What is a Patent?
Simply put, a patent is a government granted right of exclusive ownership of intellectual property for a specific duration of time, in exchange for the full public disclosure of the idea. So what is intellectual property exactly? The term ‘intellectual property’ means ideas that are treated as property. You can buy, sell, trade, gift, donate, etc. everyday tangible property and you can do the same with intellectual property. The ‘grant of ownership’ part entails a sovereign government granting you exclusive rights to that idea within their particular area of control for a specific period of time (20 years in the U.S.). After that time period is up, you no longer own the idea. The idea is in the public domain for all to use and by virtue of the patent being public information, you’ve told everyone every important thing about it. That’s the big catch with patents; full legal exclusivity for a period, but you have to give up the secret sauce to get it.
Many countries have their own independent patent system. Being granted a patent in the United States involves utilizing a part of the U.S. Constitution… Article I, Section 8 to be exact. This section lists the powers of Congress and among numerous other things says, “The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” With that statement the U.S. system for issuing patents was born. From here forward, we’ll just be talking about intellectual property as it pertains to the U.S. patent system.
Besides just patents, there are other ways to protect other different forms of intellectual property. For example, protecting brands and logos with trademarks and works of art with copyrights (you’ve probably seen the little TM and R or C with a circle around it, as in ™ or ©), but we’re going to focus on product ideas here so we’ll save all the stuff about copyrights and trademarks for another article.
So how does one go about being granted a U.S. Patent?
It starts with an application to the U.S. Patent & Trademark Office detailing all the important information about the idea in a very specific format. It’s a good idea to have an experienced patent attorney work with you on this to create the best patent you can. You’ll often hear terms like “patent protection” as well as patents being referred to as strong or weak when referring to their level of protection. The more variations of the idea you include in your patent and the better it is thought out and well written to protect against potential workarounds, the stronger your patent will be. The stronger it is, the less likely others will be able to work around your patent with an even newer, new idea (which is allowed).
There are three types of patents you can apply for: design patents, utility patents, and plant patents. Yes, as crazy as it sounds, that last one is for plants, the type that grow out of the ground, not factories. You can actually patent the creation or discovery of a new distinct type of plant. Design Patents focus on ornamental design elements of products like shape, form, and the overall look of the product, not the function. Utility Patents, on the other hand, apply to things like processes, functionality, products, machines, mechanisms, or new materials and are usually considered the strongest type of patent as a result. Your patent attorney will help you choose which type of patent makes the most sense for your situation.
There are two ways to begin the process of being granted the intellectual property rights of an idea: a provisional patent and a non-provisional patent.
The Provisional Patent Application:
A provisional patent application is a sort of “pre-patent” step for those not entirely ready to go forward with the full blown patent application for a new idea just yet. Provisional patent applications are used generally when the applicant doesn’t have all the details of their product set in stone just yet but they still want to secure and have their filing date on record with the U.S. Patent Office.
On that note, it is a good time to bring up that the law recently changed in March 2013 and it no longer matters what day you invented something (what was known as a “first to invent” system). Now, it only matters who is the “first inventor to file” with the U.S. Patent Office. It’s now a race to get your paperwork in which is why a provisional patent is more important now than ever before.
A provisional patent application locks in that filing date and provides 12 months to do whatever is needed, generally more research and development on the idea, before moving forward with the non-provisional patent application.
In actuality the provisional application provides no protection or rights at this stage in the process. It doesn’t give you any protection, power, or exclusive rights at all. It only acts as a ‘time-stamp’ of your filing date should the actual patent (the non-provisional patent) be granted later on down the road and it can help with “who was first” if a dispute arises with another applicant. With a filing date established, you can mark your product “Patent Pending” and make public disclosures without losing the potential for being granted exclusive rights. We say potential here, because it is the granting of the non-provisional patent that gives you the exclusive intellectual property rights and just because you file a non-provisional patent doesn’t mean it will be awarded in the end. Typically there is a long patent review process before that happens.
The Non-provisional Patent Application:
The non-provisional patent application is the application for the full blown patent. You can file a non-provisional patent without ever having filed a provisional patent application (basically skipping that step, it is a completely optional one) or at any time during the 12 month pendency period of the provisional patent application. Depending on several factors, it may take around 1 to 3 years from the time you file the non-provisional patent application to the day the right of ownership is granted (i.e. the patent is issued). During this application review period you do not yet have the ownership you’re seeking. You are considered patent pending. You can mark the product with “Patent Pending”, show the world your idea, and even sell it out in the open market. You just don’t yet have the right to stop anyone else from making, using, offering it for sale, or selling it either. By putting “Patent Pending” on the product, you’re giving the world a fair heads up, that at some point they may be told to stop making use of this intellectual property.
So 3 years later, the day has finally come and you’re granted a patent! What does a granted patent get you anyway? It gives you the exclusive right of ownership of the patented ideas for 20 years from your filing date. You will have to keep up with a schedule of additional maintenance fees at specified times during the 20 year period to keep your exclusive rights active.
With ownership established, you’ll be able to make full public disclosure with minimal risks of losing your intellectual property rights. So no more worries, right? No one can run off with your idea now, right? Well, the right of ownership we’ve been talking about only legally gives you “the right to exclude others from making, using, offering for sale, or selling” anything making use of your intellectual property within the United States and its territories.
The unfortunate part is there are no government agencies that enforce patent protection; not the U.S Patent Office or even the police. It is totally up to you to pursue anyone who infringes on your patent. Usually that means going to court with a patent infringement lawsuit.
What this all means is, the first person to file with the U.S. Patent & Trademark Office and be granted a patent owns the idea, but your ownership, in reality, only extends as far as your ability to stop any infringing parties from doing so. Alternatively, without the patent, you’d have no recourse to stop anyone (other than those bound by a contract, like an NDA) from producing or selling your new product idea.
To summarize it all:
Provisional patent application:
Simpler application (generally speaking)
Records your patent filing date
Provides for 12 months of additional time to work on the idea
Allows for marking the product with “Patent Pending” and the patent application number
Allows for public disclosure during application period without losing potential ownership rights
Does not grant any ownership rights
Non-provisional patent application
Highly detailed application
Allows you to mark the product with “Patent Pending” and the patent application number
Allows for public disclosure without losing ownership rights
Does not grant any ownership rights (until patent is granted by the patent office)
Allows you to mark the product as having U.S. patent protection
Requires maintenance fees to keep exclusive rights active during the 20 year period
Provides exclusive ownership of the intellectual property covered in the granted patent
So now you know what patents can and can’t do for you, the trade-offs, how long they last, what types there are, and a little about the application process. We hope this summary article gave you a little more insight into what a patent is than you knew coming in. For more information, please see the patent office’s website at www.uspto.gov and consult your patent attorney for any legal advice you may need.
With all of the above information, please keep in mind, we’re not a law firm and nothing in this article should be considered legal advice. It’s always recommended to have a consultation with a patent attorney to discuss the details of your unique situation and get their expert advice since it can certainly get complicated.
As we’re sure you’ve found, there isn’t a lot of quality information out there for inventors so if you liked this article and found it informative, please share it with your like-minded, creative, inventive friends, coworkers and family. If you need any product development assistance, feel free to Contacts Us by emailing us at firstname.lastname@example.org, filling out the simplified contact form below, or giving us a call at 407-721-4390. We’re always happy to help inventors through all the stages of product development!
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