What is a Patent?

A patent is a series of exclusive rights given to a person who invents something. Such rights are granted by a government agency. These rights enable the inventor to use or sell the product, usually for a specific number of years. Such rights are expressed in official documentation. They grant the inventor explicit protection for the invention by excluding others from unauthorized use.

Patents are controlled by the government and come in varying forms, including but not limited to trademarks, utility patents, and design patents.

How Do Patents Work?

  • In the United States, and in much of the world, patents are administered on a first-to-apply basis. This means it does not truly matter, for the purpose of your rights, whether you were the first to conceive of the idea.
  • The person who first receives a patent for a concept owns the rights. Long ago, scientists could track their developments and then use that research to prove authorship, but this is an outdated approach.
  • Patents offer an incentive for people to create new things that develop society. An example would be new patents granted to pharmaceutical companies who hope to earn a profit from their discoveries. It is the lack of competition and the sole rights to ownership that make such endeavors profitable.
  • The protection period for patents is 20 years in the U.S. and the European Union and seven years in India.
  • Patent law protects your rights by providing evidence that you are the creator of the product. With this, you may choose to prosecute and receive compensation for infringement. However, such prosecutions are at your own expense. Whether you make money from further development of the patent is up to you.
  • The U.S. Patent and Trademark Office manages patent applications.

Patent Eligibility

If your invention meets the following criteria, you may be eligible to apply for a patent that would give you sole rights to it.

  • It is truly new.
  • It is useful.
  • It is non-obvious or not a common sense object.
  • You are willing to confide all the details of the product to the U.S. Patent Office.

Categories of Patents

Patents in the U.S. fall into one of the following categories:

  • A machine patent is for an apparatus or device with connecting parts, working side by side to generate the intention or function of the object. Examples would dishwashers, fans, or electric blenders.
  • A manufacture patent is for items generated via large-scale manufacturing or wholesale systems, within which they are wholly fabricated. Examples are ceramics, hammers, or chairs.
  • A process patent is issued for items developed in a more raw or inapplicable state and used to carry out large-scale developments. They may be chemical, mechanical, or electrical developments. Additionally, they could be chemical processes that change the effect of something. An example would be laboratory processes or a new type of fiber optic communication.
  • A composition of matter patent covers chemical compounds or mixtures which result in effects that differ from the direct summation of ingredients. Examples include new plastics, drug molecules, or food recipes.

Fields of Patents

An invention in any field on any topic may be eligible for a patent. You might get a patent for a business model, a software product, a biological innovation, or a synthetic chemical. A few of the most recently developed fields include:

Software Patents

The Foundation for a Free Information Infrastructure defines a software patent as "a patent on any performance of a computer realized by means of a computer program."

In recent years, software patents have been particularly popular. With all the programs passed along via the internet, software patenting has become a particularly complex field of law. If you want to patent a piece of software, you must search the area thoroughly to decide whether the product has already been patented.

The search might be extensive. Hiring an expert for this is the best plan, but you should note that the price will be hefty due to the number of patents they will have to review.

To earn a software patent, the product must be a clear next step beyond a past product or a new one. The USPTO and the U.S. court system investigate each matter on a case-by-case basis. Further, patent offices around the world use varying regulations, so software transferred via the internet is not simple to negotiate.

Business Method Patents

If you have come up with a new business model or process, you need a patent to protect it. These patents claim a new way of operating a business. They include e-commerce methods, banking processes, insurance plans, tax policies, and more.

Patent Types

Design Patents

A design patent secures an inventor's rights solely over the visual representation of a product, how it looks, feels, is put together, and so on. A design patent in no way secures rights based on utility or concept. That means that an ergonomic chair, for example, may need a design patent to secure rights to its appearance, as well as a utility patent to protect the unique practical elements.

If you'd like your work to receive a design patent, it must:

  • Be new, different, and have a particular design.
  • Not be obvious or common sense.

Utility Patents

A utility patent protects an inventor's rights for an object that promises to do something. Essentially, any object that claims a purpose requires a utility patent. A chair, an electric blanket, and a bookshelf are all examples of objects that may have a utility patent.

In order for your product to be eligible for a utility patent, it must:

  • Be of an eligible statutory category. That means it is categorized as a process, machine, manufacture, or composition, or it must be a "new use" development. In sum, it must have a purpose.
  • It must be interpreted by others as being useful.
  • It must be new. That means it has to be different from other objects which may seem similar.
  • It must not be obvious or common sense to someone with a typical amount of experience in the field. If it is a toothbrush, for example, it must not be ordinary to someone who already uses one.

Plant Patents

  • To be eligible for a plant patent, you must invent a new plant that is capable of reproducing.

The History of Patents

The U.S. patent system was first established in 1790. Initially, it was mandatory for the proliferation and organization of businesses. In 1799, Jacob Perkins received the first financial patent. His patent was for a product that was able to distinguish counterfeit money from real money.

At first, the U.S. Patent and Trademark Office took the position that in fact, business processes, methods, or strategies could not truly be patented.

In 1980, many internet and software applications were developed to create new ways of doing business. In order to keep up, the U.S. Patent and Trademark Office stopped differentiating between technological methods and business inventions. The categories were merged. This made it possible to patent business processes and models.

In order to consider these creations for registration with the USPTO, the determining factor is the same as it is for utility patents. Is it new? Does it fulfill a function? Is it obvious?

This approach evolved once again in 2001 when the USPTO ruled that a business method invention has to occur via computer to be eligible for a patent. This changed further in 2005 when a federal court stated that many of the method patents from the previous ten years were, in fact, ineligible.

Still, in another case in 2008, a majority opinion held that they were valid.

Presently, business processes continue to adhere to the same requirements as do utility patents.

Patent Statistics

The number of patent applications in the U.S. had increased over the 20th century, as has the number of allotted patents.

  • Number of applications received by the U.S. Patent and Trademark Office in 1963: 91,000.
  • Number of successful applications, with granted patents, in 1963: 48,000.
  • Number of applications received by the U.S. Patent and Trademark Office in 2016: 629,000.
  • Number of successful applications granted patents in 2016: 326,000.
  • Number of successfully granted utility patents in 2016: 298,000.
  • Number of utility patents from the state of California in 2015: 40,000.
  • Number of utility patents from the state of Texas (the state with the second highest amount) in 2015: Over 9,900.
  • Number of utility patents from the state of New York in 2015: 8,400.

How to Apply for a Patent

Are You Eligible?

It's important to know that only the inventor of a product can begin the application process for a patent. If two people invented something together, then it is possible for them to apply jointly.

Anyone applying for a patent for something that they did not create could be condemned with infringement as well as with not having their patent honored. Similarly, just because you have invested in an idea does not necessarily certify you as the inventor, in terms of patent eligibility.

Once you've defined yourself as the inventor, ask yourself this question: Is my object or concept distinct from others, or is it a significant advancement? If so, you want to keep detailed records of your creation process and of the stages you traversed in the development of your work. This helps you enforce your rights and can also help you with your application.

Search By Yourself

The most important step to take before you begin the process of applying for a patent is to do a very thorough search to make sure that your product has not already been patented. Naturally, if it has been, you would need to know. You would certainly not want to waste time developing a product that you could not sell or that may infringe upon the rights of others.

The application process for patents is quite costly, ranging from $5,000 to $20,000 or more. This is another reason to spend time and money doing your homework to make sure that you're not duplicating an existing product.

Initially, it's a good idea to do some research on your own. The internet or USPTO can help, or you can find the closest public library that is a designated Patent and Trademark Depository Library. Such institutions have experienced librarians to help you. You can also search via the IBM patent site. Ultimately, recruiting a patent lawyer or expert technician to help with the search is highly advisable.

Recruit a Professional

It is incredibly important to work with someone reputable to avoid wasting your money and time. Sometimes, this means paying a higher price tag.

Fortunately, UpCounsel has many highly noted lawyers who offer rates lower than those who work exclusively at standard firms. If you need expert patent help, contact one of our lawyers. Such experts can visit the Patent Office search room for you, where the most extensive data can usually be found.

Expect to pay $1,000 or more for a search, but that should always be relative to the value of the end product. If you feel that your creation is highly marketable and is of great value, and if you plan on spending $20,000 or more on the application process, it's reasonable to invest more in your search.

Create and File an Application

Documents must be filled out, reports are to be written, illustrations shuld be created, and details must be supplied to create a thorough application portfolio. Getting a lawyer to help with this is highly advisable.

When you file an application, you will submit a filing fee electronically (or your lawyer will). There are also more filing, search, and examination fees.

You also have to offer a formal declaration stating that you are the truthful inventor of the new or improved item.

Until the patent is approved, you can claim that it is "patent pending." This declares your process openly to prevent infringement and grant you temporary control of how the invention is used.

Get Started With Your Patent

Patent law is complex. Without proper counsel, you place yourself at risk of not having adequate protection, of being sued, and of wasting money on patents that have already been awarded. As always, the ideal way to protect yourself is with education, along with the help of an experienced attorney. UpCounsel lawyers are versed in patent law and are here to advise you on your next steps.

You can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top five percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard and Yale Law and average 14 years of legal experience, including work with or for companies like Google, Stripe, and Twilio.