Did you just come up with a new invention or idea? Interested in learning more about the US patent system? Knowing when to start the patent process to what is even patentable can be a confusing process. Losing out on your ability to profit from your idea to legal copycats are some of the consequences of either failing to patent an invention or messing up the application process.
To help clear up the sometimes frustrating world of patents, we’ve created a beginner’s guide to patents. It includes a number of items every inventor should understand and consider; from filing patent applications to deciding whether to hire a patent attorney for assistance.
The 3 Types of Patents
Patents protect inventions and discoveries that are new and non-obvious. There are three types of patents: utility patents, design patents, and plant patents. Each type of patent is different and has its own set of eligibility requirements. Additionally, the different patents protect a specific type of invention or discovery. In rare cases, it is possible for one invention or discovery to have more than one kind of patent available to it.
When someone wants to patent an invention, they seek a utility patent. A utility patent is the most common type of patent applied for in the US. This is the type of patent that will cover processes, compositions of matter, machines, and manufactures that are new and useful. A utility patent may also be obtained for new and useful improvements to any existing processes, compositions of matter, machines, and manufactures.
Processes is defined as any acts or methods of doing something – usually involving industrial or technical processes.
Compositions of matter are basically chemical compositions, which can include a mixture of ingredients or new chemical compounds.
Machines include things that are generally defined as a machine, like a computer.
Manufactures are goods that are manufactured or made, such as scissors or a chair.
As this is the most common patent application, the majority of this article will focus on the basics surrounding patenting an idea or invention via the utility patent application process.
A design is the “surface ornamentation” of an object, which can include the shape or configuration of an object. In order to obtain a design patent, the design must be inseparable from the object. While the object and its design must be inseparable, a design patent will only protect the object’s appearance. In order to protect the functional or structural features, you would also need to file for a utility patent.
One can obtain a patent to protect a new and distinctive plant. To qualify for a plant patent, the plant must meet the following conditions: not a tuber propagated plant, not found in an uncultivated state, and the plant can be asexually reproduced. Asexual reproduction means that instead of being reproduced with a seed, the plant is reproduced by grafting or cutting the plant. This requirement exists because it is proof that the patent applicant can reproduce the plant.
What Is Patentable?
The USPTO states that in order for something to be patented, it must be more than a “mere idea”. So, unfortunately, the strike of genius that hits for a brand new invention alone is not patentable. Ideas are not patentable. However, just because you only have an idea does not mean you are finished. Now is the time to flesh out the idea – and even if you only have your drawings or one prototype – you have reached the stage where you can turn an idea into something that can be patented. It can be surprising how quickly a mere idea can turn into something that is actually able to be protected.
How Long Does Patent Protection Last?
A US utility patent lasts a period of 20 years beginning the date the patent application is filed. An additional year of protection can be added utilizing the provisional patent application, explained below. A design patent is generally granted protection for 14 years measured from the date the design patent is granted. Finally, a plant patent also has a 20 year protection span.
The Provisional Patent Application
A provisional application is a form of product patent application. This is filed before the full or non-provisional patent application. A utility or product patent is a patent that covers the creation of a new or improved—and useful—product, process, or machine. The provisional application acts as a placeholder with the US Patent and Trademark Office – USPTO. This placeholder establishes the filing date of your invention.
Importance of your Filing Date
The USPTO does not check or even verify the provisional patent application. But, that doesn’t make it useless. Instead, it states that on the filing an inventor demonstrates the intention of placing a product patent on said invention. This proves that you are the first person to attempt to patent this idea.
In the US this is vital because we follow the first to file philosophy. So, even if you’ve been working for years, you are out of luck if you were not the first one to file a product patent on this particular invention – and the provisional patent application helps here. The earliest of filing dates prevents your competition from beating you to the punch.
A provisional application is not the same as the non-provisional application. Protection only stays if you file a non-provisional application within a year. You are protected until your patent is actually granted. The examination can take some time. If you fail to file the non-provisional application you will also lose the protection.
“Patent pending” status is available for your invention and marketing materials as soon as the provisional patent application is filed and paid. Plus, once filed, you also maintain your status while the application is pending examination.
Required Application Items
Your application should include:
- A cover sheet which must include information such as the name(s) of all inventors, addresses, title of the invention, and any applicable attorney information
- A detailed description of how to build and use your product
- Drawings of your invention
- The required fees.
File provisional patent applications online or by mail. The online application system can be found here.
Keep In Mind
The emphasis on provisional patents typically comes from the early filing date and getting “patent pending” status. However, rushing through the application simply to establish those items may really hurt you in the long run.
- If challenged, the earlier filing date will only count if your provisional patent application truly describes and matches the same invention in the non-provisional patent application.
- Your patent will only cover the ways and different manners of use that you describe in your provisional patent application. What that means is if another company or person comes up with a new way to use your invention – and it is a use that you did not discuss – they will be safe to profit off of your invention.
- An applicant may file for more than one provisional patent application if it’s not perfect or does not accurately describe your invention, however you will be responsible for paying the filing fees each time and only the earliest application with the proper description’s filing date will count.
Don’t Worry About Copycats
Many applicants want to err on the side of caution and include few details with their provisional patent applications. It may be natural to want to protect your invention. What if you can’t meet the deadline? Or, what if another inventor copies me? Remember that provisional patent applications are private. The provisional application is not released even when the patent is granted. There are very few exceptions to this rule.
Since you no longer fear copycats, it is in an applicant’s best interest to be as detailed as possible with the description on your provisional patent application. If it is a machine, describe all the parts. If it is a process, share every step. Be as specific as possible.
The more information you share, the easier it will be to complete a non-provisional patent application (which will be explained in greater detail below) in the future.
The Patent Search
The USPTO requires that both a provisional patent application and a non-provisional patent application include comparisons to the prior art of other patented inventions to prove that yours is unique. This is the section that requires some homework. Either the inventor or a patent attorney can conduct this research. The descriptions of the distinctive features of your invention, known as claims, will be used by your patent examiner at the USPTO to determine if your invention is truly new and patentable.
While the patent search can be a hard process, it can also be a beneficial one. Since you know that the USPTO will only patent ideas/inventions that are completely new and unique – this process may potentially save you time and money. It will undoubtedly be tough to handle, but think about how much better it is to discover that your invention is not unique or otherwise unpatentable now? Why wait until after you’ve paid the full USPTO non-provisional application filing fees or attorney’s fees or additional manufacturing costs?
How To Do a Patent Search
A patent search helps you find the needed prior art. There are a variety of tools, some free and some paid, that will allow you to search for patents internationally. The USPTO, Google, and the World Intellectual Property Organization (“WIPO”) have well-known systems. Another advantage to researching the prior art and patents is that they can be used as a template for your patent application. Different industries may have different standards for their provisional patent applications.
For a full rundown of the different patent search tools, please check out our article: Best Tools for a Patent Search.
The Non-Provisional Patent Application
The non-provisional patent application is the process that takes your invention from zero protection or patent pending status into truly enforceable claim(s). Begin using “patent pending” status on your end as soon as your application has been filed and paid. It can take years for the USPTO to fully examine a non-provisional patent application.
You have full protection when the non-provisional patent is granted. If anyone creates something that matches, they are infringing on your patent and can be sued.
What will you do with your patent?
No one wants to have their idea stolen, however not every great idea warrants a patent. First, you must consider the costs of obtaining a patent. These costs range from filing fees to possibly hiring a patent attorney. A second consideration is how you plan on utilizing the protection once you have it. Are you obtaining the patent simply to have it or do you plan on making a profit or living off of the invention? These items are crucial in deciding whether or not patenting your invention makes sense.
If you make the choice to move forward with the patent application process, do not make the mistake of thinking that the patent alone will sustain you and your business. A business game-plan is necessary. Why are you getting a patent? Are you trying to obtain patents for the purpose of licensing for royalties or revenue? Some will use patents to sue infringers. Before spending any time or money on your patent application, please make sure you can answer these questions.
Do I hire a Patent Attorney?
This is truly just a beginner’s guide to patents. Patents is a difficult and confusing field. Attorneys must have a science background. Plus, they take an additional intellectual property specific bar exam. This sounds expensive, we get it. However, this shows just how complex this field is. An attorney needs a high level of understanding to successfully navigate patents.
LawTrades Can Help
Whether you’ve made the decision to hire an attorney or go it alone, LawTrades can help you with your patent application. Continue to read the articles on our blog relating to patent applications. Or, you can use our services to be matched with a seasoned patent attorney in your area. Submit your application correctly the first time.