Patent Law 101

Patent law 101 refers to certain protections (patents) under the law for an invention. A patent is a type of intellectual property that protects inventions that are:

  1. New, meaning that there is nothing else exactly like it already on the market
  2. Useful
  3. Not obvious, meaning that there have to be enough significant differences between your invention and something else already patented, or on the market, where those differences would not have been obvious to someone working in that same area of industry or technology
  4. Non-tangible things, such as business practices or marketing strategies may also be patented.

Obtaining a patent on something you have created is a sure-fire way to protect it and yourself from someone else stealing your idea. To obtain a patent, you can either take on the process yourself, or hire a patent attorney

Types of Patents

As with most things, there are different types of patents, so it is important to know which one is the best one for you and your invention from the US Patent and Trademark Office, or USPTO:

  1. Utility patents, which cover products and processes
  2. Design patents which are intended to protect ornamental detail ( Coca Cola logo)
  3. Plant patents, which will protect any type of new plant you create

A utility patent will further protect the following:

  1. New and useful process (new marketing strategies or other business practices)
  2. Composition of matter
  3. Manufacturing protocols
  4. The functional aspects of your invention

It is worth noting that the patent office is not responsible for the quality of your invention, only the functionality as spelled out in the patent application.

A design patent will further protect:

  1. Non-functional aspects of your invention
  2. Any visibly noticeable design characteristics of your invention that are intended to be strictly ornamental

Plant patents are designed to further protect:

  1. Any new variety of plant that is not a tuber (potato being a common example of a tuber) or found in an otherwise non-cultivated state

Essentially, the things that can potentially obtain patents are:

  1. Devices
  2. Processes
  3. The appearance of an otherwise manufactured item
  4. New type of plant

What Cannot Be Patented

Of course, there are then going to be those things which cannot be patented. These include:

  1. Abstract ideas
  2. Works of art
  3. Obvious solutions
  4. Anything created for illegal or illicit purposes
  5. Any type of invention that may have been revealed more than one year prior to filing the patent application

It is also worth noting that while you can technically patent a broad range of inventions, there are limits, to keep any one individual from being able to create a monopoly on intellectual property.

Steps to Take

So, you have your brilliant invention and you know you need to protect it. You are now ready to take the necessary steps to obtain a patent. The following are required to obtain a patent:

  1. Register with the Patent Office (USPTO) as soon as you are able
  2. Under the America Invents Act, the first person to file for the patent is the one who will get it, so if you know of someone who has an idea similar enough to yours that it could create an issue in obtaining your patent, you will want to move quickly
  3. Keep in mind that in some areas, if you publicly disclose your idea prior to obtaining the patent, you may lose the ability of filing for the patent; in the United States, you technically have up to one year even after public disclosure
  4. Ensure that your patent application includes all of the required information about your invention, including specifications, photographs, blueprints and sketches
  5. It may be best to hire an attorney or patent agent to help you through the process, which can sometimes be quite complicated. Additionally, should there be disputes regarding your patent application, having an attorney will ensure that you stand a better chance of being victorious, later on
  6. Your patent application will be reviewed by the USPTO and a decision will be made as to whether or not it is accepted or denied
  7. If, for some reason, your patent application is not accepted, you will have the right to appeal that decision

If you need help with patent law 101, or you have questions regarding patent specifics, 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.