Patents reward inventors for the time, money and creative talent they invest in developing an invention by preventing others from making, using, or selling it for a limited period of time. Patents provide a few important advantages:
- Since most new inventions have uncertain commercial value, the protections encourage investment in new technology
- They encourage inventors to make their inventions known rather than keep them secret, which increases the technological knowledge available to the public.
- They aid in the sale or transfer of technology both within the United States and in foreign countries, by giving a commercially tangible form to otherwise intangible ideas.
Requirements for Patent Protection
There are several major hurdles an inventor must overcome before patent protection can be obtained. First, the applicant for patent must be able to demonstrate that he or she has developed a new, useful, and not obvious process or product.
A patent cannot be obtained unless an invention is new, meaning it must not have been known or used by others in the United States or patented or described in a publication in the United States or any foreign country before the invention was made by the applicant. It must also be capable of some beneficial use and cannot be “frivolous, fraudulent, injurious to morals, health or good order.”
The invention must also not be obvious, which is the most common reason for Patent Office rejection. It may well be that the invention is something that has never before existed. But if the Patent Office determines that a mythical person having access to all the available information concerning that particular field of technology would have “known” how to make the invention, then the invention is rejected as being obvious.
The invention must also be a:
- Manufactured article
- An improvement of any of the above
Types of Patents and Length of Protection
The type of patent described so far is known as a utility patent. The term of utility patents depends on when they were filed.
Utility patents filed on or after June 8, 1995 have a term of 20 years from the date of filing. Issued and enforceable patents issued prior to June 8, 1995 have a term of 20 years from the date of filing or seventeen years from the date of issue, whichever is longer.
Third parties would not be able to make, use or sell the patented invention until the period has passed, given the patent's owner ample time to establish market share as the sole supplier of the invention.
A design patent is available to any new, original, and ornamental design for an article of manufacture. In other words, design patents cover only the specific appearance of the article, rather than the concept of the article itself. Patents for designs are granted for a term of 14 years. Examples of articles for which design patents have been obtained are lamps, vases, and furniture.
A provisional application is intended to provide a method for an applicant to gain an early U.S. filing date relatively inexpensively. The life of the provisional application is one year from the date of filing and is non-extendible.
During this time period, the application is not examined. Also, 20-year term of any patent issuing from the application does not begin to run (unless a direct conversion to a utility patent is made). Accordingly, so long as a regular utility application is filed claiming priority to the provisional application, instead of filing a direct conversion application, then the 20-year term is not affected by the provisional application.
A patent application can only be filed with the Patent Office by the actual inventor or his or her representative. The basic elements of a patent application are:
- A specification
- An oath or declaration
- Drawings, when necessary
- A filing fee
A specification is a written description of the invention or discovery that must clearly and concisely describe the manner and process of making and using the invention. It must be specific enough to enable a person who is knowledgeable in the particular area to which the invention relates to make and use the invention. In addition, the specification must describe the invention in such a way as to distinguish it from other previously known inventions.
The specification should conclude with a claim or claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his or her invention or discovery. The claims legally define the patentable features of the invention. Each claim is a single sentence describing precisely what new, useful, and nonobvious features constitute the actual invention. The claims are the most important part of an application since the monopoly granted by a patent covers only the material appearing in the claims.
Oath or Declaration
An oath or declaration must be signed by the inventor(s) and filed with the application, stating that the named inventor is believed to be the original inventor of the invention which is claimed. By signing the oath, the inventor acknowledges his or her duty to disclose any information known to or later discovered by the inventor which is relevant to the examination of the application by the Patent Office.
The Patent Office also requires the submission of an Information Disclosure Statement by the applicant. An Information Disclosure Statement contains a listing of any patent publications and other information of which the applicant is aware and which is relevant to the examination of his or her application. An applicant must submit this document in order to comply with the duty of candor and good faith toward the Patent Office. Failure to do so could later enable another party to invalidate the issued patent.
The applicant is required to furnish a drawing of his or her invention when necessary for understanding the nature of the invention. In other words, if it is possible to draw the invention, a drawing must be included. As many drawings as are necessary to fully describe the invention are required.
Consultants at our Small Business Assistance Office can help you understand more about patents. And our network of Small Business Development Centers has experts located in nine main regional offices and several satellite centers statewide.
Our publication A Guide to Intellectual Property Protection provide a deeper look at patents and patent applications. The United States Patent and Trademark Office is a comprehensive authority.