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What is a patent?

In a nutshell, a patent is a limited government granted monopoly that prohibits others "from making, using, offering for sale, or selling" an invention throughout the United States.

There are three types of patents:

  • Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement.
  • Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture
  • Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

For an inventor, a patent is both a sword and a shield. On the one hand, filing for a patent means that you're able to enjoy the fruits of your great invention. That's because if you receive a patent, you are granted the exclusive right to the use, manufacture, and sale of your invention. It also ensures that no one else can file for the same patent and try to prohibit you from using your idea.

In the past, the United States granted patents to "the first to invent" a new invention. That is no longer true; Congress recently passed a law to grant a patent to "the first to file" for the patent. In other words, if you fail to patent your invention and someone else files for a patent first for the same idea, the first-filer may be able to legally prohibit you from taking advantage of the invention!

Getting a Patent — Basic Patent Requirements

In order for your invention to qualify for patent eligibility, it must cover subject matter that Congress has defined as patentable. According to USPTO this means the subject matter should be any "new and useful" process, machine, manufacture or composition of matter.  So before applying a patent make sure:

  • The invention is useful or other words provide a "utility".
  • The invention is "novel"
  • The invention is "non-obvious" and
  • The invention must not have been disclosed to the public prior to the application for the patent.

So how do you know if your idea is eligible for a patent? Similarly, how do you know if your idea is worth the expense of filing for a patent? If you answer "yes" to these 7 questions, filing for a patent may be the right step for you.

Are you patenting an invention of your own?

A patent can only be applied for in the name of the actual inventor or co-inventor of the invention. It is not enough to make a financial contribution to a product to be considered the inventor. This is true even if the inventor was employed by another person or company to create the invention. Although an employer will often own the resulting patent, the patent will be issued in the name of the actual inventor. Just because you invented the underlying invention, that doesn't necessarily mean you own the patent. This is especially true if the inventor's employment contract contains a pre-assignment clause or if the patent was invented as part of the inventor's job. In such cases, even though the patent will be issued in the name of the inventor, the employer may have contractual rights to the invention. In fact, if the inventor attempts to sell, license, or use the invention without the employer's consent, the employer would probably have an action for breach of contract against the inventor.

Are you patenting an idea that is useful?

Unlike a trademark or copyright, an invention must be "useful" to be eligible for protection. An invention meets this requirement under U.S. law if it provides some benefit and is capable of use. Although most inventions will be able to meet this requirement, devices such as a perpetual motion machine have been considered non-useful and not eligible for patent protection. Here are just a few things that could be considered for a patent.

What is the difference between a patent and a copyright?

Patents give protection to actual inventions, whereas a copyright protects the expression of an idea. Copyright is generally used for artistic works, such as books, computer programs, movies, and art.

Can you patent a process?

Not every invention is eligible for a patent. In fact, some things are specifically excluded from patent law. For example, US law does not provide patents for laws of nature, physical phenomena, abstract ideas, and non-useful objects. However, patents are available for:

  • A processes or method (business process, computer software or engineering methods)
  • A machine (anything that can perform a function)
  • A new composition (make-up, pharmaceuticals or artificial creations )
  • An article of manufacture (a tool or an object that can get a job done in a few steps)

How do you know if your idea is already patented?

An idea must be "novel" in order to be eligible for protection. In short, this means that the subject matter of the patent must not have been publicly disclosed prior to the date of the filing. This requirement is strict. Inventors have been denied patents because the invention was previously disclosed to the public, the invention was made available for use to the public, or the invention was disclosed in a prior patent application. To make sure that your idea is novel its always a good idea to do your research. You can scroll through articles, journals, historical libraries, and art to make sure your idea is truly original.

Is your idea non-obvious?

An invention must be "non-obvious" in order to be eligible for a patent. The test here is whether or not your invention would seem easily knowable to a "person having ordinary skill in the art" in which the patent is intended. In other words, it can't be something that people already know about, in that field. Courts examining whether an invention is obvious will look at the scope and content of the existing knowledge and technology in that industry, the level of what constitutes ordinary skill for that industry, the differences between the claimed invention and what's already common in the industry, and any other objective evidence to suggest that your new idea is not obvious.

How much do patents cost?

Filing for a full non-provisional patent can be a time-consuming and costly process that involves paying filing fees and often retaining the services of a patent attorney. For those reasons, it's worth considering whether you can market your new invention in the first place.

Many inventors choose to file a Provisional Patent initially, which is a simplified application that preserves the filing date. Then, the inventor has one year to file the full non-provisional application. Since it's more complex, most people will need an intellectual property attorney's help to file the non-provisional application. Even though you could skip straight to the non-provisional application, the benefit of doing the provisional application first is that it gives the inventor more time to get the full non-provisional application ready to go, or to do further market-testing and other research to make sure it's worth the time and investment to get the official patent. Another benefit of filing for a Provisional Patent is that you can use a Patent Assignment to transfer your ownership rights, even if the patent hasn't been assigned yet.

Taking The First Steps Towards Getting a Patent

If your new idea meets each of these requirements, then it may be time to speak with a patent attorney about filing for a patent to protect your invention! To get started, visit our Intellectual Property center.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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