The federal patent system allows a patent to issue for inventions that are useful, novel and non-obvious. A patent allows the inventor to exclude others from using, making and selling the invention for a limited time in exchange for full disclosure of the invention. Any state statute that purports to give an inventor extended protection for his or her invention runs counter to the federal patent policy and would likely be held invalid. Delaware has no statute that undertakes to govern patentable inventions.
State law applies in a patent context when the licensing of a patent is involved.
In Delaware, fundamental rules of contract construction apply equally to the construction of patent licenses. In granting a license, the patentee can retain any of the rights to make, sell and use the invention, while conveying others. The Delaware Trademark Act, derived from the Model State Trademark Act, generally provides that any person who adopts and uses a distinctive trademark or service mark in Delaware may register the mark with the Delaware Secretary of State and obtain legal protection of that mark. Registration of a mark may be limited by the pre-existing rights of another. The Delaware Trademark Act applies to any mark not immoral, deceptive, scandalous, disparaging, containing the flag or coat of arms or other insignia of a municipality, state, or nation, containing the name, signature or portrait of any person without his or her consent, primarily geographically descriptive, primarily merely a surname, or resembling a mark previously registered or used.