to review decisions of the federal courts on patent cases.
The Patent Trial and Appeal Board (PTAB) reviews patent application issues.
The International Trade Commission (ITC) governs patent infringement involving goods imported into the U.S.
Types of Patent Applications and Types of Patents
The USPTO provides for two types of patent applications and three types of patents.
Types of Patent Applications
Patent applications can be either provisional or nonprovisional.
A provisional application (which is permitted for utility and plant patents but not for design patents) is a less formal, less complete, and less costly version of a regular (or nonprovisional) application. A provisional application serves as a placeholder to show an inventor was first to file while they work on completing a more detailed application. After filing a provisional application, the inventor has 12 months to file a nonprovisional one.
A nonprovisional application involves more requirements and higher fees than a provisional application and can result in an issued patent.
Types of Patents
The USPTO issues three types of patents.
Utility patents protect inventions of new and useful processes, machines, “articles of manufacture” (e.g., textile fabric or an article of furniture), composition of matter (i.e., chemicals), or improvements to such processes.
Design patents protect inventions of “new, original, and ornamental designs” for an article of manufacture.
Plant patents protect inventions and discoveries of asexual reproductions of a “distinct and new variety of plant.”
What’s Patentable — and What’s Not
Not everything can be patented.
Can Be Patented
Over time, courts have interpreted the Patent Act to establish that only the following are patentable:
A process
A machine (usually implies moving parts)
An article of manufacture
A composition of matter (chemicals, materials)
Improvements to any of the above (usually implies no moving parts — for example, textile fabric or a chair)
Requirements for Patentability
As the USPTO explains, an invention that falls into one of the five categories above must also meet four requirements:
Able to be used (the invention must work and cannot just be a theory)
A clear description of how to make and use the invention
New or novel (something not done before)
Not obvious (as related to a change to something already invented)
Cannot Be Patented
As explained in the Handbook for Congress, patent law restricts the following from being patented:
Laws of nature
Physical phenomena
Abstract ideas
Ideas or suggestions
Inventions exclusively related to nuclear material or atomic energy in an atomic weapon
Patent Law: An Exciting Area for Future Lawyers
Given the competitive advantage that patent rights can give a company, being first to file a patent application is critical, as are the results of patent infringement suits. Patent law attorneys can provide significant value to inventors and companies.
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