Key Takeaways

  • Manufacturing patents protect unique manufacturing methods, designs, or processes that add value to industrial production.
  • The patent filing process for manufacturers often begins with a provisional patent to secure an early filing date before completing a full utility application.
  • Manufacturers must evaluate whether to patent a process or maintain it as a trade secret, considering market competition, disclosure risks, and enforcement challenges.
  • Timing is critical — filing before public disclosure or commercialization ensures maximum protection and preserves international rights.
  • Patent attorneys guide manufacturers through patent strategy, licensing, and enforcement, helping decide between exclusive or non-exclusive rights.
  • Legislative trends emphasize greater transparency in patent ownership and licensing disclosures.

Manufacturing Patents

Manufacturing patents are patents that relate to the methods of manufacturing, generally referred to as utility patents or, in some cases, design patents. If you invent a product or a process, patenting it is just the first step. In the U.S., a patent is an exclusive right given by the United States government to an inventor.

The inventor can then use, sell, license, or manufacture the invention for a certain time period. Essentially, it is the conferring of a privilege or right. The United States Patent and Trademark Office (USPTO) is the arm of the United States government who handles the granting of patents.

A patent is considered a property right to an invention that can have a monetary value or not. Patent law in the U. S. is centered on statutes in Title 35 of the U.S. Code, which includes the Patent Act of 1952.

Steps in the Patent Filing Process for Manufacturers

The patent filing process for manufacturers often begins with assessing the invention’s commercial and technical potential. The general steps include:

  1. Conduct a prior art search: Identify existing patents or published applications to confirm your process is unique.
  2. Prepare a provisional patent application (PPA): This temporary filing secures an early priority date and allows “Patent Pending” status for 12 months while refining the invention.
  3. Draft a non-provisional (utility) application: A full application must be filed within one year of the provisional filing to maintain the original priority date.
  4. Work with a patent attorney: Drafting claims that properly describe the manufacturing process is complex; professional guidance ensures compliance with USPTO standards.
  5. Monitor and respond to Office Actions: Examiners may request clarifications or amendments during review. Timely, precise responses are crucial to approval.

Filing early can prevent competitors from securing similar patents and strengthen your market position. For international manufacturers, filing under the Patent Cooperation Treaty (PCT) within 12 months preserves global rights.

Understanding the Types of Manufacturing Patents

Manufacturing patents generally fall under utility patents or design patents. A utility patent protects new processes, machines, or methods of production that improve functionality, while a design patent protects the unique ornamental design of a product. For manufacturers, a utility patent is typically most relevant, as it can cover the specific steps, machinery, or formulas used in production. For example, a new method for improving material strength or reducing production costs may qualify for protection under 35 U.S.C. §101–103.To qualify, the manufacturing process must be novel, non-obvious, and useful. This means it must differ significantly from prior art, not be easily derived by others in the field, and provide a tangible benefit to production.

Who Can Apply for a Manufacturing Patent?

Do you wonder who can apply for a patent? An inventor may fill out an application for a patent and be successful. Of course, there are exceptions. Inventors can contract with others who may manufacture their inventions and sell them. After a patent is conferred, an inventor may license his invention to others in exchange for a percentage of the profits, called royalties.

Some inventors do not patent their new manufacturing process but instead attempt to keep it secret. Unfortunately, this can backfire if a competitor beats them to the punch and patents the process before you do. If this happens, the competitor (who may have invented it first but failed to patent it) can be sued by the competitor, who did patent the process, for infringement. Some other issues with manufacturing patents include

  • It can be expensive to patent a manufacturing method.
  • It takes a long time to patent any invention.
  • Manufacturing methods can be difficult to differentiate.
  • Enforcement of the patent is up to the patent holder, and it can be difficult to police.

Trade Secret vs. Patent: Choosing the Right Protection

Manufacturers must decide whether to file a patent or protect the process as a trade secret. A patent offers exclusive rights for 20 years, but requires public disclosure of the process. A trade secret, by contrast, remains private indefinitely but is lost once revealed.

When to patent:

  • The process is easily reverse-engineered or observable in the end product.
  • Competitive advantage depends on exclusive rights.
  • Investors or potential buyers require patent protection for valuation.

When to keep it a trade secret:

  • The process is complex and not easily duplicated.
  • Confidentiality can be maintained internally.
  • Disclosure could benefit competitors without adequate return.

This decision should align with the company’s business goals and enforcement capabilities.

Patent and Intellectual Property Attorneys

Once you have decided to go ahead and patent your manufacturing method, it’s time to procure some experienced help, in other words, an intellectual property attorney. These attorneys are also called patent lawyers. A professional intellectual property attorney can help with the patent application and process. 

Another decision you need to make is whether to license your patent or manufacture it yourself.  This is another area where an experienced IP attorney can help. Drafting your licensing agreement and negotiating the terms are all within their skill set.  You may wonder what a licensing agreement entails. It is the roadmap for any upfront payments, the number of royalties paid, the timing of royalty payments, and infringement liabilities.

A license doesn’t have to be an exclusive license. An attorney will also help you decide whether to grant exclusive or non-exclusive licenses. Non-exclusive licenses, much as their name implies, are with more than one company.  While the owner, or licensor, still retains ownership of the patent, an exclusive license transfers manufacturing rights to the licensee.

An exclusive license also gives the right to sue for infringement to the licensee. Often, an exclusive patent license has a time limit. A qualified patent attorney can help you with all of these issues and reduce the likelihood that you have unintended consequences in the long term.

Licensing and Commercialization of Manufacturing Patents

Once a manufacturing patent is secured, manufacturers can license their technology to other companies for royalties or sell the patent outright. Licensing agreements should clearly define:

  • The scope of use (exclusive or non-exclusive rights)
  • Royalty structure and payment schedule
  • Quality control and performance standards
  • Infringement enforcement responsibilities

Manufacturers who lack production capacity can profit through licensing while retaining ownership. Conversely, large manufacturers may license patents from smaller inventors to improve production efficiency or enter new markets. A patent attorney can assist with negotiating fair terms and ensuring the agreement complies with U.S. contract and IP laws.

Timing and Strategic Considerations for Patent Filing

The timing of a patent filing is crucial. Under the America Invents Act, the United States operates on a first-to-file system, meaning the first inventor to file—not to invent—secures rights. Manufacturers should file before any public disclosure, sale, or demonstration of the process to preserve patent eligibility. In most countries, public disclosure before filing invalidates rights altogether.

Filing early also provides:

  • Priority over competitors who may file similar inventions later.
  • Investor confidence, demonstrating proactive intellectual property strategy.
  • Licensing leverage, as early patents often form the basis of partnerships or acquisitions.

In many cases, a provisional application is a cost-effective way to secure a filing date while continuing development or seeking funding.

What Laws are On the Horizon in Patent Law?

Confidentiality has become an issue in patent ownership. Congress has recently sought to require increased openness around who owns a patent. There have been bills recently introduced that would require increased visibility into patent rights. This may include a requirement of additional licensing disclosures.

The complexity of some licensing agreements obscures individual licenses; they may not even be mentioned. The agreements are designed so that even parties to the license don’t necessarily know what exactly is licensed. While Congress and the courts may wish for more transparency, they may find it difficult to achieve that goal.

Emerging Trends in Manufacturing Patent Policy

Recent legislative and industry trends are reshaping how patents impact manufacturing.

  • Transparency requirements: Lawmakers are pushing for greater disclosure of patent ownership to prevent “patent trolling.”
  • Artificial Intelligence (AI) and automation: The USPTO is evaluating how AI-generated inventions fit within existing patent frameworks, affecting automated manufacturing systems.
  • Global harmonization efforts: International alignment through the World Intellectual Property Organization (WIPO) continues to simplify cross-border patent enforcement.
  • Sustainability-driven innovation: Manufacturers developing eco-friendly or energy-efficient processes are increasingly leveraging patents to attract ESG-conscious investors and government incentives.

Manufacturers should stay updated on these developments to protect their competitive advantage and ensure compliance with evolving laws.

Frequently Asked Questions

1. What types of patents can protect a manufacturing process? Utility patents protect new and useful manufacturing methods, while design patents cover the aesthetic aspects of manufactured products.

2. How long does a manufacturing patent last? A U.S. utility patent typically lasts 20 years from the filing date, provided maintenance fees are paid to keep it active.

3. Should manufacturers file a provisional patent first? Yes, a provisional patent application offers early protection and a “Patent Pending” status while you refine the invention before full filing.

4. Can a manufacturer patent an automated or AI-driven process? Yes, if the process is novel and not obvious. However, inventorship issues may arise if AI contributes to the invention, so human oversight is necessary.

5. What happens if a manufacturing process is disclosed before filing? Public disclosure before filing can void patent rights in most countries. In the U.S., there’s a one-year grace period, but filing early is best practice.

If you need help with a patent or any legal need, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5-percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law, and average 14 years of legal experience, including work with, or on behalf of companies like Google, Menlo Ventures, and Airbnb.