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Obtaining a Patent

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

A patent is a property right or title to an invention for a set period of time, granted by a government authority, in order to prevent other entities from making, using or selling that invention. A patent is different from a copyright, because copyrights apply to specific and original creations, whereas a patent is used to protect ideas, discoveries or inventions.

If you invent something and are hoping to market it or turn it into a business, obtaining a patent to protect your rights to that is definitely advisable. To obtain one, you would need the United States Patent and Trademark Office (USPTO), which is an agency under the United States Department of Commerce, to grant you one. This office is designed to assist the Department of Commerce, sitting President and other agencies with matters involving “intellectual property”, as well as to represent the interests of businesses, inventors and entrepreneurs concerning their corporate products, service identifications, manufacturing process and inventions in general.

The Office is responsible for classifying and preserving patents, maintaining the public record of said patents, and disseminating information regarding patents, such as the Manual of Patent Examining Procedure and training practitioners. When you apply for a patent, this office is in charge of examining applications and granting a patent for applicants who have proven themselves to be entitled to them. It is designed to be a powerful tool and hub of information for strengthening the economy and protecting the interests of corporations and small businesses.

Most patents grant rights to that invention for 20 years from the date that the application was filed. These patents are only valid/effective within the United States and its territories; entities outside of the US are technically at liberty to replicate your invention. However, the import of said invention into the US would still be prohibited under the protection granted by your US patent. Essentially, within the United States the patent grants you “the right to exclude others from making, using, offering for sale, or selling” or ‘“importing” the invention into the United States’.

There are three main categories of patents; design patents, utility patents, and plant patents. A design patent is granted to eligible parties who have invented a novel and ornamental design for an article of manufacture. A utility patent is for inventions or discoveries related to improvements/modifications to machines, processes, compositions of matter, or articles of manufacture. Finally, a plant patent is for anyone who designs, creates or discovers a novel and distinct variety of plant, after asexual reproduction. There actually is a lot of controversy surrounding this last kind; if you are interested, you should look into Monsanto and their patents on crops and their seeds.

The ability of the government to grant a patent is granted in Article I, Section 8 of the United States Constitution; “Congress shall have the power to… promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This is the same clause that gives Congress the ability to ensure other intellectual property rights, like copyrights and trademarks.

For an invention to be eligible for patent, it must be “novel”. What exactly does this mean? First, this means that the invention in question cannot have been available to the public, on sale, previously patented, or otherwise described in a printed publication, prior to applying for the patent. If someone else submits a patent application for the same invention under a different inventor's name and it was filed under prior filing date, your invention would also be ineligible for patent protection.

If you wish to file a patent application, it could be easier and potentially more effective for you to get an attorney who specializes in intellectual property to assist you in this process. However, it is possible to file for an application, successfully, without an attorney representing you as well. If your invention is complex or raises complicated legal issues and implications, it would definitely be advisable for you to seek out a patent lawyer.

When you decide to apply, you should first make sure your invention will be eligible based on the criteria described above. Going along with this, you should do a thorough patent search to ensure that your invention is novel and won't be rejected. Second, you must be prepared with intimate and thorough understanding of your discovery. You must be able to accurately describe all aspects of your invention. So the basic steps for filing for a patent include initially keeping a written record of your invention; record details about the process of inventing, finessing, and testing your invention. Document the process with dates and signature if possible as well; this attention to detail with strengthen the case you make to receive a patent.

You should also be aware that it costs money, even without a lawyer, to file for a patent. So you should assess what the financial/commercial potential for your invention is. Filling for a patent is a business decision; it's not smart to invest a lot of money into it if the product is not going to return on that investment.

Once you have assessed that your invention should be patented, you should prepare and file your patent application through the USPTO. When you do so, you can choose to do the fully-fledged regular patent application (RPA), or to do the less involved (and expensive) process of filing a provisional patent application (PPA). The PPA is not the same as an actual application for a patent, however it does allow you to claim your discovery as “patent pending” and documents your invention should you go for the regular patent. A PPA only costs a fee of $65 for micro entities, $130 for small entities, and $260 for large businesses. You must still file for an RPA within a year of the PPA, but it still buys you some time to raise funds or prepare your real application.


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