When a person invents something that is new and useful, the government is empowered to reward the inventor with an exclusive right to that invention for 20 years in the United States. This right is called a patent. Accordingly, a patent gives the inventor the right to exclude others from making, using, offering for sale, or selling the invention in the United States, or from “importing” the claimed invention into the United States.
Who Can Apply for a Patent?
A patent may be applied for only in the name(s) of the actual inventor or inventors. However, a company or employer whose employee invents during the scope and course of employment may also be entitled to patent rights.
What Can Be Patented?
Virtually any physical item/machine/object (even if it is constructed with known components) can potentially be patented, assuming the object is new, and is not an obvious improvement of other known objects. To this end, patentable inventions can include any new and useful process, machine, manufacture, or composition of matter, including a new and useful improvement thereof. Patentable processes can include not only industrial or technical processes, but also some types of business methods as well.
What Cannot Be Patented?
Patents do not cover laws of nature, physical phenomena, and abstract ideas. Inventions directed to utilizing special nuclear material or atomic energy in an atomic weapon are also generally excluded from patent coverage.
Is There More Than One Type of Patent?
Yes. Three different types of patents exist under United States law:
1. Utility patents, (MOST COMMON) cover any new and useful process, machine, article of manufacture, composition of matter, or any new and useful improvement thereof. This type of patent covers the invention described in the words of its claims.
2. Design patents cover a new, original, and ornamental design for an article of manufacture. The design patent protects only the appearance of an article, not its functional features. The drawings define the scope of patent protection.
3. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
How Long Does a Patent Last?
A utility or plant patent lasts for a term of 20 years from its filing date. A design patent lasts 14 years from its issue date. For a patent to remain in effect for its complete term, periodic maintenance fees must be timely paid.
What Makes an Invention Patentable?
To be patentable, an invention must be new. This means that the invention was not already known or used by others in this country patented or described in a printed publication in this or a foreign country, before filing for a United States Patent. Additionally, the invention must not have been patented, or described in a printed publication in this or a foreign country, or in public use or on sale in this country for more than one year prior to the application for patent in the United States.
The invention must also be “nonobvious” in order to be patentable. This means that the invention must be sufficiently different from what has been previously made, used or described, so that it can be considered as “nonobvious” to a person having ordinary skill in the area of technology to which it relates. If, for example, literature already shows a chemical process that is the same as the invention, other than the substitution of a particular chemical, and that particular chemical is a commonly known substitution, the invention is not patentable. Small obvious differences are not patentable.
Do I Need a Prototype?
No. You only need to describe your idea in enough detail to enable another person “of ordinary skill in the art” to make and use the invention.
How is a Patent Obtained?
In order to obtain a patent, an application must be made to the U.S. Patent & Trademark Office in the name of the inventor. If there is more than one inventor, the application must name all the joint inventors.
What are the Parts of a Patent Application?
A patent application must include a written specification which provides a detailed description of the invention, abstract, background and summary of the invention; an oath or declaration that the inventor believes his or herself to be the original and first inventor of the subject matter of the “application;” and claims that define the legal scope of the patented invention. If necessary to understand the invention, drawings must also be included along with the applicable government filing documents, search and examination fees.
How is the Application Examined by the United States Patent and Trademark Office?
A complete patent application is assigned to the examining technology center of the USPTO for the technology area of the invention. Applications are normally examined in the order in which they are received. However, under certain special circumstances, an application can be expedited.
When the application is examined, the examiner will study it for compliance with all applicable statutory requirements. The examiner will also search through U.S. patents and published applications, foreign patent documents, and available literature, to ensure the claimed invention is new, useful and nonobvious. If the examiner’s decision on patentability is favorable, a patent is granted. Otherwise, the application is rejected with the reasons for rejection stated in an Office Action. An opportunity is then given to the applicant to cure the defect or to argue that the claimed invention is patentable without any changes. On average, two out of every three patent applications ultimately lead to issued patents.
Patent Allowance and Issurance
If the patent is ultimately allowed to issue, the applicant will be issued a “Notice Of Allowance.” The inventor must then pay an issue fee within three months or risk the abandonment of the application.