Patenting is an essential part of any product design campaign. Whether it is your intent to license your invention or to manufacture and sell it yourself, you’re going to need to file a patent application with the USPTO.
For those who have never gone through the process, applying for a patent can seem a daunting and confusing task. Patent law is complex and dynamic, and there is no shortage of popular misconceptions floating around in the public consciousness.
In this post, we’ll try to help clear up some of the confusion that surrounds patents by explaining the different types of patent applications and patents that can be obtained from the USPTO. So, what is a patent, anyways?
What is a Patent: Patent Definition
One of the most common misconceptions concerning patents is that they are method for protecting ideas. Patent’s don’t protect ideas. What patents protect are inventions. As defined by Wikipedia:
A patent (/ˈpætənt/ or /ˈpeɪtənt/) is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention.
You might now be wondering what then is the difference between an idea and an invention. Well, an invention is a novel or unique device, machine, process, or composition. Ideas are free and plentiful, whereas inventions require planning, thought, and investment. Inventions go the extra step by specifying how that with which they started idea could actually be realized in practice.
You might have an idea for a flying machine with flapping mechanical wings. But until you’ve worked out how such a thing might actually work and gone through the effort of figuring out how it might be built, you’ve only got an idea, and you haven’t yet got an invention.
In other words, while an invention begins with an idea, that’s only the first step. An idea is an abstraction, whereas an invention can actually be implemented and put into practice. Inventions might be improvements or modifications on things that have come before, but they must in some way be new and different. To help clarify the matter, there are a series of requirements which must be met in order to be eligible for a patent.
Patent Requirements:
- Novelty: To qualify for a patent, an invention must be novel. That is, it has to be substantially different in some way from similar inventions which have come before. Rare indeed is the invention for which there have been no precedents. But, to qualify for a patent, an invention has to introduce some new feature or functionality that is not described by any previous patent, publication, or application — even those published by the same inventor!
- Usefulness. To obtain a patent, an invention must not only be novel but also useful. An invention has to serve some purpose — any purpose! — in order to qualify. In fact, this requirement is very easy to meet, and in effect the only patents which are rejected on the basis of usefulness are such impossible devices as anti-gravity or perpetual motion machines. Pretty much anything that does anything can be said to serve some function or another. The inventor does not need to demonstrate that their invention would be marketable or needed in any way. The requirement is just that it be somehow useful.
- Obviousness. This requirement is a bit more complicated. The stipulation here is that to be patentable, an invention has to be something which isn’t an obvious and self-evident consequence of previous developments. In assessing the obviousness of an invention, the USPTO looks at the application from the perspective of “person having ordinary skill in the art” — that is, an imaginary someone with an adequate knowledge of the subject domain. Would the invention be obvious to someone who held all the relevant knowledge in the field?
Those requirements might seem pretty broad, and they are. The United States is particularly broad in the interpretation of what can be patented. The sorts of things which can be patented include:
- Machines
- Compounds
- Processes
- Software
- Genetically engineered organisms
- Businesses methods (almost uniquely to the United States)
That obviously covers a lot of ground. So long as an invention is novel and serves some purpose, there’s almost no limit to what can be patented. There are very few things which categorically cannot be patented, and they are limited to:
- Scientific laws
- Ideas
- Naturally occurring phenomena
- Inventions that serve only illegal purposes
- Nuclear weapons
- Human beings
- Tax strategies
What Patents Are For
The purpose of a patent is to provide a financial incentive for inventors and entrepreneurs to go through the effort and investment required to turn their ideas into inventions. A patent grants an inventor exclusive rights to their invention, preventing anyone else from making, selling, importing or using that invention.
Usually when people talk about patent protection, they’re referring about utility patents. There are, however, other kinds of patents. We’ll cover each of them below.
Utility Patents
Typically when people refer to patenting something or getting a patent, they are talking about utility patents. Utility patents are what protect the characteristic function of an invention, and are therefore the patents which protect that which is innovative and novel in an invention. The requirements listed above (novelty, usefulness, and obviousness) are all requirements of utility patents. Once awarded, a utility patent will remain in effect for 20 years, provided that the patent holder maintains the proper fees.
Utility patents are the most valuable type of patent for most entrepreneurs and inventors. Because utility patents protect the unique functionality of the invention, they cannot be circumvented by merely changing the appearance of the device or making some other superficial change. This is the major difference between utility patents and design patents.
Design Patents
US design patent D48,160: the original design for the Coca-Cola bottle.
Design patents, unlike utility patents, specifically protect the appearance, aesthetic, or ornamental design of a functional item. One would apply for a design patent if they wanted to prevent others from mimicking the appearance of their product.
Design patents differ from trademarks primarily in that they are available only for items with some practical utility, whereas trademarks are purely symbolic. However, it’s very important to note that design patents do not protect the invention per se, but only the ornamental design of the object. A design patent does not prevent anyone else from building and selling the same invention made to look slightly different.
Design patents are much less expensive and time-consuming to pursue than utility patents, primarily because the sort of protection they provide is less comprehensive and somewhat less valuable. Unlike utility patents, design patents have a term of only 14 years.
Utility patents and design patents together make up by far the bulk of the patent applications most inventors will file with the USPTO.
Plant Patents
Plant patents are somewhat rarer than either utility or design patents, and apply specifically to new types of living plants. Plant patents can be obtained by plant breeders who have created a new type of asexually reproduced plant that is not reproduced through tubers or found in an uncultivated state. These patents cover algae and fungi as well. Like utility patents, they remain in force for 20 years, if fees are paid. These patents are of interest only to botanists and plant breeders.
Provisional Patent Applications
Another popular misconception people have about patents is that there is such a thing as a provisional patent. There is no such thing as a provisional patent. Rather, there are provisional patent applications. It is the application which is provisional, it is not a patent with is provisional.
This distinction is imoportant because a provisional application cannot ever result in an issued patent. That’s what differentiates a provisional from a non-provisional application. A non-provisional application will have to be filed within one year of the provisional application in order for a patent ever to be issued.
Provisional applications exist primarily to give inventors the benefits of an earlier filing date when they do eventually submit their utility patent application. This can be relevant in as much as patents are awarded to the inventor who first files an application. It can also be important to secure an earlier filing date if the invention has been disclosed in any publication, as an inventor will then have only one year in which to file a patent before the invention becomes ineligible for protection.
Invention marketing scams often dupe would-be inventors by offering patenting services which amount to little more than filing a provisional application. Provisional patent applications are not even examined by the USPTO, and provide no protection whatsoever. They are only valuable if followed up with a non-provisional application.
International Patent Applications
International patent applications are very useful for inventors seeking patent protection in several countries. International patent applications are authorized by the Patent Cooperation Treaty (PCT). The PCT allows for an inventor to file for patent protection in any of the signatory countries at the same time through a single application through their local patent office.
International patent applications do not result in an international patent! There is no such thing as an international patent. Patents are always issued by a sovereign state and are valid only within the issuing state. The PCT greatly simplifies the process for acquiring foreign patents, but a distinct patent will need to be awarded by each state independently. The advantage provided by the PCT is that only one application has to be filed, it can be filed in their native language, and it can be filed at their local office. It will still be up to each individual nation in which the applicant has chosen to apply to decide whether to award the patent or not.
The advantages provided by the PCT are that only one application has to be filed, it can be filed in the applicant’s native language, and it can be filed at their local office. It will still be up to each individual nation in which the applicant has chosen to apply to decide whether to award a patent or not for that jurisdiction.
An inventor has 12 months after the earliest filing date of their patent with the USPTO to file an international patent application. The international application is given the same priority as the original application with the USPTO. That is, the filing date of your international application will have the benefits of the earliest filing date of your USPTO patent application so long as you submit within one year.
This is a great advantage of the PCT, as it allows an inventor to claim the benefits of an earlier filing date while being able to divert some of the significants costs of multiple applications to a later date.
For more information on patents and USPTO patent applications, visit our Patent pages. We offer comprehensive patenting services for inventors and entrepreneurs. From USPTO patent searches to utility and design patent applications, we’ll connect you with leading U.S based patent attorneys. Get a free estimate today.
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