What Does a Patent Do: Everything You Need to Know
A patent gives the patent holder exclusive rights to an inventive process or product, granted by The United States Patent and Trademark Office (USPTO).13 min read
What Does a Patent Do?
When asking "what does a patent do," remember that a patent gives the patent holder exclusive rights to an inventive process or product. The United States Patent and Trademark Office (USPTO) grants these rights to inventors who have created a new way of doing something or provided a technical solution to a problem.
To obtain a patent, an inventor must provide information about the invention in a patent application, which is then disclosed to the public. Once granted a patent, the patent owner can give permission to license the invention at his or her discretion. The owner can also sell the rights to the invention, transferring patent ownership to the buyer.
After granting your patent, the USPTO will send your patent issue in the mail. It will feature the USPTO seal and be signed by the Commissioner of Patents and Trademarks or another U.S. Patent Office official. A printed copy of the invention's drawings and specifications is included in the patent forms.
When a patent expires, which is generally 20 years from the original application filing date, protection on the product or process ends, and the invention enters the public domain. At this point, anyone can commercially produce or sell the invention without violating patent law.
Patents can be granted for any type of invention ranging from a new kitchen utensil to robotics technology. Chemical compounds and other processes can also be patented. In many cases, a single invention may require multiple patents due to the various parts that go into making a new product.
Why Is a Patent Important?
A patent gives the patent owner the right to decide who may or may not use the patented invention during the protection period. While the inventor owns the patent, no one else can commercially manufacture, distribute, export, or sell the invention without the owner's permission.
Essentially, patents are territorial rights. They are only applicable in the region or country in which the patent application has been filed and granted. Therefore, inventors may want to consider applying for patents in other countries where the invention may be sold or manufactured.
Patent laws are enforced in a court of law, which has the legal authority to stop patent infringement. When you own a patent, you know you alone have rights to your invention and can legally pursue anyone who steals or copies your product.
However, the responsibility for identifying, monitoring, and acting against patent infringers lies with the patent owner.
Patented inventions have been useful in every aspect of human life from plastics and microprocessors to electric lighting and ballpoint pens. Patents give inventors incentives for their innovation, allowing them to reap financial benefits without competition for a certain length of time.
Patent information is also useful in the public domain. Once a patent expires, competitors can commercialize these technologies and offer them at competitive rates. Patents also give competitors incentives to look for fresh solutions to problems and essentially "invent around" a patented invention. The result is improved quality of life and a more technologically capable society.
Reasons to Consider a Utility Patent
Most patents are utility patents, although other types include plant patents and design patents. Utility patents are legally defined as "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof."
Utility patents protect new systems, machines, and other handy inventions, making them one of the most valuable forms of intellectual property. However, filing a utility patent can be expensive, and many individual inventors find it difficult to come up with the money needed to protect their intellectual properties.
Patents are essentially teaching documents in that inventors disclose how inventions work to the public. As such, a utility patent application has several formal requirements and multiple sections. When you prepare a utility patent application, it's always a smart idea to hire a patent lawyer to complete the task for you.
To receive a utility patent, your invention must pass four tests:
- Statutory-class test — the invention must be reasonably classifiable as a process, machine, manufacture, composition or a "new use" of any these classifications
- Utility test — the invention must be considered useful
- Novelty test — the invention must have a feature that makes it different from previous inventions and it is unknown to the public
- Non-obvious test — the invention's novelty must not be obvious to someone with ordinary skill in the area of the invention.
To obtain a utility patent, you will first need to perform a patent search to see if any similar designs exist. This step is critical and can save you thousands of dollars in case your invention isn't unique, but you attempt to patent it anyway.
You can hire a professional patent searcher or patent attorney, who will go through the most current information available. If you prefer to hire a professional patent searcher, check listings in the Washington, DC, area. These professionals will go to the PTO search room for the most accurate results. Keep in mind, though, that this option is expensive, with average fees for searches starting at $200.
To do your own search, go to the nearest public library that's designated as a Patent and Trademark Depository Library. The librarians on staff can assist you in your search. You can also search online on the USPTO website or perform a patent search on the World Intellectual Property Organization's website. Another online resource is the IBM patent site, which allows you to narrow your search further than the USPTO site, and also shows drawings of patents.
The Patent Process
When filing a patent application, it's important to understand the process, which looks a bit like this:
- The inventor completes an invention disclosure form with a description of the invention and other pertinent information. This is generally done with an attorney's help.
- The patent attorney performs a patent search to reveal any similar inventions. You can also do your own search at this stage.
- After failing to find similar inventions, your patent lawyer can prepare and file the application. You now enjoy the "patent pending" status on your invention.
- The USPTO Patent Examiner reviews the applications and performs a patent search.
- The Examiner issues an "office action," which might be a rejection.
- Your patent attorney can reply to any office action by modifying the application. At this point, you can add any additional information to the application, making it as complete as possible.
- Once the Examiner is satisfied, the patent is issued upon payment of the issue fee.
What Does It Mean to License a Patent?
By licensing a patent, a patent owner gives permission to another individual or company to produce, use, or sell the product in question. All terms must be agreed upon by the patent owner and licensee, including the type and amount of compensation.
A patent owner may want to grant a patent license to any third party for several reasons. For example, not all patent owners have the required manufacturing facilities to produce the product. In this instance, the patent owner licenses the patent to an organization with the production facilities in exchange for royalty payments.
Another example is when a patent owner wants to focus on a specific geographical market. He or she may consider licensing the patent to a third party with interests in a broader geographical range. These types of licensing agreements are beneficial for consumers and build a mutually beneficial relationship for both the patent owner and the other parties involved.
What Could Happen When You Patent an Invention vs. When You Don't?
A patent grants you the exclusive right to keep other people from making, using, or selling your invention in the United States or from importing the invention into the country. You will still need to pay your patent maintenance fees for the duration of the patent, but you'll enjoy exclusive rights to use and license your patent as you see fit.
Remember, patent law focuses on the "right to exclude," which means it keeps others from making, using, selling, or importing an invention. It doesn't give you the right to make, use, sell, or import the invention, which anyone in the United States is already free to do.
A patent doesn't give the patent owner unlimited rights. Just because someone owns a patent doesn't mean he or she can participate in illegal activities. Patent owners can't infringe on the prior rights of others or violate federal antitrust laws such as pure food and drug laws. For example, new baby products are often patented without meeting safety regulations. Getting the patent doesn't automatically mean you can market the invention; it merely keeps others from taking advantage of it.
Obtaining a patent is a smart decision when you've created a noteworthy invention, but the process can be difficult. Due to the complexities associated with patenting an invention, some individuals choose to forego the patent process. You need to ask yourself if the risks of not patenting your invention are worth it.
In reality, most patents do not make their inventors money. Estimates show only 2 to 10 percent of patented inventions have enjoyed financial gains, and that percentage is largely reserved for top companies that produce innovative products in an existing market. No more than 2 percent of individually patented inventions are viable moneymakers.
You may be able to find out whether your invention will make money through test marketing. However, you only have one year after the first publication, public use, or sale of a product to apply for a patent on it. Furthermore, someone else could apply for a patent before you.
The prospects of earning royalty income and protecting an invention you worked so hard to create may be reason enough to file for a patent. Instead of asking yourself whether you can get a patent, ask whether that patent would be a worthy investment. After getting a patent, will you be able to prevent others from making, selling, importing, or using your invention?
Frequently Asked Questions
- Am I eligible for a patent?
To qualify for a patent, you must have a novel invention that's new and non-obvious. A novel item is something nobody has invented before, and it's only non-obvious if it incorporates a creative leap beyond existing technology instead of an obvious next step.
- What do I need to include in my patent application?
All patent applications must include background information on the invention and the nature of any technical problems it solves. You must also provide a detailed description of the invention and how it works, including illustrations when appropriate.
- What can be patented?
Utility patents include machines, manufactured items, processes (methods), compositions of matter (chemicals), and any related improvements.
Design patents cover the appearance of useful objects, not their function or construction.
Plant patents cover certain plants.
- Can I patent anything?
No. There are several restrictions on what you can patent. These restrictions include human beings, inventions solely used for atomic weapons, scientific principles, naturally occurring things, printed matter arrangements, mathematical algorithms, and purely mental processes.
An invention must be reasonably classified as a machine, process, composition, manufacture, or a "new use" in the statutory-class test. It must also be considered useful, novel, and not obvious to anyone with ordinary skill. Only after passing these tests can the invention be considered patentable.
Since the Patent Act went into effect in 1952, methods of doing business were not considered patentable. In 1998, however, the State Street Bank case decided that not only were methods of doing business patentable, but that they always had been. The decision resulted in a flood of patent applications pertaining to business methods. The 2005 case In Re Lundgren went even further, which patented a method for paying managers.
In recent years, courts have been limiting the scope of patent-eligible methods. For instance, the Bilski case at the lower court level ushered in a "Machine or Transformation" test. This test stated that in order to be patentable a method must be tied to a machine or affect a transformation of some sort. The Supreme Court decided in 2010 that the "Machine or Transformation" test is acceptable, but that it is not the only exclusive test. Other methods that don't claim abstract concepts might also be patentable. Following this ruling, the USPTO and method applicants are trying to determine the exact limits of the ruling, and more court cases will be needed for clarification.
- Can I patent my app?
Patenting an app depends on which element of the app you wish to protect. For example, a feature or technical idea relating to the app can be protected by a patent. You may be able to obtain a patent on the software that runs the app, depending on national law and whether it has certain technical features. The technical idea must be patentable, and it could take years to get a patent. Another possibility is that the software could be protected by a copyright.
Elements of your app not protected can be freely used by competitors. For logos and signs contained within the app, you should apply for trademark protections. Elements protected under copyright include artistic works, musical works, audiovisual works, and fine art and photographs. Industrial design patents can protect layouts and graphical objects.
- Does a patent give me a monopoly over intellectual property rights?
The term "monopoly" is misleading in terms of patent law. It's defined as "the exclusive possession or control of the trade or supply in a service or commodity." A monopoly only exists if there is a market for the product, and in the case of new products, you will have to create that market. Many patents could never possibly have a market and therefore cannot be considered to produce a monopoly.
- Does a U.S. patent cover foreign countries?
No. You can stop others from making your invention overseas and selling it here, or vice versa, but you cannot stop them from both making and selling it in foreign countries. To obtain patent coverage in other countries, you need to file your patent application in each of the countries. The application will be examined and issued in each country separately.
There is no such thing as an "international patent," although "regional patents" exist in Europe, the former Soviet Union, and certain countries in Africa.
To claim the benefit of your U.S. filing date in other countries, you must file your foreign patents within a year of your U.S. filing date (or within six months for design applications). Keep in mind that, unlike the U.S., most countries do not have a "grace period" for publication before filing the patent application. As such, if you had described your invention before filing your U.S. application, you could not get a patent in those countries.
The Patent Cooperation Treaty (PCT) allows Americans to file an "International Application" in the U.S. Patent Office. This reserves your right to file in many foreign countries for up to 30 or 31 months from your first filing. Even so, you must eventually file separately in each country where you want protection.
The rules on what is patentable vary from country to country, so do your research. For example, "business methods" are often patented in the United States, but they are not patentable in most countries in Europe. Most countries have restrictions on medical procedure patenting, as well.
- Can someone else make small changes to my invention to avoid the patent?
It depends on how broad the patent is. If the invention is new, there aren't likely to exist any equivalents. Talk to a legal representative regarding this possibility if you're worried about competitors working around your patent.
- Can I patent my invention but keep some parts a secret?
No. The price of obtaining a "patent monopoly" is fully disclosing how the invention works and how to recreate it. The downside to any patent is that your trade secret is no longer a secret.
- Can I discuss my invention with a potential investor before filing a patent application?
You should file a patent application before telling anyone the details of your invention. Typically, any invention made public before filing an application is considered prior art. The definition of "prior art," however, is not the same at the international level. In some countries, it refers to any information which has been made available to the public through written or oral means. In these countries, disclosing the details of your invention before filing a patent application can prevent you from getting a valid patent. Still, some countries offer a grace period between six and 12 months that safeguards applicants who disclose their inventions before filing.
If you must discuss the details of your invention before filing a patent application, you should ask the other party to sign a confidentiality or non-disclosure agreement. In general, you should apply for patent protection as early as possible when seeking financial support for an invention.
- Why was my patent corrected?
The USPTO may issue a certificate correcting a clerical error without charge to the patent owner. This can occur when the Patent Office's records don't match the printed patent. Since these are mostly typographical errors, they may be nothing to worry about.
If a patent is defective, however, the patent owner can apply for a patent reissue to replace the original for the remainder of the patent term. Anyone can file for a patent re-examination, although there is a fee.
- How long will my patent last?
The duration of a patent depends on the type of patent. Utility patents are protected for 20 years from the date the USPTO accepts the application. Design and plant patents only extend for 14 years. When you file the application, your invention will gain the status "patent pending."
- What happens after a patent expires?
Once a patent expires, anyone is free to produce, use, sell, or import the invention without the patent owner's permission.
- Can I renew a patent?
No. Patents cannot be renewed after the expiration date. Once the patent expires, it enters the public domain.
- Can I extend my patent term?
In general, no. Congress allows certain patent terms to be extended, but these are typically reserved for patents requiring Food and Drug Administration testing and approval, which can use up much of a patent term.
- What is the difference between a utility patent and a design patent application?
A utility patent application requires the inventor to thoroughly explain how the invention works. The inventor must also discuss alternative ways to make the invention in enough detail so someone else in the field can reproduce the results after the patent expiration.
Design patents protect the appearance or ornamental design of an invention, but not its structure or operation. Design patent applications only require drawings of the design and a limited amount of text.
A utility model can be a suitable alternative to a patent protection if you've improved an existing product, but that improvement is not inventive enough to be considered patentable. This option, however, must be available in the country in question. A company may want to keep its innovations as trade secrets, but it must take sufficient measures to keep the information confidential.
Another strategy is simply disclosing the idea, which is commonly known as defensive publication. Doing so would ensure its place in the public domain. Carefully consider this strategy, however, since disclosing the invention before filing a patent application can limit your chances of obtaining patent protection.
- What is a patent claim?
When an inventor files a patent, he or she receives a claim. This claim gives the inventor the right to prevent others from profiting from the invention. Patent claims discuss the essential elements of the invention, including any parts involved in its makeup.
A patent claim offers proof that your invention is novel and non-obvious, having never been patented before.
- Who owns the rights to a patent if an employee invents a new product or process for the company?
In most countries, products or processes invented by employees belong to the company or enterprise, not the individual inventor. To avoid possible disputes, employers should specify intellectual property ownership issues in employment contracts. Depending on the case, an employee may be entitled to compensation for his or her invention, and the employee will always retain the right to be mentioned as the inventor.
- What if my patent gets rejected?
Rejection hurts, especially when you've invested thousands of dollars in the process. You may be able to amend your patent claims to work around the rejection.
For legal help in patenting your invention, post your job on UpCounsel's marketplace. Our lawyers are among the top 5 percent in their profession with educational backgrounds from such law schools as Yale Law and Harvard Law, and average 14 years of legal experience.