Patents 101


What is a patent?

A patent is a government-granted right to exclude others from making, using, selling, or importing the patented material. The owner of the patent is the only person with the right to enforce the patent against any alleged infringer.

What is the process for obtaining a patent?

First, a patent application must be filed with the U.S. Patent & Trademark Office (PTO). The PTO then examines the application to assess whether a patent should issue. If the PTO’s determination is negative, the PTO will issue an Office action and allow the applicant an opportunity to present reasons as to why a patent should issue, or amend the application to overcome a rejection. This process may go back and forth several times, with the PTO issuing multiple Office actions and the applicant responding to each. Typically, a patent will not issue before eighteen months after filing, and some patent applications may be pending before the PTO for as long as five years.

Can I patent my idea?

Things eligible for patent protection include processes, machines, methods of manufacture, compositions of matter, or improvements thereof. To be patentable, an invention must be novel, useful, and non-obvious. In general, the novel requirement means the invention must not be known to others in the U.S. or described in any publication throughout the world. The non-obvious requirement generally means that when the invention was made, it must not have been an obvious combination of things already known to a person skilled in that field. If the PTO rejects a patent application, most often it is based on the novel and/or non-obvious requirements.

Are there different types of patents?

Patents may be classified into three main types: (1) plant patents; (2) utility patents; and, (3) design patents. Most inventors seek utility patents because they generally provide the broadest protection since they cover the functionality of the invention, the way it works, or is used. Plant patents cover invention or discovery of a distinct and new variety of plant. Design patents cover only the ornamental appearance of an invention, not the way the invention works or is used.

What is the difference between provisional and nonprovisional patent applications?

Provisional patent applications do not include claims and are not examined by the PTO. Accordingly, a provisional patent application can not mature into an issued patent. A nonprovisional patent application includes claims, is examined by the PTO, and may mature into an issued patent. Nonprovisional utility patent applications may claim priority from (i.e., get the filing date of) a provisional patent application for the same invention if the statutory requirements are met.

How long does a patent last?

A provisional patent application lasts for one year from the date of filing. Plant and utility patents last for twenty years from the date of filing, Design patents last for fourteen years from the date of issuance.