Frequently Asked Questions: Patent

What is a patent?

A patent is an intellectual property right that protects an invention from being stolen by others. When a patent is registered with the United States Patent and Trademark Office (USPTO), the invention is publicly disclosed.

Who can apply for a patent?

Any person may apply for a patent with the United States Patent and Trademark Office (USPTO). However, a patent application must be under the name of the actual inventor.

How do patents work?

A patent, when registered with the United States Patent and Trademark Office (USPTO), allows the holder of the patent to exclude others from making, using, or selling the invention protected by the patent. When a patent is registered and granted by the USPTO, the information about the patented invention is publicly disclosed. This means that the public is put on notice that the invention has been invented and is owned by someone (the patent holder). If another person later tries to copy the same invention and claim it as their own, the original patent holder can enforce his or her legal rights in the invention and can prevent the other person from continuing to make, use, or sell the secondary product.

What does a patent protect?

A patent protects new, original, and useful inventions. That is, the invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. Any of the following is patentable: machines, processes, methods of manufacturing or producing, compositions, tools, and new plant species. Additionally, improvements to any of the above can be patented if the improvement changes the invention in such a way that the improved invention has a new and useful function that distinguishes it from the original patented invention. By obtaining patent protection, a patent owner has the legal right to prevent others from copying his or her invention and may prohibit others from making, using, or selling the replicated invention.

Why is filing a patent important?

A patent issued by the United States Patent and Trademark Office (USPTO) allows the holder of the patent to exclude others from making, using, or selling the invention protected by the patent by publicly disclosing information about the patented invention. This public disclosure is important because it essentially serves to put the public on notice that the invention has been invented and is owned by someone (the patent holder). If another person later tries to copy the same invention and claim it as their own, the original patent holder can enforce his or her legal rights in the invention and can prevent the other person from continuing to make, use, or sell the secondary product.

This level of protection is important because not only does it helps protect an inventor’s invention from others who may attempt to copy the invention and claim it as their own, but it can lead to increased profits and/or sales by preventing others from copying and profiting off of the patent holder’s original invention. Under some circumstances, patent protection may also lead to increased competition in the relevant industry.

What can and cannot be patented?

Machines, processes, methods of manufacturing or producing, compositions, tools, and new plant species can be patented. New improvements to any of the above may also be patented if the improvement changes the invention such that it has a new and useful function that is dissimilar to the original patented invention. Any of the above may be patented if it meets the USPTO’s criteria: that is, the invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. 

On the other hand, abstract ideas, laws of nature, theoretical plans, and physical phenomena cannot be patented. Neither can literary, dramatic, musical, or artistic works, although the creator of any literary, dramatic, musical, or artistic work may seek protection by obtaining a copyright. Additionally, if a patent does not meet the USPTO’s criteria, it will not be patentable.

How do I patent an idea?

To patent an idea for an invention, the invention must meet the requirements set forth by the United States Patent and Trademark Office (USPTO). An idea or invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. A patent applicant can apply to patent an idea that has not been brought to fruition by filing a provisional patent, acting as a placeholder for one year until the invention is complete and the actual patent application is filed. Abstract ideas cannot be patented.

How do I patent a product?

To patent a product, a patent applicant must first conduct a thorough patent search to ensure no other identical or similar products already exist. If none exist, the applicant may file an application online with the United States Patent and Trademark Office (USPTO) and pay a non-refundable filing fee. There are many important factors involved in submitting a patent application, and any deficiencies in an application may lead to rejection of the application or extra time and expense in fixing any deficiencies. As the patent registration process can be time consuming and confusing, applicants wishing to patent a product are encouraged to seek the help of an experienced patent attorney who can conduct the patent search for you and ensure your application meets all the criteria required by the USPTO.

Can I patent a name?

No – names cannot be patented. Patents protect inventions, processes, and methods. However, a person wishing to protect a name may be able to do by registering the name as a trademark, although it depends on the name itself and the circumstances under which the name will be used. 

What is a utility patent?

A utility patent is granted to protect the way an invention functions. For example, an invention for a new machine, such as a vacuum, cooking appliance, or even a software system, would seek protection under a utility patent.

What is a design patent?

Design patents are granted to protect new and original designs on a product and will protect the overall design of the product as a whole. A classic example of a design patent is the original, classic glass Coca-Cola bottle – a design patent prohibits other manufacturers from copying Coca-Cola’s style and look.

What is a plant patent?

Plant patents are used in the field of plant agriculture and horticulture and protect newly invented or discovered asexually reproduced plants. Although plant patents are less common than utility patents and design patents, a patent applicant who grows and/or crossbreeds plants may wish to apply for a plant patent.

Which patent do I need?

A patent applicant seeking to protect the method, process, or function of an invention should consider a utility patent. Utility patents protect the way the invention operates, so others cannot copy the original invention’s specific task. A patent applicant wishing to protect the overall structural design of a product should consider a design patent. On the other hand, a patent applicant who wishes to protect a specific breed, crossbreed, or species of plant should consider applying for a plant patent.

What is a provisional patent?

A provisional patent is essentially a place holder to secure a filing date for a future patent. If an inventor is not yet ready to file a patent application (called a “nonprovisional” application), applying for and obtaining a provisional patent provides the inventor with one year from the date the provisional patent was filed to work out any issues with the invention, perfect or finalize the invention, secure funding for the invention, or otherwise. The benefit of obtaining a provisional patent is that when the inventor is ready to file the nonprovisional patent, he or she may claim the date of filing as the date the provisional patent was filed, allowing the invention to secure an extra year of protection as to the invention. 

What is patent prosecution?

Patent prosecution is the process of drafting, filing, and negotiating with the United States Patent and Trademark Office (USPTO) in order to apply for and register a patent.

When is a patent granted?

The average length of time it takes for the United States Patent and Trademark Office (USPTO) to review and approve a patent application after the application is submitted is 22 months. However, it may take longer than 22 months if the patent applicant is required to respond to an Office Action issued by the USPTO to address any deficiencies or issues in the original application.

When does patent protection begin?

Basic patent protection begins upon the filing of a patent application. Although it may take up to one year, or even longer, for a patent grant to be approved, a patent applicant possesses some legal rights in the invention while the application is pending. While an application is pending (considered the “patent-pending stage”), the filing date of the application is the effective date that the patent is considered to be secured. This means that if someone else attempted to file a patent for the same or a substantially similar invention, the original applicant’s patent application would provide some legal protections against later filed patent applications. When a patent application is finally approved and a patent is granted, the patent holder will then be afforded full legal protections, meaning the patent holder may file a lawsuit against infringement to enforce his or her rights in the patent.

What does “patent pending” mean?

After submitting a patent application, an applicant may see “patent pending” on his or her application. This means that the patent application is still pending, but the patent has not yet been granted. 

When is a patent application published?

Patent applications are published, and are thus available to the public, 18 months after the date the application was filed. A patent application may be published after 18 months even if the patent has not yet been granted. However, prior to the publication date, the patent application and its information remains confidential.

Where is a patent registered?

Patents are registered with the United States Patent and Trademark Office (USPTO) and applications can be filed online through the USPTO’s website. A patent federally registered in the United States provides protection throughout all fifty states for the duration of the patent.

Are patent applications public?

When a patent application is filed, it is published by the United States Patent and Trademark Office (USPTO) for the public to view after 18 months, even if the patent has not yet been granted. In this case, the patent will state “patent pending.” Any applicant may search for a published patent application on the USPTO’s website.

What does patent infringement mean?

Patent infringement occurs when someone other than the patent holder makes, uses, or sells a patented invention without permission from the patent holder.

Will a patent expire?

Patents are grants of limited rights in the patented product or invention – meaning they do expire, but a patent applicant may renew the patent at the end of its term by paying a renewal fee. If the patent holder does not renew his or her patent, the patented invention becomes freely available for others to use.

When does a patent expire?

Utility patents, which protect the way an invention functions, expire after 20 years from the date the application was submitted. Design patents, which protect an overall image or design of a product, expire after 14 years from the date the application was submitted. Plant patents, like utility patents, expire after 20 years from the date the application was submitted.

When patent protection expires, what happens to the invention?

At the end of the patent term, a patent holder has the option to renew the patent by paying a renewal fee. If a patent holder wishes to renew the patent, the patent will remain effective for another 14 – 20 years, depending on whether the patent is a utility patent, design patent, or a plant patent. If the patent holder does not wish to renew the patent, or fails to pay the renewal fees, the invention becomes freely available for use by others and the original patent holder will no longer benefit from the legal protections granted in a patent.

Can a patent be revoked?

The United States Patent and Trademark Office (USPTO) can revoke a patent that has been granted if any person requests the USPTO to re-examine an approved patent. This request may be based on a showing that the patent’s claims are not new, or that prior art, including other existing patents or prior patent applications, exists that may have been overlooked in the original application process. If the USPTO finds the approved patent subject to revocation, the patent may be invalidated or revoked, meaning the patent holder’s legal rights in the patent are surrendered. However, the patent applicant may appeal a revocation issued by the USPTO in federal court. 

When can a patent be revoked?

Any individual may request the United States Patent and Trademark Office (USPTO) to revoke a patent that has already been granted at any time. A patent may be revoked for any of the following reasons: (1) the patented invention is not patentable, (2) the patent was granted to a person who was not entitled to the patent grant, (3) the written specification does not clearly describe the invention with enough information, (4) the written specification exceeds the scope of the disclosure in the original patent application, or (5) the protection afforded to the patent was extended by an amendment which should not have been allowed in the first place.

Why is a patent search important?

Performing a patent search prior to filing a patent application is important to determine whether any invention that is identical or similar to the invention an applicant wishes to patent already exists. If there are any identical or similar inventions already patented, it may be more likely that a patent applicant’s application may be rejected. To avoid rejection, performing a patent search will determine whether or not an inventor should slightly alter his or her invention, continue with the invention, or discard the invention altogether.

How do I perform a patent search?

A patent applicant wishing to perform a patent search may search for existing patents on the United States Patent and Trademark Office (USPTO)’s website, through Google’s patent database, or at various other third-party websites. When performing a patent search to determine whether an invention sought to be patented already exists, it is important to use specific terms, include any alternate terms that may be affiliated with an invention, and carefully review the detailed claims of each similar or identical patent. 

When can a patent search be done?

A thorough and extensive patent search is always performed prior to submitting a patent application to the United States Patent and Trademark Office (USPTO) and can be done by an experienced patent attorney. However, an inventor may perform a patent search at any time, often when the inventor has an idea or invention he or she believes is worth patenting. Performing a search in the early stages of an idea or invention may benefit an inventor wishing to patent an invention because it may provide the inventor with a general idea of whether or not identical or substantially similar inventions have already been patented.

Can you sell a patent?

A patent holder can sell a patent. Doing so, however, relinquishes any rights the patent holder possesses to future profits from the original invention, as well as any legal rights he or she has in the invention granted by the patent. Patent holders may also sell licenses to a patent. A license may give another person the right to make, use, or sell the patented invention and can result in additional profits for the patent holder. The scope of rights under a license is governed by the terms of the agreement and can be granted to an individual or a company, or several companies.

Do I need a prototype for a patent?

A prototype is a sample or model of a product, usually used to test a concept or process. Prototypes are not required to submit a patent application. However, the invention must be specifically described in the application such that a person reading the patent would be able to figure out how to use and/or make it.

Can I apply for a patent without a lawyer?

Any individual may apply for a patent without a lawyer. However, hiring a patent lawyer may save an applicant valuable time, money, and stress in navigating the United States Patent and Trademark Office (USPTO)’s lengthy and confusing registration process. Skilled patent attorneys will be able to easily determine whether an invention is already patented by conducting a thorough patent search prior to filing the application and will assist an applicant in ensuring all required forms and documentation is complete so as to avoid any deficiencies or issues that may lead to rejection of a patent application.

Can I file an application for a patent without claims/examples/an inventor?

No – an application for a patent must include a specification of the invention sought to be patented, including a written description and a claim (or multiple claims), drawings if necessary, and a declaration. The application must be under the name of the actual inventor.

Is a patent a form of intellectual property?

A patent is one of the three most common forms of intellectual property. The other two common forms are trademarks and copyrights.

What is the difference between a patent and a trademark?

A patent protects new, original, and useful inventions. That is, the invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. Any of the following is patentable: machines, processes, methods of manufacturing or producing, compositions, tools, and new plant species. 

A trademark protects brand names, logos, or slogans used in association with a certain good or service. The purpose of trademarks is to distinguish the source of goods or services from other sources to prevent confusion as to the where the good or service originated. Trademark protection, however, functions in the same manner as patent protection, meaning that a trademark owner has the legal right to prevent others from copying the trademark and claiming it as their own.

What is the difference between a patent and a copyright?

A patent protects new, original, and useful inventions. That is, the invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. Any of the following is patentable: machines, processes, methods of manufacturing or producing, compositions, tools, and new plant species. 

On the other hand, a copyright protects original works of art in the form of literary, dramatic, musical, or artistic works. Copyrights protect a copyright holder’s legal rights in the copyrighted work in the same manner that patent protection does by giving the holder an exclusive legal right to prevent others from copying the original work.

What is the difference between a patent and a trade secret?

A patent protects new, original, and useful inventions. That is, the invention must: (1) be something that no other inventor has invented or created, (2) be something that no one else in the relevant field has thought of, and (3) function the way it is described in the patent application. Any of the following is patentable: machines, processes, methods of manufacturing or producing, compositions, tools, and new plant species. 

A trade secret protects confidential business information. The primary difference between trade secrets and other forms of intellectual property is that trade secrets cannot be federally registered to ensure protection. Because trade secrets protect confidential information, the only way a trade secret is protected is by ensuring the confidential information remains confidential. Trade secrets expire as soon as the “secret” is made public.

What does “patent” mean?

To “patent” something means that the patent registrant possesses the sole right to exclude others from making, using, or selling a patented invention.

What does a patent lawyer do?

An experienced patent lawyer specializes in patent prosecution: the process of drafting, filing, and negotiating with the United States Patent and Trademark Office (USPTO). Patent lawyers conduct thorough patent searches to ensure an applicant’s invention is not already existing and/or patented. A patent lawyer also has expertise in drafting patent “claims,” which are included in a patent application and must specifically describe the subject matter of the invention and the level of protection sought by the patent application. Patent lawyers are skilled in understanding the specific requirements in a patent application and are able to draft a patent application so as to avoid a rejection of the application by the USPTO. Oftentimes after receiving a patent application, the USPTO will issue an Office Action, which is an official document seeking clarification or amendments to the original application and requiring an applicant to respond with arguments as to why the patent should be granted. Patent attorneys are knowledgeable and have experience in addressing the specific issues that may arise in an Office Action and can easily respond to an Office Action issued by the USPTO to ensure an application meets all criteria required by the USPTO.

Why do I need a patent attorney?

Applying for and registering a patent can be a time consuming and lengthy process. First, an applicant must perform an extensive and thorough patent search to ensure no other identical or similar products already exist. If none exist, the applicant may file an application online with the United States Patent and Trademark Office (USPTO), which involves certain specifications and descriptions of the invention, as well as non-refundable fee. Oftentimes, a patent applicant will be required to respond to an Office Action issued by the USPTO, addressing any deficiencies or issues with the application that are found by the USPTO after the application is received.

An experienced patent attorney is knowledgeable in conducting thorough patent searches and can easily determine whether a patent applicant’s invention may be denied due to already-existing inventions. Hiring an attorney will also save time and expense in preparing all the required specifications and detailed descriptions in the initial patent application. Further, if the USPTO requires an applicant to respond to an Office Action, a patent attorney will be able to assist in responding to each deficiency addressed in the Office Action. Hiring an attorney will end up saving an applicant time, money, and stress in having to navigate the lengthy and confusing registration process and will also ensure an invention is protected to the maximum extent possible. 

How do I find a patent attorney/firm near me?

A simple Google or Yelp search often reveals law firms and attorneys that specialize in patent registration. Additionally, many lawyers and firms have profiles on websites such as lawyers.com, avvo.com, and martindale.com. It is important for an inventor seeking the assistance of a patent attorney to carefully read reviews and areas of practice the lawyer or firm specializes in to determine whether the lawyer will be able to assist in your patent needs.