Can Someone Steal Your Patent?

Rich Goldstein

Founder & Principal Patent Attorney
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An inventor’s mind is always full of ideas and innovative thoughts. While ideas are safe in the mind, possible concerns start to arise when they are shared with others. As an inventor, I have always kept my ideas close to my chest with the fear of someone stealing and patenting it for themselves. You probably have the same worries if you’re looking to patent something.

If you decide to take your invention to the next level and patent it, you may wonder, “can someone steal my patent?” After all, the last thing you want is to see unauthorized copies of your idea start to spread. 

Today, I am here to settle the debate on whether patents can be stolen or not. Below, I am going to discuss why patents are usually safe, as well as the options available to you if someone tried to steal your patent. 

Can Someone Steal Your Patent? 

While patents provide protection, a patent can be stolen. Although very rare, competitors may attempt to copy or challenge your patent. Nevertheless, swift action and legal support can safeguard an invention.

Factors That May Not Guarantee Protection Against Idea Theft Despite Having a Patent

In the intellectual property game, patenting something does not mean it is entirely safe and can not be stolen.

Whilst I fully recommend hiring a patent attorney to help you obtain a patent application, the patent itself may not always be foolproof enough in preventing others from attempting to steal your idea and even mass-producing it. 

Here are some reasons why:

  • Lack of Enforcement – Enforcing a patent can be costly and time-consuming. Small inventors or startups may lack the resources to pursue legal action against infringers effectively.
  • Infringement Challenges – Determining patent violations can be complex, requiring substantial evidence and legal expertise, which might be challenging to establish.
  • Patent Scope Limitations – A Patent has specific claims that define their scope. Competitors might find ways to work around these claims and develop similar products without infringing.
  • International Protection – Patents are jurisdiction-specific, providing protection only in the country where they are granted. Overseas, your idea could be vulnerable to theft.
  • Patent Expiration – A patent has a limited duration (typically 20 years), after which the protected idea enters the public domain, allowing others to use it freely.
  • Reverse Engineering – Some products can be reverse-engineered, allowing competitors to analyze and recreate the technology without violating the patent.

When working with a patent attorney, they can help file a patent application and guide you through the entire process. However, during the patent application, you must remain vigilant and consider employing additional strategies like confidentiality agreements, trade secret protections, and continuous innovation to safeguard your own invention effectively.

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How Long Patents Last 

A utility patent grants protection for 20 years, whereas a design patent safeguards an idea for 14 years. By enforcing an active patent, you can take legal action against any infringement.

Non-Patentable Subject Matters: What Can Not Be Protected by a Patent?

According to the WIPO (World Intellectual Protection Organization), “scientific theories, aesthetic creations, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods, methods for medical treatment (as opposed to medical products) or computer programs,” are not eligible for patent protection. You can discuss whether your idea is patentable with a patent attorney before applying for protection.

Patent Rights

Before Patent Application 

Inventors have no patent rights before filing a patent application. Therefore, if an idea/invention is shared around before the application has been sent off, it can be stolen without any consequences. 

Patent-Pending Status

Once the patent application has been submitted, rights are given to inventors. At this point, products can be placed with a “patent-pending” notice, warning potential infringers that legal action will be taken against anyone who attempts to steal the idea once the patent is issued.

Approved Patent

When a patent is on file, the patent owner has the most rights. This means that the idea can not be used or stolen without the inventor’s consent. For however long the patent lasts, these rights will be in force (typically 14 to 20 years).

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Expired Patents 

Those exclusive rights end when a patent expires. Consequently, companies or individuals can no longer be sued for using or selling a product without consent. The only exception is if this violation takes place when the patent is still active. 

Dealing With Product Infringement Despite Having Patent Protection: Steps to Take 

There are a few options available to you if someone tries to steal your product while it is patent protected.

Initiate a Derivation Proceeding

If the patent application’s earliest priority date falls after March 16, 2013, you can institute a derivation (theft) proceeding. During a derivation proceeding, a trial is held by the USPTO, where they try to determine if the infringer stole any details of the invention from the inventor. 

First, a patent application for the invention in question needs to be submitted to prepare for the proceeding. After completing these steps, and within one year from the publication of the unauthorized patent as issued or pre-grant, the inventor may file a petition with the USPTO to initiate a derivation proceeding.

All backing documents need to be produced by a third party or communicated to another individual. This is why detailed records of invention processes are crucial.

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Initiate an Interference Proceeding

If the patent application’s earliest priority date predates March 16, 2013, another option is to begin an interference proceeding

An interference proceeding is similar to a derivation proceeding. However, it has some distinctions. Unlike derivation, the petition submission isn’t limited to one year from the illegitimate patent’s publication. Instead, you can initiate an interference petition against either an issued patent within one year of issuance or a pending patent application.

Determining Patent Infringement: The Process Explained 

All patents contain unique aspects to make it distinct from anything else. In order to sue an individual or company for infringing patent rights, evidence must be shown to prove one of these aspects or elements in the patent have been stolen.

Altogether, there are two infringement cases:

  • Literal Infringement – This occurs when an accused invention contains all the identical elements as the initial patent, essentially making it an exact replica.
  • Doctrine of Equivalents – This occurs when an accused invention shares some of the same elements as the original patent or operates in a highly similar manner.

Patent Infringement Legal Action

Whilst a product’s status is still “Patent Pending”, it is not possible to sue for patent infringement. When a patent is issued, however, legal action can be taken for any damages that began on the date the patent application was submitted to the USPTO.

I must note that the USPTO only reviews patent applications before approving or denying them. It is not an enforcement agency. Subsequently, to sue someone for patent abuse, a lawsuit will need to be filed. It is recommended you consult with patent attorneys to be in with the best chance of winning the lawsuit.  

Related Questions

What Is It Called When Someone Steals Your Patent?

If somebody steals a patent, it is known as Intellectual Property Theft. This typically occurs when an individual or company unlawfully takes an idea, creative expression, or invention. It encompasses the theft of:

  • Patents
  • Trademarks
  • Copyrights
  • Trade secrets (valuable assets such as logos, names, inventions, symbols, client lists etc.) 

Can the Government Steal Your Patent?

In most countries, including the US, the government can’t directly steal a patent. Patents grant inventors exclusive rights for a limited time. However, the government can take action in specific situations, like eminent domain for public use, with compensation to the patent holder. Suing the government for compensation is possible for “recovery of [your] reasonable and entire compensation for such use and manufacture.”

How Do I Protect My Patent?

To protect your patent, follow these steps:

Finally, consider international protection. If your invention has international market potential, consider filing for patents in other countries or using international treaties like the Patent Cooperation Treaty (PCT) to seek protection in multiple countries.

Conclusion 

A patent can be stolen by an individual or corporation, but this is very rare. When a product is “Patent Pending,” legal action can not be taken against anyone who may have infringed upon the patent rights. However, once a patent has been issued, you can sue someone for stealing the patent. 

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