Protecting Your Business and Innovations through Patents
What is a patent?
A patent is a document issued by the federal government (through the U.S. Patent and Trademark Office) that allows the owner to exclude others from making, using, selling, offering for sale, exporting or importing the invention as claimed. Invention categories include any process, machine, manufacture, or composition of matter, or any new and useful improvement of any of these categories, as well as the non-functional appearance of an article of manufacture.
What is the duration of a patent?
The duration or term of a patent varies depending upon the type or form applied for and issued:
- a utility patent (protecting arrangement or function) and a plant patent each last for 20-years as measured from the filing date;
- a design patent lasts for 14-years from the date of issuance if filed before May 13, 2015, or 15-years from the date of issuance if filed after May 13, 2015.
NOTE: a utility patent is subject to three maintenance fees (due at 3.5-4 years, at 7.5-8 years, and at 11.5-12 years, as measured from the issue date).
What are the requirements to get a patent application issued as a patent?
To thoroughly answer such a question would require volumes of print space. Generally, an invention must be new, useful, and nonobvious. In other words, an invention must: (i) not have been previously disclosed or patented (new or novel); (ii) do something (useful); and (iii) be a nonobvious development to one of ordinary skill in the art in light of the known prior art.
Is it that easy?
In a word: no. The biggest obstacles are novelty and nonobviousness. This is why a patent and/or literature search is a necessary first-step. The difficulty lies in determining where (if any) patentable space exists among the many individual issued patents and patent application publications across the globe.
What is a patent search?
As the phrase implies, it is a search of national and regional patent databases that possess issued patents and printed patent applications. The information discovered in a search may assist in determining what the prior art comprises and if any gap(s) exist. From a patent search, an inventor should be able to understand the scope of the art and determine the worthiness of pursuing patent protection for his/her invention. Notably, a patent search cannot guarantee patentability because of the sheer volume of patented, application publications, and non-patent literature that exists.
Patent searches are also conducted for a variety of other reasons, including freedom to operate, for invalidating another patent through the administrative or litigation processes, or to more broadly understand the general state of the art.
With the availability of several free searchable patent databases, including the USPTO (www.uspto.gov), Google Patents (http://patents.google.com), or Free Patents Online (www.freepatentsonline.com), a business or individual may initiate the search process and access both searchable text and downloadable PDF files, thereby better educating itself with regard to the competition that may assist in developing legal and/or business strategy.
What are the differences between a utility, design, and plant application?
A utility application seeks to protect the arrangement, structure, and/or function of an invention. The utility application is the type of patent application most folks think of when discussing patent applications (and later, an application that matures into an issued patent).
A design application seeks to protect the ornamental or aesthetic (and non-functional) features of an article of manufacture.
It is possible for a single invention to be subject to both utility and design application protections. For example, an athletic shoe may have a utilitarian arrangement, structure, or function that accomplishes some goal or provides some benefit, and therefore theoretically protectible by utility patent; that same athletic shoe may have a novel and nonobvious sole-pattern that may be theoretically protectible by design patent.
A plant application seeks to protect the discovery or invented asexual reproduction of a new variety of plant (except for tuber and/or tuber propogation).
What are the differences between a provisional and nonprovisional application?**
A provisional application allows an inventor to establish an early filing date if the application satisfies the modest formal filing requirements and the appropriate filing fee. However, the provisional application is not examined, and unless the inventor(s) files a nonprovisional application while the provisional application remains pending, the inventor(s) lose(s) the benefit of early filing date provided by the provisional application.
A nonprovisional application has additional formal requirements and a larger filing fee (compared to a provisional application). Once filed, the nonprovisional application is assigned to a patent examiner, who then conducts a search and determines whether the prior art permits acceptance or rejection of the claim(s) as presented.
How long does it take to get an issued patent?**
The answer: it depends. Depending on the pathway or route followed, without an expedited examination request and the large filing fees that are required, a utility patent application filed in the standard manner may take three or four years to navigate the waters at the USPTO. For utility applications, the prosecution phase-length is technology dependent, with pharmaceuticals and software applications often lingering for 5-7 years from filing to issuance. Design patents require less time, with the filing-to-issuance window ranging from 9 to 18 months.
For a more in-depth discussion whether a patent is the correct strategy, please contact York Law LLC at 740.414.3975 or firstname.lastname@example.org.