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So you've just invented a new device. That's great. You dream of making millions. That's great too. But you want to protect your invention idea from theft. After all, you did the R&D. So how do you protect yourself? You get a patent.
What is a patent? A patent is a form of legal protection that allows the owner of an idea, an inventor, to exclude others from using it without permission for an extended period of time. In other words, you own the right to prevent others from using your idea without your permission. It is a government granted monopoly. Congress enacts patent laws under provision of the Constitution Article I, Section 8. Further, there are three kinds of patents available: utility, design, and plant. There are also two types of utility patent applications -- provisional and nonprovisional. Since 1994 the Patent and Trademark office has received approximately 200,000 patent applications. Most of these are for nonprovisional utility patents. So if you invent something, you have to follow the patent rules in order to get the right kind. You also have to be aware of the two other things: when the patent protection begins, and when it ends. That is your time frame of protection.
Types of Patents
A utility patent is a patent for invention. The utility patent focuses on a process, machine, manufactured item or composition of matter (ideas that have been reduced to practice). Its protection start date depends on when the patent application was filed. If the patent application was filed before June 8, 1995, the protection term is the later of (1) 17 years from the issuance date of the patent, or (2) 20 years from the first U.S. filing date for the patent. If the patent application was filed on or after June 8, 1995, then the term is 20 years from the first U.S. filing date for the patent.
A provisional application establishes a filing date but does not begin the examination process. It provides the inventor with a one-year period to further develop the invention, determine marketability and seek licensing agreements. It also offers a measure of invention protection. But to obtain a patent, the inventor must file a non-provisional application patent within 12 months of the filing date of the provisional application. A provisional application can usually be filed for slightly less money than a regular non-provisional patent application. However, a provisional application must be supplemented by a regular non-provisional patent application within one year of filing. That's the true patent application.
A design patent allows any person who has invented any new and nonobvious ornamental design for an article of manufacture to protect that design. The design patent protects only the appearance of an article, but not its structural or functional features. Design patents in the have a term of 14 years.
A plant patent grants a patent to anyone who has invented or discovered and asexually reproduced 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 have a term of 17 years.
Patent Requirements
Specifically, in order to patent an invention it must pass four tests:
1. First there are five "statutory classes" of things that are patentable and an invention must fall into one of these:
a) Processes
b) Machines
c) Manufactured items (objects made by humans or machines)
d) Compositions of matter, and
e) New uses of any of the above
2. The invention must be "useful". One aspect of the "utility" test is that the invention cannot be a mere theoretical phenomenon.
3. The invention must be "novel", that is, it must be something that no one did before.
4. The invention must be "nonobvious" to "a person having ordinary skill in the art to which said subject matter pertains". This requirement is the one on which many patentability disputes hinge.
The cost of a patent application varies depending on the type. For a utility patent it is between $3,000-$5,000 to file with PTO. For a design patent the cost is about $2,000-$2,500 to file. (This includes Gov.’t filing fee and formal drawings.) And for a plant patent the cost is about $2,000.
If you want to get a patent, you can initiate the process yourself, although this is not usually recommended. The process is tricky, and time consuming, especially the search process, which must certify that the application does not infringe upon someone else's existing patent. Remember that the patent excludes others from using your invention. So if you are applying for a patent, a patent for a similar invention must not exist. Your application will be denied if it does.
Patent law falls into three broad categories. First, there is enforcement of patent rights, which is a matter of federal law litigation. Any attorney who is admitted to practice federal law could do this work. An attorney that does this work would be a called a "patent lawyer."
Secondly, there is litigation over invention and patent ownership. This is a matter of state law. Any attorney admitted to practice state law can do this work and such an attorney would also be a patent lawyer.
Finally, the patent application and its pursuit, which includes writing the application for a patent, counseling the inventor and acting, as the inventor's agent to push the application through the system is the area of a special agent called the patent practitioners. Registered patent practitioners who are attorneys are called "patent attorneys," and those who are not attorneys are called "patent agents." So every patent attorney is also a patent lawyer, but not vice versa.
Warning - It is best to keep an invention strictly confidential, at least until you file a patent application. If the invention is placed on sale, or advertised for sale, or sold, in the U.S., and more than one year passes, the invention is no longer patentable.
A patent search is usually done before the application. However, you do not have to do a search. But assuming you have done a search, and you have found nothing to bar the patent the next step is to write the patent application itself.
A patent application is a legal document when approved is printed as a patent. A patent application must also be complete because it is not permissible to add new material to an application after it has been filed. In the case of utility patents, the application must include a detailed and complete written description of the invention and a set of drawings (if the invention can be illustrated by drawings). The application also includes a set of claims, which are carefully written, single-sentence paragraphs that precisely define what the proposed patent will and will not cover.
The time an application is under review varies. First a Patent Examiner receives the application. Then in mechanical cases, it often takes 8-12 months before an Examiner reviews the application. In some fields, such as electronics, computer software, computer information technology, or biotechnology, the review may be as long as two years.
Success is not guaranteed or easy. The rejection rate for an application is upwards of 95%. Some applications are rejected repeatedly before a patent is issued. Remember that a patent is a government-granted monopoly, and the nature of public policy dictates that no monopoly may be granted unless it is truly warranted by the inventor's creativity. The major focus that the examiner looks at is to make the application as narrow as possible in order to comply with that policy.
An inventor is very interested in protecting the invention, the time, the effort, and money involved in the process. The government is likewise also interested in protecting the inventor's efforts. So the patent process is designed to be long, expensive, and difficult to attain. However, once the patent is granted, the inventor's efforts are protected.
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