June 25, 2021
Note: Blog post subject matter is discussed in more detail on the Athalonz Podcast.
When a company claims to have patented technology, they are doing so to let the world know that they have a technological advantage that no one else has and that no one else can without infringing its patents. Yet, when a company makes such a claim, how do you know if they really have patents that provides some technological benefit?
This is a tricky question to answer, even for someone like me. I have been practicing patent law for over thirty years. I am probably the only person in the country to be an inventor on more than 325 issued patents, to have drafted more than 3,000 patents, and to have generated billions of dollars of value via patent protected technology. So, I have a lot of experience with patents and the value of patents.
To begin to answer the above question, let’s first start with what a patent is and the various types of patents. A patent is a government granted limited time monopoly granted to the patent owner to exclude others from making, using, selling, offering for sale, and importing products or services that embodying the claimed subject matter. The duration of the monopoly and the nature of the claimed subject matter depend on the type of patent.
In the US, there are three types of patents: a utility patent, a design patent, and a plant patent. We’ll skip over plant patents and focus on utility patents and design patents. A design patent has a term of 15 years from the date of issuance and is for the ornamental appearance of an article (e.g., the appearance of a shoe or a portion of shoe). A utility patent has a term of 20 years from the date of filing and is for invention that is regarding how something works and/or how it is used (e.g., shifting ground reaction force within a shoe).
The right to exclude others is not granted to the patent holder until the patent is issued. Only after the patent issues, can one claim to have patented technology. If a patent is still pending in the Patent Office (i.e., has not yet issued), the patent holder can state that it has “patent pending” technology, but it's a misrepresentation to say they have patented technology if all they have is a pending patent application.
Ok, let’s answer the question: how do you know if a company really has patents that provide some technological benefit? The easiest way to tell is that the company will list them on their website. For example, Athalonz lists its patents on its website at Athalonz.com under the “About” tab. Listing patents in this manner is legally known as providing constructive notice, which means that it puts the public on notice that Athalonz shoes are covered by patents and these are the patents.
If a company claims to have patented technology but does not list the patent numbers, it could be for several reasons.
If a company does not list their patents and you suspect it’s because they are naive, you can go to the United States Patent and Trademark Office website regarding assignment of patents to a company. Here is the link:
Once on the page, select “assignee name” under the “look up by” dropdown window, enter the name of the company in the “enter name or number” window, and then hit the search icon. The search will list the patents and patent applications assigned to the company (i.e., the company owns the patents and patent applications). If this comes back with a null set, or only pending patent applications, then the company is misrepresenting that they have patented technology.
If the search comes back with only design patents, which you’ll be able to tell because the patent number begins with a capital “D”, then the company is trying to pass off design patents as utility patents. Recall that, by law, a design patent is for the ornamental appearance of an article (e.g., a shoe) and not for any functional feature of the shoe that aids in athletic performance. As such, implying that a design patent provides a function is lying about having patented technology.
In my opinion, if the reason for not listing their patents is reason 1, 2, 3, or 4, the company is engaged in deceptive marketing practices. They are asserting that they have a technology advantage that no one else has and they are further asserting that no one else can without infringing the patents to gain an undeserved competitive advantage. I encourage you to check out a company’s claim of patented technology as discussed above to see if they are being honest about their technology.
I am the CEO and Founder of Athalonz, LLC., I am a founding partner of the patent boutique law firm of Garlick & Markison, I am a survivor of child abuse, and I am an inventor on over 300 patents.
Athalonz is a technology company based on Mesa, AZ. It develops and sells athletic footwear, which incorporates its patented technology that leverages the laws of physics to improve athletic performance. Website: athalonz.com
Garlick & Markison is a patent law boutique firm that assists clients in building a patent business within their business using proprietary tools and techniques. Website: texaspatents.com
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