By: Anna Kinney  [4/22/22]

The general public has very little exposure to patents. Perhaps you’ve seen a patent number listed on a product. Maybe you like to watch shows like “Shark Tank,” or you’ve seen patents play a role in a movie such as “Inspector Gadget.” The US government performs a service, examining patent applications and issuing patents, that is available to anyone but is used by only a fraction of the citizenry. Here are some basics about patents as an introduction.

What is a patent?

A patent is a type of intellectual property that gives the inventor a limited right to exclude others from making, using, and selling their invention. In return, when the patent expires, anyone can make, use, or sell the disclosed invention. Our country’s founders believed patents foster innovation by giving inventors limited protection to get started. Intellectual property was so important to our forefathers that it is in the U.S. Constitution, Article I, Section 8, Clause 8. One of our country’s earliest laws is the Patents Act of 1790. Three types of patents are available. A utility patent protects features such as the structure and/or function of the invention. A design patent protects the ornamental appearance of an article. A plant patent protects plant cultivars. Utility applications are the most common type of patent application filed at the United States Patent and Trademark Office (USPTO).

What can be patented?

A utility patent can be issued for a new, useful, and nonobvious product, process, machine, or composition. Certain types of inventions generally cannot be patented, including laws of nature, natural phenomena, and abstract ideas such as mathematical concepts, mental processes, and methods of organizing human activity. Some inventions are better protected by keeping the information proprietary, such as certain recipes. Patents are not suitable to protect the name of a product or a creative work.

Do I need a patent?

You may need a patent to keep your competitors from copying your idea. You don’t need a patent to make a product. If you decide to apply for a patent in the U.S., you may also decide to apply for a patent in countries where you anticipate doing business. A single international application may be filed to get started, but the international application must be submitted in each country where you will need protection about 30 months after the international application is filed. As costs are generally a limiting factor, the applicant must select a limited number of countries in which to apply.

What is required to get a patent?

A patent application is somewhat like a report with specific requirements. A utility application includes some background information, a summary and a detailed description of the invention, drawings in most cases, an abstract, and a series of claims. The legal protection is provided by the claims. The application must be filed with a number of forms and fees. Once the application is filed, it is examined by a patent examiner. To patent an invention, an examiner must be convinced that your invention is new, useful, and nonobvious. The examiner must compare your application to a wide range of information that was publicly available when your application was filed. About 90% of patent applications are rejected at least once. The process generally takes about 2 to 4 years, with additional fees necessary over time. While it is possible to file an application without a patent attorney or a patent agent, individuals who file as a pro se have a low success rate. The cost to successfully obtain a patent may range from about $6,000 to about $15,000 or more, depending on a number of factors.

Do I have to make a prototype before I file a patent application?

No, although you must provide enough information that a reader can make the invention without “undue experimentation.” In fact, before the idea is fully refined, you can file a provisional application holding the filing date up to 12 months before filing a nonprovisional utility application. Inventors can use the time, for example, to find funding, make a prototype, or explore the market.

Once I have a patent, who enforces it?

The patent owner enforces the patent. Make sure to label your invention with the patent number to warn competitors.

How do I get started?

Dunlap Bennett & Ludwig can help! You can call our Patents Department at 855-818-3663 or email us at patents@dbllawyers.com.

To learn more about Dunlap Bennett & Ludwig and how we assist you with your legal matters, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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Posted in: Intellectual Property, Intellectual Property - Patents

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