Legal questions: How to patent an idea
How to submit a patent of an idea or invention.
Patents give inventors the exclusive right to make, sell, or use their invention in the United States or to import it into the United States for a limited period. In exchange, the inventor provides a public disclosure of their invention to the United States Patent and Trademark Office. In general, patent protection can be obtained in foreign countries by filing applications with their respective patent offices.
There are two primary types of patents: design patents and utility patents. Design patents cover the ornamental design of a manufactured article and last for 14 years from the date the patent is granted. Utility patents can be granted for processes, machines, manufactured articles, matter compositions, or improvements to any of these items. Utility patents last 20 years from the date the patent is first applied for if periodic maintenance fees are paid to the United States Patent and Trademark Office. Regardless of the type of patent applied for, the invention must be novel, nonobvious, useful, and not offensive to public morality.
When contemplating pursuing a patent for an invention, the inventor first needs to verify that his or her idea satisfies the basic requirements for obtaining a patent listed above. In addition, a patent application must be filed within one year from the date that the invention was discovered, first used, or offered for sale. If the invention satisfies the basic requirements, a patent search is recommended to ascertain if the invention is novel and nonobvious. While searching for previously patented inventions is not required before an application is filed, it is useful to determine how difficult it may be to obtain a patent. A comprehensive patent search includes an examination of the relevant patents filed in the United States and in foreign countries, along with any other publications containing information relevant to the invention.
Once the inventor decides to apply for a patent, the inventor can elect to file a provisional patent application or a non-provisional patent application in the case of a utility patent. Only non-provisional patent applications can be made for design patents. All types of patent applications require a filing fee. A provisional application establishes the filing date but is not reviewed by the patent office and automatically becomes abandoned after one year. The advantage to filing a provisional patent application is that it is generally less expensive and is less complex because claims and formal patent drawings are not required. However, black-and-white photographs and/or informal drawings should be included if they are necessary to understand the invention. The term “Patent Pending” can also be used with respect to the invention. However, it must be followed up within a year by a non-provisional application or the invention may become unpatentable. A non-provisional application is a complete application that is examined by the patent office to assess the invention’s patentability.
A non-provisional patent application requires a number of items including the invention’s title, a brief description of the drawings (if any), a detailed description of the invention, claims, an abstract, and an oath or declaration. In addition, it is recommended that the non-provisional application also include a section describing the background of the invention, a description of the prior art, and a summary of the invention. Formal patent drawings complying with the rules of the Patent Office must also be included if they are necessary. The claims are particularly important because they legally define the invention.
Once the inventor has filed a non-provisional patent application, it is examined by a patent examiner. The patent examiner will either issue a notice of allowance indicating that the patent has been granted or will respond with an office action indicating why the examiner believes the patent application does not merit a patent. The applicant is given the opportunity to amend the application at least twice to overcome the examiner’s objections. On average, about two out of every three applications ultimately result in a patent being granted.
Because of the complex rules governing the contents of patent applications, most inventors find it useful to hire a professional to assist them in the patent application process. Two types of professionals are allowed to represent inventors before the United States Patent and Trademark Office. They are patent attorneys and patent agents. Both types have passed the patent bar exam, but the patent agents are not attorneys. As a result, patent agents are generally less expensive, but they cannot litigate patent related issues and cannot assist inventors with obtaining trademarks. The United States Patent and Trademark Office maintains a list of registered patent attorneys and patent agents that is accessible to the public.
It is important to remember that a patent does not guarantee commercial success. A patent merely gives the inventor the right to sue anyone who infringes upon his or her patent. It does not insure market acceptance of the invention, and patent litigation can be expensive and time-consuming. However, patent protection can be critical to ensuring an inventor’s right to profit from his or her idea.