Learn what a patent is, how to get a patent and how patents protect your intellectual property rights in inventions and ideas.
In simple terms, a patent is a type of intellectual property granted to an inventor to help protect their invention from being made or sold by competitors.
Under U. S. patent law, a patent doesn’t give an inventor the right to make or sell an invention. Instead, it grants the inventor the right to exclude others from “making, using, offering for sale, or selling the invention” in the United States. It also gives the inventor the right to prevent others from importing the invention into the country that issued the patent.
Thus, a patent owner has the exclusive right to control who creates, sells and benefits from the invention during the life of the patent in the country or countries in which they have obtained a patent.
In the United States, the agency responsible for issuing patents is the Patent and Trademark Office (USPTO).
Abstract ideas generally cannot be patented. To patent an idea, you must describe the idea in enough detail to show that the invention can be created, can work and will be useful.
To get a patent in the U. S., you have to prepare and file an application with the United States Patent and Trademark Office (USPTO). Patents are territorial and are granted by individual countries. If you want to protect your invention elsewhere, you need apply for a patent in each country in which you want protection.
Almost any invention can be patented if it falls into one of these categories:
And is also:
Those terms — new, useful, and non-obvious — have very specific and consequential meanings in patent law. (See below.)
Things that can’t be patented include laws of nature, natural phenomena, and abstract ideas.
There are three types of patents: utility patents, design patents and plant patents.
Utility patents are the most common. They general cover the way something functions. They are granted for new, useful, and non-obvious inventions that fall into these broad categories:
Design patents are for a new, original, and ornamental design for an article of manufacture. They apply to how something looks, rather than how it works.
Plant patents for the creation of new and distinct varieties of plants. To qualify for a plant patent, the plant must have been asexually reproduced.
Patent law doesn’t really define the word, new. Instead, it states what disqualifies an invention as new and makes it unpatentable.
In the U. S., an invention can’t be patented if any of these circumstances apply before the date you file for a patent:
The phrase “otherwise made available to the public” covers a lot of territory including things like an oral presentation at a scientific meeting, a demonstration at a trade show, a lecture or speech, a statement made on a radio talk show, a YouTube™ video, or a website or other on-line material.
Because of those requirements, using a crowdfunding site to raise money before you patent your invention could jeopardize your ability to obtain a patent for it.
Similarly, the patentability of your invention could be jeopardized by writing about it in an industry publication, giving an oral presentation, demonstrating the invention at a trade show, talking about it on a radio show or during a speech, or posting videos about it on YouTube.
Useful, as far as patents are concerned, means that the invention has a useful purpose and works. The mere suggestion of an idea, or an invention that doesn’t perform what it’s intended to do now, doesn’t qualify for a patent
Thus, it’s unlikely you could get a patent for a robotic device that in some future year might be able to plan your meals, order needed ingredients and then cook dinner each night.
Even if an invention meets the “new” test, a patent can be denied if the invention is deemed non-obvious.
To be non-obvious, the invention has to be sufficiently different so it wouldn’t seem obvious to a person having ordinary skill in the art of the invention. The USPTO indicates, for instance, that the substitution of one color for another, or changes in size, are ordinarily not patentable.
Preparing a patent application can be a complex and time-consuming task. Here are the steps you will need to take before moving forward with your application:
Be sure your invention will qualify for a patent. As described above, it must be something, new, useful, and non-obvious, or a significant change and improvement in something that exists.
Determine the marketability of your idea. Getting a patent can be time-consuming and a significant expense. Before you start down the path to obtaining a patent, it would be wise to investigate potential for your invention to make money.
Conduct a patent search. Before you apply for a patent, you need to do extensive research to be sure no one has filed for a patent on a similar invention.
Keep a written record of your work. In countries like the U. S. where patents are granted based on who files an application first (rather than who came up with the idea first), the written record primarily for your personal use. It helps you keep track of the development of your idea. But having dated, notarized descriptions of your progress might possibly help if someone were to steal your idea before you patent it.
Prepare and file the patent application. You will need to follow the detailed Patent Application Guides provided by the USPTO to submit your patent application.
Under U. S. law, only individuals, not businesses can be listed as the inventor of a patent. However, if the individual is employed, they may assign their patent rights to the employer. (In many companies, employment contracts require employees to assign patent rights to their employer.)
In the U. S., you have one year after the first time the invention is made public (disclosed, used, or sold) to apply for a patent. In many other countries, there is no grace period. You must apply for a patent before any public disclosure is made.
Another consideration in determining when to apply for a patent is that in the U.S and some other countries, patents are granted to the first person or organization to apply. Thus, if two or more individuals develop essentially the same invention, the individual who applies for the patent first will be the one it is granted to, not the person who started working on it first.
A provisional patent is an inexpensive and quick way a way to protect an invention when you’re not quite ready to file a full (non-provisional) patent. It establishes an early effective filing date, which is useful if others might be developing a similar concept.
Provisional patents are not examined. You do not have to include claims and shouldn’t include disclosures of prior art.
Provisional patents only last for one year. If you obtain a provisional patent, you must apply for the non-provisional patent within a year to maintain the patentability of your invention.
The length of time patent protection lasts depends on the type of patent.
Utility patents filed in the United States generally expire 20 years after the date of filing. However, to keep the patent from expiring, you have to pay maintenance fees to the patent office at certain intervals.
Plant patents granted in the U. S. expire 20 years from the date they are issued. No patent maintenance fees are required for plant patents.
Design patents filed on or after May 13, 2015, expire 15 years after the date they are issued. Design patents filed before that date expire 14 years from the date they were granted. There are no maintenance fees required for design patents.
If you are a small business and don’t hire an attorney to prepare and file our patent application, your cost to apply for a patent can be as little as $860. If you’re a micro-sized entity, it can be as low as $430. That said, patent law is so complicated, that it is not advisable to apply for a full patent without the help of an experienced patent attorney. Because of the amount of work and legal detail involved, the cost of applying for a patent can range from $10,000 to $20,000. or more when you include the attorney’s fees.
A provisional patent can be filed for considerably less money. However, as discussed above, it is only a placeholder, establishing the date of filing. You will still need to file a full patent application within one year.
A patent lets you stop other companies from selling inventions that mimic yours in your country. It can increase your profits from the invention because the patent let you control the selling price and stop bigger competitors from marketing your idea or undercutting your prices. A patent can also help you find investors to fund the development and marketing of your invention.
As desirable as patents may seem, they do have disadvantages. One patent disadvantage is the high cost of applying for obtaining and maintain them. Because of the amount of work and legal detail involved, the cost can range from $10,000 to $20,000. or more to secure a patent.
Another disadvantage is that patent law requires you to describe your invention in detail. The detailed descriptions and drawings become part of public record. They could be useful to competitors who want to create something similar without violating your patent.
Finally, a patent has a limited life. Utility patents and plant patents expire 20 years after the date the patent application was filed. Design patents expire 15 years after the date the patent was granted. Once a patent expires, anyone can make and sell your invention without paying you for it.
The term, patent pending, lets others know that you have filed for a patent, but the application has not yet been approved. It can be used when you’ve applied for a provisional patent as well as when you have filed for the non-provisional patent.
Legally, you can file a patent application without hiring an attorney. But doing so isn’t advisable. Patent law is complicated, and the application process is complex. An attorney who specializes in patent law will be experienced in searching patent records, will know how to handle the details and will know how to word your claims in the way that offers the most protection for your invention.
Disclaimer: The content on this page is for informational purposes only, and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
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