What is a Patent?
Patents grant exclusive rights to creators of intellectual property, such
as inventions, for a limited time. It is important to note that a patent
does not grant an inventor the right to make, use, and sell and invention;
it grants the right to exclude others from doing these things without
permission. For example, a patent that uses designs from pre-existing
patents may force an inventor to acquire licenses to use those designs
before the patent itself can be used.
Requirements of a Patent
To qualify for a patent, the intellectual property must include "new
and useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof."
process is a method or procedure for doing something, usually industrially related.
Machines are tools or devices that perform a specified function.
Manufacture means anything that is made, which includes manufactured goods.
composition of matter refers to chemical compounds and their structures.
The phrase, "
new and useful improvement," indicates that the invention does not have to re-invent the wheel.
Inventions that use prior technology in novel ways with significant improvements
are also eligible for patent protection.
Types of Patents
Utility patents are the most common type, and protect the process or function of an invention.
These patents generally have a 20 year term from the date of filing, and
periodic fees must be paid to maintain the patent during its lifespan.
Design patents protect "any new, original and ornamental design for an article of
manufacture." Functional aspects of the design are not protected
by the patent, only its appearance. Design patents have a 14 year term
from the date of filing, and no fees need be paid to maintain a design patent.
Plant patents give creators protection for "asexually reproduc[ing] any distinct
and new variety of plant, including cultivated sports, mutants, hybrids,
and newly found seedlings, other than a tuber propagated plant or a plant
found in an uncultivated state." Plant patents last for 17 years
from the date of filing.
How Do I Get a Patent?
The process of obtaining a patent from the US Patent and Trademark Office
(USPTO) is called patent prosecution. Applicants are required to prepare
an application and file it with the USPTO, after which point the patent
prosecution begins. USPTO examiners will analyze the claims set forth
by the inventor to determine if a patent can be issued for an invention.
Please note that the United States recently switched from a first-to-invent
rule to a first-inventor-to-file system under the America Invents Act
(AIA); priority of invention is no longer determined from inventors proving
that they invented earlier than their competitors (however, this rule
is not without exceptions).
As a first step, a provisional patent application may be filed. A
provisional patent application is a procedural tool to permit an inventor to secure an early
filing date, while delaying some of the formal requirements and cost of
a utility patent application. A provisional patent application provides
the right to file a full patent application within a year, and claim the
filing date of the provisional application for inventions fully disclosed
in the provisional application. A provisional application is not examined,
and is not a patent. Because provisional patents have fewer formal requirements
than the other types, they are easier to obtain, and have a lower filing
fee. The provisional patent gives an inventor the opportunity to decide
whether the invention merits a non-provisional application. The subject
matter of the provisional patent must be filed as a non-provisional patent
within one year.
What Goes in a Patent Application?
A patent application includes a written description, claims that define
the invention, drawings if necessary to describe the invention, an abstract
of the invention, an oath from the inventor, and a fee. Please note that
there are certain formalities that must be observed with the USPTO as
well. A patent filed at the USPTO that has not yet been granted is given
patent-pending status (applies to provisional and non-provisional patents.
Note, receiving multiple patents for the same invention is called "double
patenting," and is strictly prohibited by the USPTO.
How are Patents Protected?
It is important to remember that patents are not self-enforcing. Patent
owners can vindicate their rights by bringing a suit for infringement.
A direct infringer is defined as someone who "without authority makes,
uses, offers to sell, or sells any patented invention." Patent owners
can hold someone liable for inducing infringement, and contributory infringers
are also liable for selling or offering to sell:
"a component of a patented machine, manufacture, combination or composition,
or a material or apparatus for use in practicing a patented process, constituting
a material part of the invention, knowing the same to be especially made
or especially adapted for use in an infringement of such patent, and not
a staple article or commodity of commerce suitable for substantial noninfringing
Patent owners can seek an injunction to stop infringers. Additionally,
Infringers are liable for the full extent of the damages caused by their
infringement. Patent owners may only recover once from an infringement.
It is extremely important to identify all infringers to ensure maximum
recovery; suits should be brought within a timely manner, as recovery
is impossible if the infringement ceases to exist.
Call us. Howard IP Law Group, P.C. can help you obtain patents to protect
your inventions. We can work through the facts and questions with you
and point out pitfalls, saving you time, money and headaches. Together
we can craft an approach tailored to your situation and plans.
Please note that the content of this page should only be used as a general
reference, and is not a substitute for legal advice. It is recommended
that you seek the assistance of legal counsel.