What is a Patent?
Patenting your invention is an important step in protecting intellectual property rights, but the process of obtaining this protection is long and complex. A basic understanding of the patent process can help you determine whether your invention is patentable and if filing an application is the best move for you and your business. The purpose of the U.S. patent system is to foster innovation and bring new ideas to the market.
A patent is different from a trademark (protection of a name, logo, phrase, symbol, or design) or copyright (protection of written works). A patent is an exclusive right granted to inventors by the United States Patent and Trademark Office (or “USPTO”) to protect their intellectual property rights for a limited period of time. Patent laws provide a legal basis for the holder to exclusively use or sell an invention and also enable the holder to initiate a trademark infringement lawsuit against any infringers who use the invention without permission.
Learn more about the differences between trademarks, copyrights, and patents.
What Can be Patented?
Mere ideas can’t be protected by patents. When an idea is developed enough to be considered an invention, then patent protection may be granted. Your idea may be an invention if you are able to articulate the details of the machine or process in a way that a person skilled in that technical field or knowledgeable of the subject matter can understand how to make and use it.
However, not every invention is eligible for a patent. Patents are not granted for laws of nature, physical phenomena, abstract ideas, and non-useful objects. Patents are only available for useful processes, methods, machines, manufactured articles, and new compositions.
Types of Patents
Each type of patent has its own specific requirements, but for an invention to qualify for intellectual property protection, the invention must be unique, non-obvious, and useful.
There are three types of patents:
Utility patents are exclusive rights granted to protect new and useful processes, machines, manufactures, compositions of matter, or improvements of existing inventions. Protected processes can include any acts or methods of performing an industrial or technical task. Machinations that can be patented include any object that is generally considered a machine of any size. The term “compositions of matter” refers to a mix of existing chemical compounds or new chemical compounds.
Obtaining a utility patent allows the inventor to exclude others from making, using, or selling the patented invention for a period of 20 years from the earliest filing date.
Design patents protect investor’s intellectual property rights for inventions of new, original, and ornamental designs for an article of manufacture. It is important to note that these types of patents only protect the superficial design and not the internal workings of any product with the design. If you are seeking to protect the structure or the interior workings of an invention, a utility patent will be needed.
Obtaining a design patent will allow you to take legal action against patent infringement which includes making, using, or selling the design for 15 years after the date of issuance.
Plant patents are granted to protect novel, nonobvious, asexually reproduced plants. This includes plants created by any method for asexual reproducing plants, such as cross-pollination or propagation.
If a plant patent is obtained, it affords patent rights from others creating or profiting from the plant for a term of 20 years from the date of application.
Provisional & Non-Provisional Patents
Submitting a provisional patent application can allow the applicant additional time to finesse the invention or conduct additional research while protecting the invention from being claimed by someone else for a year. Within that period of a year, the applicant must file a corresponding non-provisional application to maintain any intellectual property rights and officially be granted a patent.
Non-provisional patent applications require specific and advanced details of the invention and must conform to all formalities before it is examined by the USPTO. This process is longer and more arduous, but it is the only path to obtaining patent protection for an invention.
How Much Does it Cost to Get a Patent?
The costs of filing a patent application can vary significantly. Patent law is complicated, and legal fees for a patent attorney will largely depend on the complexity of your invention. Government filing fees alone are usually from $300-760 at a minimum.
Other costs likely to be incurred include the fees for professional drawings, and this alone can range from approximately $300-500.
After the initial filing fees, there are maintenance fees to keep the patent active. If the patent holder fails to pay the maintenance fees, patent protection is lost.
How Do You Register a Patent?
Before undergoing the entire patent application process, the best first step to take is to conduct a preliminary patent search. Conducting a basic search on your own can give you a realistic idea of whether you should then retain a patent attorney to conduct a professional patent search. This step is particularly important since obtaining a patent is dependent on whether your invention is considered unique. The patent search report will list current and pending patents for the same or similar inventions.
If you decide to pursue patent protection after conducting a preliminary search, a registered patent attorney can generate an opinion regarding the likelihood that you can obtain intellectual protection on your invention. Obtaining this legal opinion can provide valuable insights that may help you weigh the costs and benefits of filing an application.
With a comprehensive understanding of the patentability of your invention, the next step is to file a patent application with the patent office. The particular filing requirements will vary depending on the type of application (utility, design, or plant). Once the application is filed and deemed to meet the requirements, your application is officially considered “patent pending,” and you will be provided a filing date and application number.
Within about one to three years from your filing date, your application will be reviewed by a patent examiner at the USPTO. The examiner will then send an initial determination regarding the denial or granting of the patent for your invention before the application is examined based on merit.
How Long Does it Take to Get a Patent?
After the application is filed, the first USPTO office action will be a preliminary examination for compliance with formalities. Wait times at this initial review stage will depend on whether your application is provisional or nonprovisional.
A nonprovisional application will go directly into the queue for examination. A provisional application, however, will not go into the examination queue and instead acts as a placeholder for a one-year period from the filing date for you to file a nonprovisional application.
The typical wait time for the USPTO to examine your application and make an initial determination based on the first substantive review is about 2 years. The current wait time for the first office action is 15 months. You can view the latest USPTO time statistics on their website.
After the first office action, the application is then examined based on its merits. The USPTO typically submits a final disposition (allowance or rejection) of your patent application within a year or more. The examination period will depend on the technical area(s) involved in your invention. The USPTO groups together patent applications based on the technical field (referred to as “art units”). Some areas have shorter or longer processing times depending on the volume of applications in each art unit at the time.
If the USPTO examiner determines that your application merits that a patent will be granted, he or she will send a Notice of Allowance requesting the required fees before the patent will be published and issued. The time of issuance of the patent is highly dependent on the timely payment of fees. Patents are usually issued within 6-8 weeks after timely payment of the issue fee.
While anybody can submit their own patent, patent law is complex, and it can be easy to overlook critical details and end up not protecting your idea. While expensive, attorneys that specialize in intellectual property are best, but at a minimum, using online companies like LegalZoom may help.
USPTO-Types of Patents: https://www.uspto.gov/patents-getting-started/patent-basics/types-patent-applicationsproceedings