Suits for infringement of patents follow the rules of procedure of the Federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims. The Government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the Government.
The Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.
Patent Marking and “Patent Pending”
A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word “Patent” and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.
Design Patents
The patent laws provide for the granting of design patents to any person who has invented any new, original and ornamental design for an article of manufacture. The design patent protects only the appearance of an article, and not its structure or utilitarian features. The proceedings relating to granting of design patents are the same as those relating to other patents with a few differences.
See current fee schedule for the filing fee for a design application. A design patent has a term of 14 years from grant, and no fees are necessary to maintain a design patent in force. If on examination it is determined that an applicant is entitled to a design patent under the law, a notice of allowance will be sent to the applicant or applicant’s attorney, or agent, calling for the payment of an issue fee.
The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are required.
The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form.