1. What Can Be Patented?
2. What Are the Different Types of Patents?
3. What Are the Parts of a Patent Application?
4. What Is a Provisional Patent Application?
5. What Are the Steps To Creating an Invention?

Patent basics cover the ins and outs of obtaining intellectual property protection for a unique invention. Patent protection is a federal property right granted to inventors. It prevents others from using, importing, making, or selling the invention for a specific number of years in exchange for public disclosure of the details of the invention.

What Can Be Patented?

In the United States, inventions can be patented only if they are both novel and useful. They must consist of either a composition of matter, manufactured item, machine, or process. Under U.S. patent law, novelty means that the invention cannot have been previously sold to the public, used in public, patented, or described in publication, either by the inventor or by another inventor with a similar invention. Public disclosed inventions are called prior art.

Unlike in other countries, where appearance in prior art prevents a patent from being granted, the U.S. lets inventors apply for and obtain a patent within 12 months of a publication about the invention. This grace period begins on the exact date the information about the invention became publicly available. For example, if an academic journal with an article about the invention is posted online before the print date, the online publication date starts the clock to apply for a patent. Describing the invention to those who have signed confidentiality agreements is not considered public disclosure.

The invention must also pass the usefulness test. This means that the item has a legal purpose and works as described in the patent application.

Finally, patented inventions must be nonobvious. This means the idea could not be easily thought of by a person with typical skill and knowledge in the industry in question.

What Are the Different Types of Patents?

Types of patent protection in the U.S. include:

  • Utility patents, the most common type, are granted for the types of inventions described in the above section. These patent rights are good for 20 years from the date the application was filed.
  • Design patents, which are good for 14 years, protect a novel ornamental design of a manufactured item.
  • Plant patents, also good for 20 years, are granted to those who invent or find and asexually reproduce a new plant variety.

What Are the Parts of a Patent Application?

Most patent applications are comprised of drawings, specification, and claims. Drawings are diagrams or figures that help others understand your invention. These could be screenshots of a software interface, drawings of an object, flow charts, and other types of graphics.

The specification is a detailed description of your invention designed to accompany the drawings. It should be comprehensive enough that a person with ordinary skill in your industry would be able to recreate the invention without ambiguity.

The claims are statements about the components of the invention that make it unique. It's important to construct the claims carefully as they are the only part of the patent application that is legally enforceable. If you describe an aspect of the invention in the other parts of the application but not in the claims, that component is not covered.

What Is a Provisional Patent Application?

Inventors can file a provisional application instead of a standard application. This carries a lower cost and provides an additional year to file the complete patent application. During this period, you can advertise your invention with the term "patent pending."

What Are the Steps To Creating an Invention?

Two legal steps to creating an invention, conception and reduction to practice, have been established by the courts. Conception is defined as the moment when the inventor has imagined a clear picture of the invention. You should document this date by taking careful notes and sketches as you work toward your invention. Keep this information in a lab notebook that has been signed and dated by a witness.

Reduction to practice means that the inventor has made a prototype of the creation and that it works as intended. You should document all experiments and prototypes created during this time in your designated lab notebook. The inventions that have the best chance of qualifying for patent protection have been both conceived and reduced to practice.

If you need help with patent basics, 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.