What is a patent?

There are three types of patents in the United States: utility patents, design patents and plant patents. A utility patent protects the way a machine, article or process is used and works. A design patent protects the ornamental design of an item. A plant patent protects asexually-reproduced plants. An invention can be granted either a utility patent, design patent, or both.

Patents are issued by the United States Patent and Trademark Office (USPTO) and they grant the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. Once the patent is granted, it can be sold or licensed. A patent also gives the owner of the patent the right to sue those that violate the patent in federal court.

What can be patented?

Your invention will be eligible for a patent if it is considered a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Courts have held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter and mere ideas or suggestions are also not patentable.

Upon submitting a patent application, the USPTO examiner will compare your claimed invention to other existing inventions (“prior art”) to determine whether the differences in your invention are sufficiently new that they would not be obvious to someone with ordinary skill in the relevant field of the invention. Prior art is not limited to existing U.S. patents, but includes any written description (such as in a written publication) or patents anywhere in the world, as well as inventions that are already in public use, on sale or otherwise available to the public.

How long does a patent last?

For utility patents, patent protection lasts for 20 years from the date on which the application was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. For design patents, patent protection lasts for 14 years after the date when the patent was granted and for plant patents, the term lasts for 17 years after the date when the patent was granted. Failure to pay maintenance fees may result in the expiration of your patent, although a six month grace period may be provided upon payment of  surcharge.

Do I have to have a patent?

You are not required to obtain a patent in order to make, use, offer for sale, sell, or import a product or offer a service; however, you do want to be sure that your product or process does not infringe upon the patent rights of others. To understand potential barriers to commercialization, inventors and companies are wise to hire patent counsel to conduct a freedom to operate (FTO) search and analysis as early as possible in the product or process development cycle. A good FTO analysis can guide you toward designing around any potential infringement and/or toward obtaining licenses to the patented technology before you launch. Using the FTO process will protect you from costly litigation going forward and give potential investors peace of mind.

How to register?

You can apply for registration of your patents at https://www.uspto.gov/. However, in order to avoid mistakes that might cost you dearly in the future and risk losing your IP rights, we highly recommend that you consult with an experienced patent lawyer prior to application. Res Nova Law attorneys can help you with that or we can refer you on if it's not a good fit.