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."

A 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.

A 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

1. 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.
2. 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.
3. 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 use."

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.