United States patent law

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The United States is considered to have the most favorable legal regime for inventors and patent owners in the world.^[1] Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others, for a limited time (usually, 20 years) from profiting from a patented technology without the consent of the patent holder. Specifically, it is the right to exclude others from: making, using, selling, offering for sale, importing, inducing others to infringe, applying for an FDA approval, and/or offering a product specially adapted for practice of the patent.^[2]

United States patent law is codified in Title 35 of the United States Code, and authorized by the U.S. Constitution, in Article One, section 8, clause 8, which states:

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;

Although this statement is superficially similar to intellectual property clauses in the constitutions of other countries, the US patent system has several peculiarities.

Firstly, this clause is interpreted as giving the primary IP rights only to individuals (i.e. "inventors") rather than to organizations (see Stanford University v. Roche Molecular Systems, Inc.),

Secondly, until 16 March 2013 the US gave priority to first inventors to invent, although the US adopted first inventor to file system since (see First to file and first to invent).

Thirdly, the US has provisional patent applications, which can be filed one year before filing regular patent application, thus delaying the start on the nominal 20 year patent term by one year.

Fourthly, unlike most other countries, the US allows extension of patent monopoly beyond 20 years from the filing date via patent term adjustment^[3] due to the patent prosecution delays by the USPTO or due to product approval delays by Food and Drug Administration.

Fifthly, the US does not have utility models.

Sixthly, there is no criminal liability for patent infringement in the US, only civil liability.

Seventhly, although lawsuits for declaratory judgement are prohibited in the USA in general, they are allowed in cases of potential patent infringement.^[4][5]

Eighthly, research exemption and fair use is allowed for using patented product or process for research and educational purposes, albeit their scopes have seen reductions in recent years.^[6]

Ninthly, the large size of the US economy, the strong pro-patentee legal regime and over 200 years of case law make US patents more valuable and more litigated, than patents of any other country.

The ninth advantage gave rise to the system abuse by patent trolls, which are largely absent in other countries.