Patents are a central component of modern intellectual property protection. While copyrights cover creative works and content and trademarks cover brand logos, patents exist to protect new inventions and product innovations. Their primary purpose is to incentivize inventors by granting them an economic advantage in exchange for them sharing their invention with the greater community.
A patent is a set of exclusive rights that give the patent holder unique ownership of a specific invention for a set period of time. U.S patents legally prevent and block anyone from building, using or selling the patented invention across the United States. They are given by the U.S. Patent and Trademark Office (USPTO), a federal agency that implements the Constitutional law that “promotes the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors on the exclusive Right to their respective Writings and Discoveries.”
In exchange for these exclusive rights to make, use, and sell their invention, the patentee has to disclose how to make and use their new device. The idea, then, is to help facilitate the spread of knowledge while providing an economic stimulus for innovators.
What You Need to Know About Patents:
Generally, Utility Patents and Plants Patents are granted for 20 years from the filing date of the application issued by the Patent and Trademark Office. For utility patents, there are maintenance fees to be paid throughout the lifetime of the patent. If they are not paid on time, expect that the patent will expire earlier than the 20-year term.
Design patents are usually valid for 14 years from the date of issue. If a patent application was filed on or after March 13, 2015 (the date the United States secured the necessary paperwork to endorse the Hague Agreement) the term is 15 years from the date of issue. Unlike utility patents and plants patents, there are no maintenance fees due on design patents.
Patents filed after May 29, 2000, may have their terms extended by the USPTO delays. Patents issued before or pending on June 1995, which are still in existence, are subjected to different rules. There may additionally be other special rules and exceptions that may affect a patent’s terms.
Expired patents cannot be renewed. The moment a patent expires, the invention enters the public domain. One cannot acquire the rights to an expired patent.
In some cases, patents have had their terms extended through private laws in Congress or through a section of the Patent Law that allows restoration of patent term lost because of government regulatory delays.
Almost all patent extensions are granted to drug patents. This is because necessary testing and FDA approvals are often take up nearly all of the patent term. Aside from very rare circumstances, patents do not receive extensions.
Utility patents cover new machines, processes, articles of manufacture, compositions of matter (such as chemicals or modified genes) and improvements to any of the above.
Design Patents cover only the appearance of useful objects. They apply only to aesthetics and not to the function of an object.
Plant patents cover certain plants that are propagated asexually. Newly developed varieties of apples and cherries, for example, can be protected by a patent.
In order for the invention to be patented, it must possess three major requirements for patentability:
Novelty requires that the invention’s description was not listed in any patent, any published patent application or other publication, and has never been in public use or on sale or filed by others before your application. This includes journaland magazine articles, even those published by the inventor. There is a one-year window in which an inventor may apply for a patent after first describing their invention in public. If you have described your invention publically and have not applied for a patent within one year, then the invention is no longer patentable.
The invention must serve some useful purpose. Very few applications are dismissed for failing to be useful; the interpretation of usefulness is quite broad. An invention does not have to be realistically marketable to be considered useful, nor does an applicant need to demonstrate that their invention is in any way needed. Because very nearly everything serves some kind of function, almost all patent applications meet this requirement.
This requirement is perhaps the trickiest of the three, as it is somewhat subjective. The invention must be considered not to be an obvious consequence of previous developments from the perspective of any individual competent and well-informed in the applicable field. The question is, essentially, whether the invention is something which anyone with adequate knowledge in the subject domain would consider to be self-evident or obvious, without them having to see your patent application.
In assessing novelty and obviousness, the USPTO considers relevant prior art, which is evidence of the state of technological knowledge up to the time of the patent application.
Note that for patent application and patents issued on them with filing date effective before March 16, 2013, novelty and obviousness are judged as of the date of the invention. But if has an effective filing date after March 16, 2013, novelty and obviousness are judged as of the effective filing date of the application. There may also be differences between pre- and post- March 16th applications regarding what counts as “prior art”.
It is up to the inventor (and their attorney) to perform a novelty search. A novelty search is composed of two parts. First, the applicant or their attorney should review publications, websites, magazines and other literature for evidence of prior invention. Second, a patent search which covers existing patents and applications should be undertaken by a qualified patent attorney.
It is possible to perform your own search using the USPTO website, which can serve to supplement a professional search. We strongly advise clients not to substitute your own patent search for a professional search, however, as there are several serious limitations to doing it yourself. Those limitations are:
Because of the likelihood that an untrained eye will miss important information, we strongly recommend the services of a qualified patent attorney. The cost is modest compared with the costs of having to start your application all over again if after a year or two te USPTO rejects the application because of something you missed in your search.
A patent prevents others from making, using, or selling your invention. It does not necessarily give you the right to do so, though. There could be other legal reasons, such as another patent which is considered to be dominant over yours, which could prevent you from selling or manufacturing your invention.
There is a one year period following any public description of an invention during which an inventor can apply for a patent. This includes any publication, including those which you have published yourself. Most countries do not allow this one-year grace period, and so you are always better off refraining from any public disclosure until after you have applied for a patent.
The degree to which a competitor would have to alter a device or process varies between patents. The broadness, or scope, is part of the patent's claims. The broader the patent, the more difficult it would be to avoid the patent through small adjustments. This range is called the range of equivalents. This range is large for inventions that are completely innovative and new, and smaller for inventions which differ only slightly from those which came before them. The breadth of a patent's coverage is determined by examining the prior art Consult a patent attorney for advice on the specific breadth of your patent.
Sadly, no. The “postmark patent” does not provide any legal protection. This popular notion comes from the period when patents were awarded to the initial inventor, and when novelty was indexed to the date of invention. Now, however, patent rights are awarded to those who file first, and novelty is assigned to the date of filing rather than to the first inventor. Therefore, while mailing yourself a dated letter might prove that you were indeed the first inventor, that would be meaningless in the context of contemporary patent law.
The America Invents Act of 2011, which was established on March 16, 2013, changed the law from “first to invent” to “first inventor to file”. This means the date when the invention was made is now irrelevant. What matters now is the time you filed your patent application and whether you were an inventor. In the case of two inventors applying for a patent on the same invention, the first to file it at USPTO will be awarded the patent.
This is why provisional applications can be important early in the process: they give you an earlier date of initial filing.
Unfortunately, no. Though you have the right to stop others from making something overseas and selling it here or making it here and selling it overseas, you cannot stop them from creating and selling it in other countries. You will need to file your patent in every country in which you want patent protection.
You must file within a year of the US filing date in order to claim the benefit of your US filing date in those countries. Be aware that the United States is one of the few countries which allows a grace period following any public disclosure for patent filing. This means that if you have published anything public regarding your invention prior to filing, you are unlikely to be able to patent it in other countries.
The Patent Cooperation Treaty or “PCT”
This treaty allows inventors, who are an American citizen or resident, to file an “International Application” in the US Patent Office. This gives the inventor a right to file in a number of foreign countries for up to 30 or 31 months from filing date. However, it must be filed eventually in each country separately.
Keep in mind that the United States has stricter patenting laws than most nations and that rules and requirements vary from place to place. For instance, business methods that can be patented in the US, but cannot be patented in most European countries. Similarly, medical procedures are not patentable in most countries.
No. The purpose of a patent is to declare publically the functioning of your invention or process in exchange for a period of exclusive rights over that invention. It is possible to acquire so-called Trade Secret protection, though this does not protect you from someone else reverse-engineering your design and then filing for a patent themselves and pre-empting your continued use of it.
Here are the steps in the process of getting a patent:
Learn more about responding to the USPTO on our How to Read Office Actions page.
Historically, patent applications were considered secret. That all changed with the American Inventor’s Protection Act of 1999. AIPA requires publication of all non-provisional patent applications filed after November 29, 2000. Patent applications filed before this date are also available upon request. Applications are published every Thursday.
When should an application be published?
18 months after the “priority date”, or the date at which the earliest filing was made. So, if you submit a utility patent application 10 months after submitting a provisional application, the utility patent application will be published 8 months after you file it.
How are patent applications published?
Applications are published on the USPTO website. They are published in electronic form only and are searchable on the USPTO website just as issued patents. The complete record of correspondence between the inventor and the USPTO will also be available online on the Patent Application Information Retrieval system (public PAIR).
What exactly gets published?
The original publication is generally the application as filed, not including any later amendments. It is also possible to request republication of an application after such amendments have been added for a $70 fee (for small entities) It is important to consult with a patent professional should you have any questions about publication.
Is it possible to stop the publication of an application?
Yes, it is possible, but only if the application has not been filed in any other country that publishes applications, or through the Patent Cooperation Treaty, and there is no intention of filing in any country that publishes applications or through the PCT> and you have no intention of filing in any such country. You must request that your patent application not be> published when you submit it.
This option is only available if you have no intentions of filing outside of the U.S. If you are unsure whether or not you wish to do so, then you cannot avoid publication of your application. If you have requested for your application not to be published, but then later change your mind about filing in other countries, then you must inform the USPTO immediately or risk the abandonment or invalidation of your application.
Is it possible to publish the application sooner than 18 months?
Yes, applicants can request early publication. As of January 1, 2014, there is no fee for requesting early publication.
What are the advantages of publication?
Having your patent application published serves as a record which allows for patent holders to seek royalties from infringements on their invention which occurred before the issuing of the patent but after the filing. In the past, this was impossible and royalties could only be sought from those who had infringed the patent after the issuing the patent. A “reasonable royalty” may be acquired for infringing use between the publication and the issuance of the patent if:
You would still have to wait until the patent was issued before suing for damages. However, it allows you the opportunity to seek compensation for infringement that takes place during the application process and is the primary reason for the "patent pending" designation.
How much will it cost to publish an application?
Nothing. There used to be a $300 publication fee after the issue fee was paid. However, that fee was eliminated as of January 1, 2014.
The cost of a patent depends on the invention, but for a simple mechanical patent, you can expect costs of around $7,500. This cost will be higher for electronics, biotechnology, computers, and other more complex inventions.
For more information on costs, see our UPTO Patent Fees page. For a more precise estimate of your particular application, get a quote from out network of professional patent attorneys for a more comprehensive estimate of the costs of your patent application.
Yes, so long as your home country grants the same rights to U.S citizens to file in your country. Most nations have this reciprocal relationship. Usually, inventors first file a patent application in their home country, then a United States patent application based on their foreign filing. This is sometimes mandatory. This allows governments to decide whether the invention should not be filed in foreign countries for national security reasons. Permission, though, is typically granted.
If an inventor is considering applying for a US patent first before they file n their home country, they should consult first with a patent attorney in their country.
A number of countries are members of a convention or have a treaty with the U.S such that if an inventor files a corresponding application in the U.S within one year of your filing in their home country, their home-country filing date will count as their US filing date. Inventors can also file an application through the Patent Cooperation Treaty that can file in the US up to thirty months after the priority date.
Patent Cooperation Treaty Applications (Non-U.S Applicants)
Over 145 countries are members of the PCT, but there are different provisions between different countries. Use of the PCT in your home country will depend on the provisions made when it signed the PCT.
Generally, if an inventor is not a US citizen or a resident, he or she will not be able to file a PCT application in the US. The inventor must file their PCT in the country where he or she resides or is a citizen, or in the International Bureau in the Hague. Unfortunately, if your country is not a member of the Patent Cooperation Treaty, filing a PCT application is not possible.
Once the PCT is filed in the home country, the inventor can file a US application (“National Phase”) based on the PCT application within 30 months of the first filing date to get the benefit of the priority filing date.
You can take advantage of Cad Crowd's patenting service to file your US National Phase application. Get an estimate now.
A Provisional Application is much less involved than a full patent application, requiring less time and money to submit. However, it is not a substitute for a Utility Patent. A provisional application assigns a filing date, but they are not examined by the USPTO or reviewed in any way. The advantage of filing a Provisional Application is to secure an earlier filing date for when you submit a full patent application. Patents are not granted on the basis of provisional applications alone. A utility patent application must be filed within one year of the provisional application in order to claim the benefits of the earlier filing date.
Provisional applications are not available for design patents.
No. The Disclosure Document program was eliminated effective February 1, 2007.
What is Disclosure Document?
The Disclosure Document program started in 1969. Applicants were charged a fee for the patent office to file the disclosures inventors had to send in anyways. These were kept for two years and served almost no purpose other than in extremely rare occasions when they were cited as evidence for the date of conception in a patent intervention. This almost never happened, though, and since March 2013 date of conception has been abandoned in favor of date of filing, rendering Disclosure Documents essentially useless.
Whatever value might be gained from a Disclosure Document can now be obtained by filing a Provisional Application.
This indicates that an inventor has a patent application on file at the USPTO. Up until a patent application has been resolved, as long as it has not been abandoned or withdrawn, you may designate your invention as "patent pending". There is no legal requirement to mark a product with “Patent Pending”, however it serves as notice to competitors and to the public that a patent application is in process, and thereby serves to discourage infringement, as anyone found to be using your invention after the filing date of your application will be susceptible to legal action once a patent issued.
At the moment the patent is issued, you will want to mark your product with the patent number or with the URL of a website that lists all of your patented products and the patents that apply to them.
Absolutely not. These companies are almost always scams, and can be very costly scams at that.
“Invention Marketing Companies” are companies that insist that they represent investors in taking their ideas to investors. Unfortunately, many inventors who are excited to bring their product to the world fall for this scheme. Invention Marketing Companies work by charging extremely high upfront costs for vague services, such as "filing patent documents" or "taking your product to investors". They generally will only file provisional applications, and will charge you thousands of dollars for doing so. They do not perform real patent searches, and they will never turn down an invention, even if it is obviously unpatentable.
We recommend that you steer clear of any company making offers which seem too good to be true. These companies operate by offering high upfront costs in exchange for taking very small royalties, but of course, they don't expect the patent to ever be issued and so they don't expect any royalties in the first place! Simply stay away.
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