Patent Law - What are patents and how do you get one?
Patent law in the United States dates back to 1790. The government of the United States grants patents to inventors to protect their ideas from theft or copying. The United States Patent and Trademark Office (USPTO) receives over 600,000 patent applications every year. It approves about half of the applications it receives. Patents can be very valuable, but they are also time-consuming and expensive to obtain.
Quick Guide: What is a patent? | How does patent law work? | Why are patents important?
What is a patent?
Patents are a form of intellectual property. When the government grants a patent, the inventor receives the exclusive right to make or sell their invention for a limited period. If anyone else tries to make or sell their invention before this period expires, the patent-holder can sue. In exchange, the inventor must publicly disclose their invention and how it works, in great detail. When the patent term expires, anyone is free to make or sell the invention.
Patent vs. Trademark
Patents and trademarks are both forms of intellectual property. Patents grant the exclusive right to use or sell an invention. Trademarks protect brand names, logos, and other signals that consumers use to identify products or services. To illustrate this difference, let’s take a company like Nike for example.
Patent law would allow Nike to sue if a competitor steals Nike’s new, patented running shoe design. Trademark law would allow Nike to sue a competitor who used the famous Nike “swoosh” to market shoes. The main goal of patent law is to encourage innovation, while the main goal of trademark law is to avoid consumer confusion.
Patent vs. Copyright
Copyright is another form of intellectual property. Like patents, copyright law grants exclusive rights to reproduce and sell certain works. The difference between patents and copyright is the type of work that is protected. Patents protect inventions, like new machines, medicines, materials, or processes. Copyright protects works of literature and art, including visual art, music, and performance art. For example, if he were alive today, Leonardo da Vinci would likely make use of both systems.
Patent law would protect his inventions, like the above diagram of a flying machine. Copyright would protect his sculptures and paintings, like the Mona Lisa.
Patent vs. Trade Secret
Trade secrets are yet another form of intellectual property. Like patents, trade secrets are used to protect inventions, processes, and designs. Unlike patents, trade secrets are not publicly disclosed. Trade secret law protects companies from the theft of ideas through corporate espionage or other means. Trade secret law does not protect a company or inventor in the case of a competitor who reverse-engineers a product to discover how it works. Patents protect an inventor’s idea from everyone, but only for a limited time.
Utility Patents vs. Design Patents
Utility patents protect the way an invention works and what it’s used for. Design patents protect the way an item looks. If an invention features both new technology and a new design, the inventor may apply for both types of patents for the same item.
Plant Patents
Plant patents are a third type of patent. Plant patents are available to anyone who breeds or discovers a new variety of plant.
How does patent law work?
Patent law is a body of federal law. Title 35 of the United States Code describes the criteria that an invention must meet to be patented. It also outlines the length of time patents are protected and the remedies for patent infringement.
What is patent prosecution?
Patent prosecution describes the process of pursuing a patent. The process begins with the drafting and filing of a patent application. The process then typically involves months of back-and-forth communication with the USPTO. The USPTO will identify weaknesses with an application and the applicant will have the opportunity to respond. Patent attorneys play an important role in navigating this process for applicants. Patent attorneys must have a special license to practice patent prosecution.
How do you patent an idea?
Patent applications must be filed with the USPTO. Major parts of a complete patent application include:
Patent applications can be filed online. Once the USPTO receives an application, it reviews it for completeness. Once it determines an application is complete, it assigns an examiner to determine whether to grant the patent.
How much does it cost to file a patent?
Patent costs vary based on several different factors. These factors include:
Type of patent
Complexity of the invention
Size of the entity seeking the patent
An inventor should plan to spend about $1,000 at minimum. Costs for large businesses seeking complicated patents can exceed $15,000. There are additional costs to maintain a patent after 3 ½, 7 ½, and 11 ½ years. The USPTO publishes a current fee schedule on its website. Be warned, the schedule is very long and detailed.
The fees referenced on this schedule exclude legal fees. A patent attorney can offer valuable assistance to patent seekers. An attorney can write the application on the inventor’s behalf or look over an application the inventor wrote.
How long does it take to receive a patent?
As with cost, the length of time to receive a patent varies based on the complexity of the patent. On average, applicants will receive a “first office action” 16 months after filing. Frequently, the first office action is a non-final rejection that points out problems the applicant will need to amend.
It takes about 2 years, on average, for the USPTO to decide whether to grant a patent. This estimate includes the USPTO’s time reviewing an application and the applicant’s time amending it.
Are patent applications public?
The USPTO publishes patent applications 18 months after filing. There are some exceptions, including:
The application is no longer pending.
The application is classified due to national security.
The application was already issued as a patent.
The applicant made a nonpublication request. This is only available if the patent will not be filed anywhere outside the United States.
Read more about patent application publication on the USPTO website.
How do you perform a patent search?
Paying for a professional patent search is highly recommended before any inventor applies for a patent. But there are reasons an inventor might want to perform an independent search before paying a professional. First, researching similar patents will give the inventor a clearer idea about what makes their invention unique. Second, if the inventor finds that their invention (or a very similar invention) is already patented, they can save the cost of a professional search. Here are some useful resources to begin an independent patent search, for free:
USPTO search tool – The USPTO’s search tool lets anyone search by dozens of data fields for free. However, the site looks dated and may not be intuitive to use.
Google Patents – A familiar search tool for anyone who uses the Google search engine. This tool includes results from the USPTO and international patent offices.
Free Patents Online – This site offers similar functionality to the USPTO search tool but in a more user-friendly format. Some international patents are supported.
What happens if a patent is denied?
Patent claims are rejected for many different reasons. The examiner may determine that the invention is obvious or not novel. Or there could be an issue with the content of the application.
Patent rejections may be labeled “non-final” or “final.” Usually, the first rejection is non-final and a second rejection is final.
Despite these labels, applicants have the option to continue prosecuting their patent in the face of either type of rejection. Some of the steps available to applicants whose claims are rejected include:
Amend the application – Applicants always have the right to amend after a non-final rejection. Applicants can amend after a final rejection under certain circumstances.
Interview with the examiner – Examiners often grant an in-person or telephone interview after final rejection to help the applicant prepare for an amendment or appeal.
File an RCE – Applicants can file a Request for Continued Examination (RCE) after receiving a final rejection. There is no limit to the number of RCEs an applicant can file, but there are costs associated with each request.
Appeal – Applicants can appeal to the Patent Trial and Appeal Board (PTAB) if they cannot reach a resolution with their examiner.
What is a provisional patent application?
A provisional patent application (PPA) is a shorter, less formal application filed in advance of a full application.
The reason for filing a PPA is to secure a filing date. Patents are judged for novelty and obviousness as-of their filing date. An earlier filing date is beneficial because the examiner will not compare an invention to technologies invented after the filing date.
A PPA must always be followed by a full application within one year of filing. Any new material claimed in the full patent application cannot rely on the filing date of the PPA.
When can an inventor say “patent pending?”
Inventors can mark their products with “patent pending” as soon as a patent application has been filed. This includes provisional applications. Saying “patent pending” confers no legal protection, but it warns competitors that the invention may soon be protected.
Why are patents important?
The United States has a “first to file” patent system that grants patent rights to the first inventor to file a patent for a new idea. If someone uses a patented technology without permission, they could be sued for patent infringement.
Patent infringement
Unlike copyright infringement, there are no criminal penalties associated with patent infringement. Still, the civil penalties for infringement can be very serious. Patent law provides for three remedies to patent holders whose rights were infringed:
Injunction – A court order for the infringer to stop using the patented technology. This can be very problematic for a business that has invested resources into making a product that infringes on a patent.
Monetary damages – The patent holder can get the greater of:
(a) the market price a licensee would pay to use the patent, or
(b) the patent holder’s lost profit due to the extra competition.
If the infringer knew they were violating patent rights and decided to do it anyway, the court may award “treble damages.” This means the patent holder can receive triple the monetary award.
Attorney fees – The court may decide to make the infringer pay for the patent holder’s attorney fees. Like treble damages, this is usually only awarded when the infringer acted in bad faith.
