When an individual or business creates a new and novel product, process, design or plant species, that invention may generally benefit from safeguards outlined within existing intellectual property laws. Specifically, the invention’s creator(s) may file for patent protections via a non-provisional patent application. If successfully granted, the patent will give the owner(s) the right to exclusively use, profit from and enforce protections related to that creative work for a specific period of time.
Why File a Patent Application?
It is critically important to formally file a patent application with the U.S. Patent and Trademark Office as soon as your work is eligible for protections. Failure to take this step may leave your invention vulnerable to infringement by other individuals and/or businesses. Although the patent application process is notoriously complex and nuances of the process are strictly enforced, an experienced patent attorney will be able to help you navigate the path to patent ownership as smoothly and successfully as is possible.
Once you become a patent owner, you will be able to enforce your intellectual property rights against those who would seek to use or profit off your invention without your permission. It is particularly important to obtain patent safeguards as early as you can, because the outcome of patent litigation often rests upon the filing date assigned to a non-provisional patent application.
If a would-be infringer successfully argues that certain kinds of so-called “prior art” existed before you secured your filing date, your protections may be compromised. This is the primary reason why you don’t want to wait any longer than necessary to consult a patent attorney about your work. Any time wasted may allow prior art to impact the success of your patent application and/or your ability to defend your intellectual property rights in the event of future patent litigation. Your patent attorney will be able to explain how conducting a thorough patent owner search during the application process may help to mitigate any claims of prior art down the road.
When new species and hybrids of asexually reproducing plant species are created or discovered, they may be protected by plant patents. This is not the only kind of intellectual property protection that applies to plants. Oftentimes, highly technical genetically modified plants are protected using other forms of intellectual property safeguards. However, any individual or business should speak with a patent attorney if they believe that their creation(s) may be eligible for protection. New plant species are currently a valuable commodity and should be treated thoughtfully by their creators.
Novel, non-obvious and useful products and processes may be protected by utility patents. Roughly nine out of every 10 patents approved by the USPTO are utility patents, so this is the process you will likely become familiar with if you are looking to safeguard your creative work. Because so many utility patents exist, it is particularly important to conduct a thorough patent owner search before submitting a non-provisional utility patent application. As with any patent application, you will need to collect extensive notes about your creative process and submit them to your attorney so that your patent lawyer will be able to adequately illustrate that your work was indeed your own.
Design patents protect the integral design elements of manufactured products and processes. For example, the iconic design of a glass Coca-Cola bottle is protected by a design patent. It is important to note that the designs eligible for patent are not merely decorative in nature and cannot be removed from the useful product or process they are applied to. For example, one cannot remove the Coca-Cola bottle’s shape from its purpose of allowing a customer to enjoy the drink inside it.
Provisional and Non-Provisional Patent Applications
It is important for creators and inventors to understand that a legal tool exists which is designed to help businesses and individuals obtain favorable patent filing dates. These dates are critical because they help to guard inventions against claims of prior art. As the existence of prior art can lead to the rejection of a patent application and/or an unfavorable patent litigation ruling, securing a favorable filing date is vitally important. The filing date of a non-provisional (final, formal) patent application request is the date that the U.S. Patent and Trademark Office and intellectual property judges will evaluate claims of prior art against.
When a piece of creative work is still in development, but the inventor or creator needs less than one calendar year to ensure that it is eligible for non-provisional patent protection, that individual or business may be able to file a provisional patent application in order to secure a favorable non-provisional application filing date. Filing a provisional patent application will not transfer any legal protection to your creative work. However, it will help to ensure that your non-provisional filing date may more fully protect your work against claims of prior art.
Please note that provisional patent applications may not be filed in regards to design patents. They are available for both plant and utility patents though. If you have questions about filing a provisional patent application within a 365-day window prior to filing a non-provisional patent application, please ask your patent attorney for relevant guidance.
Intellectual Property Assistance Is Available
Because it is so important to secure a favorable filing date for your patent application, please do not hesitate to reach out with questions today. You may not ultimately be ready to file your application quite yet, but that is okay. Compiling the information your application will require will take time. It will also take our team some time to process the information you provide. The sooner you start digging into the process, the more prepared you will be to secure your patent safeguards against prior art and would-be infringers. Our team of intellectual property attorneys has extensive experience guiding both businesses and individuals through the patent application process.