1. What Is a Patent?
2. The Basics of Patent Law
3. How Do I Know My Invention Is Patentable?
4. Patented Inventions Must Be Useful
5. The Basics of Patent Protection
6. Patent Protection
7. The History and Purpose of Patents
8. Patents vs. Copyrights
9. Using the Patent System
10. What Types of Patent Applications Are There?
11. The Patent Registration Process
12. Dealing with Patent Laws

What Is a Patent?

A patent grants an inventor the exclusive rights to his or her invention. A patent holder can stop other people from selling, manufacturing, producing, or using the invention for a certain period of time. A patent is a form of intellectual property, which means it's something that didn't exist before someone thought it up.

The Basics of Patent Law

The very first patent laws in the United States were signed into law by our first president, George Washington, on April 10, 1790.

Patent law helps protect intellectual property all over the world. It gives inventors a way to protect their creations from unlicensed manufacture, sale, or use by other people. Patents encourage creativity and innovation, and they allow people to make a living from their innovations. Without patent law, there would be nothing to stop people from stealing the work of others.

In the United States, the concept of a patent goes all the way back to the founding of our nation. Article I, Section 8, Clause 8 of the Constitution grants the U.S. government the power to grant patents.

Federal rules and statutes govern the issuance and use of patents. The U.S. Patent and Trademark Office (USPTO) grants patents to inventions that meet specific statutory criteria. There are essentially three types of patents:

  • Utility patents are the most common kind of patent. They cover chemicals, processes, and machines.
  • Design patents are granted to protect the form, appearance or unique design elements of manufactured inventions. This includes the overall design scheme and ornamentation.
  • Plant patents cover the creation and asexual reproduction of new varieties of plants, including hybrid varieties. This applies to plants that are created in a lab and not found in nature. 

How Do I Know My Invention Is Patentable?

For an invention to be eligible for a patent, it has to be both non-obvious and novel. This means that it must be completely unique and different from other inventions in at least one major and important way. Also, it cannot have been sold, publicly used, or otherwise patented by someone else within one year of your patent application filing. 

Your invention must represent a true innovation. This means that it can't be a solution that anyone with reasonable skill in the area could come up with through a basic leap of logic. It has to be an unexpected, surprising, or brand new development. 

Next, your invention cannot be any of the following:

  • Naturally occurring
  • A law of nature
  • A basic truth
  • A mathematical formula
  • An abstract idea

That being said, it is possible to patent the process to use or implement a formula or method. For example, computer software that uses a set of equations to produce a unique result can be patented, as can the rules of a board game.

A few other examples of things that can be patented include the following:

  • Computer hardware
  • Chemical formulae
  • Physical processes
  • Genetically engineered creations (including plants, bacteria and animals)
  • Drugs
  • Furniture designs
  • Medical devices
  • Jewelry
  • Musical instruments
  • Fabric design
  • Actual fabrics

Living organisms can be protected thanks to the landmark court case of Diamond v. Chakrabarty. You can also patent business methods and even man-made DNA. Some things are more difficult than others to patent, which is why hiring an attorney can be very important. 

Patents have been used to protect everything from very complex industrial machinery and computers to such simple inventions as paper clips. 

Patented Inventions Must Be Useful

Another important aspect of a patent is that the invention to be protected must be useful. This means that it has a beneficial purpose and actually performs its intended function. It's all well and good to invent a theoretical machine, for example, but if that machine doesn't work, it's not much good to anyone. 

In general, only one of five types of inventions can be protected by patents:

  • Processes: the means by which material can be treated to create a specific physical change (typically industrial or technical processes).
  • Machines: devices that use energy to get things done.
  • Manufacturing methods: the means by which an article is created.
  • Matter compositions: chemical compounds or other mixtures of ingredients (including recipes for food).
  • Improvements on the above: any change or addition to a known innovation.

The Basics of Patent Protection

Patents, unlike copyrights, aren't automatically assumed upon creation of a new invention. You will need to file an application for a patent. This application has to be filed within a year of public disclosure of the invention. That means if you announce it, publish it, or offer it for sale, you have one year to file an application. 

Filing an application usually requires conducting a preliminary search to be sure that there aren't any substantially similar inventions already under patent. These searches can cost anywhere from $200 to thousands of dollars if you hire a professional. You can use your local public library, the USPTO site, the IBM patent site, and other public services to search on your own. However, this approach is not recommended because you can easily miss something. It's better to let a professional handle the search.

After this, you and your attorney will create and submit your application to the USPTO. Again, for this process, it is best to use the services of a patent attorney or patent agent instead of doing it yourself. Getting this qualification requires certain technical and scientific degrees.

The application will then be reviewed by a patent examiner. After this, if your patent is granted, you'll have to pay an additional fee, and the government will publish a description of the invention. This description will include the following:

  • Background information, called "state of the art"
  • Any technical issues that the invention solves
  • A detailed physical description of the invention
  • An explanation of how the invetion works
  • Any appropriate illustrations of the invention

If your patent is granted, you'll have protection for 20 years for a utility or plant patent or 14 years for a design patent. You will have to pay maintenance fees to keep the patent active for the full term. When the patent expires, the invention is available for anyone to manufacture and use. This is how generic drugs come to market — after the initial patent expires.

Patent Protection

Gaining a patent gives you exclusive use of your invention. You wil have the right to sell it, manufacture it, or make use of it in any other way. You also have the right to bar or license others to make use of it, offer it for sale, or manufacture it. In essence, you get a temporary monopoly on the product. 

If you think someone has used your invention without your permission, you can sue them. Damages can include patent costs, attorney and court fees, damages based on reasonable royalties, and an injunction to stop them from using the invention. Usually such cases are settled out of court. 

Patent protection granted in one country doesn't necessarily apply in other countries. You may need to file a patent application in every country in which you require protection. This includes payment of applicable fees in each jurisdiction. In most countries, however, you will need to actually use the invention in a commercial sense. 

The History and Purpose of Patents

Historically, the purpose of having a patent system is to encourage innovation. By granting each inventor exclusive use over their invention, other people are motivated to create their own inventions. Patents also encourage inventors to disclose their inventions. This spurs further innovation as others improve on existing works in new and innovative ways. It also makes it easy for othrs to use the invention once the patent expires.

James Madison referenced patents in Federalist Paper no. 43. As the Father of the Constitution, Madison was very big on the rights of inventors. He even got Thomas Jefferson on board with the idea. These rights were deemed so important that they were included in Article I of the Constitution. This article gives Congress the power "to promote the progress of science and the useful arts." In this context, "science" refers to copyrights and "useful arts" refers to patents. 

This is one of the few areas of the Constitution that specifically grants powers to Congress, as opposed to limiting them. It does, however, place limits on these granted rights. For example, Congress can't grant an unlimited monopoly on an invention.

Later, Giles Sutherland Rich authored the 1952 Patent Act, further cementing and defining how patents work. Some notable court cases have further defined, expanded, limited or added to patent law. These include the following:

  • Kewanee Oil Co v. Bicron Corp (1974)
  • Mazer v. Stein (1954)
  • Hotchkiss v. Greenwood, and Universal Oil Products Co v. Global Oil Refining Co (1944)

These cases interpreted such aspects as encouraging individual efforts through personal gain, the requirement for non-obviousness, the positive effects of innovation, and the time limits on patent protection. 

A monopoly granted through a patent allows inventors to recoup the money they invested in an invention and profit from their work. This in turn allows them to continue to innovate, driving progress forward.

You can enforce your patent by refusing to let others use the invention (as is often done with drugs). Alternatively, you can charge licensing fees to allow others to produce and use it. Either can be a good business strategy. 

Patents vs. Copyrights

Patent protection is far stronger than copyright protection. While copyrights protect the expression of an idea, it doesn't defend against someone else coming up with a new way to implement or express that idea. Copyrights don't require a "usefulness" aspect, and they last for a very long time — up to 70 years after the death of the author. A copyright also allows for things like fair use, first sale, and other limitations.

Copyrights also have no requirements regarding qualification of the artist's merit. Finally, to be copyrightable, the creation has to have some feature that's separate from utility-based features. 

Patents, on the other hand, offer complete and absolute protection over the physical manifestation of an idea and the processes that make it work. If someone else creates a substantially similar invention, you can sue them for patent infringement.

Using the Patent System

Patents can be used to control who creates, distributes, and uses your invention. However, it can be exceptionally expensive to apply for patents, especially if you're doing so in several countries. Because of this, only large companies tend to file for patents in mutliple countries. Individuals and small businesses usually only apply in their home territory, if they apply at all. 

You can also use your patent as a platform for bargaining. If, for example, you want to use someone else's invention, but they charge high licensing fees, you can negotiate an exchange of licenses. Patents can also be an important benchmark in valuing your company and in gaining venture capital. The patent system affects all aspects of business. 

What Types of Patent Applications Are There?

There are four basic types of patent applications. These include the provisional application and three types of non-provisional applications: the utility application, the design application, and the plant application. A provisional application (PPA) never matures into a full patent, but serves to buy you time while you pursue your full application. 

A provisional application basically buys you a place in line for one year and proves that you were the first to file for a patent. It also allows you to use the "Patent Pending" label on your invention. With a provisional application, you can start to use your item commercially while putting potential infringers on notice. 

A non-provisional utility application is your formal application to patent your physical invention. Design and plant applications are non-provisional applications to obtain design patents and plant patents, respectively. Each has its own specific requirements, which your attorney can help you to work out. 

You can also file international applications if you are going to seek patents in territories other than the United States. 

Many people choose PPAs because they are much more affordable than a full utility patent. Applying for a full utility patent often requires hiring an attorney. The standard PPA fee for a large business is $260. Small firms must pay $130, and a micro-entity will pay $65.

The Patent Registration Process

Registering a patent requires filing with the appropriate office where you want protection, be it national (USPTO), international (PCT) or regional (EPO) protection. Your application must identify you as the inventor, present a complete, clear, and full description of the invention you're patenting, and give a precise indication regarding your claim — the degree of protection you're requesting. 

The description must be clearly understandable by anyone with general knowledge of the subject matter. If you're filing in another country, you will need an address in that country for someone who holds power of attorney for you. You'll also have to pay various fees and likely have your application notarized. 

Your application will then be examined by authorities in the patent office where you are seeking protection. This process can differ from country to country. If the patent is denied, you will have the chance to address challenges and re-apply. After your application is approved (which can take a long time), you get paperwork that verifies your patent and lists the date from which your protection begins. 

Dealing with Patent Laws

Patent laws are essential to our intellectual property protections. They help to encourage innovation and progress in technology, science and the arts, and have been vital to society ever since the drafting of the Constitution. However, the world grows increasingly complex, and patent law gets more complex with it. 

Getting a patent for your invention can require specialized skills, knowledge and experience. There are many pitfalls to avoid. For instance, it can be easy to miss substantially similar inventions that are already under patent or have patent pending status. If you're seeking to protect an invention, you need the right legal help.

To get started, post your legal need on UpCounsel's marketplace. When it comes to securing an outstanding patent attorney, UpCounsel maintains a complete database of the very best in the business. Our attorneys come from institutions like Harvard and Yale, and we accept only the top five percent in their fields. These lawyers have an average of at least 14 years of experience. They have represented major corporations like Google, and they can help to protect your rights as well. Logon to our site and give it a try today.