Patents are a central component of modern intellectual property protection. While copyrights cover creative works and content and trademarks, cover brand logos, and 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 sharing their inventions 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. U.S. patents legally prevent 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 application filing date issued by the Patent and Trademark Office. For utility patents, maintenance fees must be paid throughout the patent's lifetime. If they are not paid on time, expect the patent to 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 plant 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 terms lost because of government regulatory delays.
Almost all patent extensions are granted to drug patents. This is because necessary testing and FDA approvals often take up nearly all patent terms. Aside from infrequent 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. For example, new varieties of apples and cherries can be protected by a patent.
For the invention to be patented, it must possess three important requirements for patentability:
Novelty requires that the invention’s description was not listed in any patent, published patent application, or other publication and has never been in public use, on sale, or filed by others before your application. This includes journal and 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 published your invention and have not applied for a patent within one year, 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 marketable to be considered beneficial, nor does an applicant need to demonstrate that their invention is needed. Because nearly everything serves a 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. Essentially, the question is whether the invention is something that anyone with adequate knowledge in the subject domain would consider 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 applications and patents issued on them with a filing date before March 16, 2013, novelty and obviousness are judged as of the date of the invention. But after March 16, 2013, novelty and obviousness are judged as the application's effective filing date. 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 that covers existing patents and applications should be undertaken by a qualified patent attorney.
It is possible to perform your search using the USPTO website, which can supplement a professional search. However, we strongly advise clients not to substitute their patent search for a professional one, as there are several severe limitations to doing it yourself. Those limitations are:
Because an untrained eye will likely 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, the 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 that 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, so you are always better off refraining from any public disclosure until you apply 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 minor adjustments. This range is called the range of equivalents. This range is extensive for inventions that are completely innovative and new and smaller for inventions that differ 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 when patents were awarded to the initial inventor and when novelty was indexed to the date of invention. However, patent rights are awarded to those who file first, and novelty is assigned to the filing date rather than the first inventor. Therefore, while mailing yourself a dated letter might prove that you were indeed the first inventor, that would be meaningless in current patent law.
The America Invents Act of 2011, 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 when you filed your patent application and whether you were an inventor. If two inventors apply 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 critical early in the process: they give you an earlier date for the 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 where you want patent protection.
You must file within a year of the US filing date 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 before 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 American citizens or residents to file an “International Application” in the US Patent Office. This gives the inventor a right to file in several foreign countries for up to 30 or 31 months from the filing date. However, it must be filed eventually in each country separately.
Remember 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 can be patented in the US but not 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. However, this does not protect you from someone else reverse-engineering your design, filing for a patent themselves, and pre-empting your continued use.
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 the 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 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 the republication of an application after such amendments have been added for a $70 fee (for small entities). It is essential 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. 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 that allows 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 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 to seek compensation for infringement 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 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 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 our 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 before they file n their home country, they should consult first with a patent attorney in their country.
Many 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 apply to the Patent Cooperation Treaty and 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. Using the PCT in your home country will depend on the provisions made when signing 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, filing a PCT application is impossible if your country is not a member of the Patent Cooperation Treaty.
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 benefit from the priority filing date.
You can use 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 securing an earlier filing date for submitting a full patent application. Patents are not granted based on provisional applications alone. A utility patent application must be filed within one year of the provisional application 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 on rare occasions when they were cited as evidence for the date of conception in a patent intervention. This rarely happened, and since March 2013, the date of conception has been abandoned in favor of the date of filing, rendering disclosure documents 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. Until a patent application has been resolved, you may designate your invention as "patent pending" as long as it has not been abandoned or withdrawn. There is no legal requirement to mark a product with “Patent Pending”, however, it serves as notice to competitors and 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.
When the patent is issued, you will want to mark your product with the patent number or the URL of a website that lists all your patented products and the patents that apply to them.
Absolutely not. These companies are almost always scams, which can be very costly.
“Invention Marketing Companies” insist that they represent investors in taking their ideas to investors. Unfortunately, many inventors 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 will generally only file provisional applications and charge you thousands of dollars for doing so. They do not perform patent searches and will never turn down an invention, even if it is unpatentable.
We recommend that you steer clear of any company making offers that seem too good to be true. These companies operate by offering high upfront costs in exchange for taking minimal royalties. Still, of course, they don't expect the patent ever to be issued, so they don't expect any royalties in the first place! Simply stay away.
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