A patent is a right granted by the U.S. government to an individual(s) who has invented something “useful, novel and non-obvious.” The exclusive right to “make, produce, sell or import” the invention is granted under Article 1 §8, clause 8 of the U.S. Constitution. That clause of the Constitution reads: “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.”
There are three main types of patents: design patents, plant patents and utility patents. Design patents grant protection for the way something looks. For example, the treads on a tire are often the subject of design patents. A plant patent is a patent granted for the development or discovery of certain types of plants. The most common type of patent, and the one that people generally think of when they hear the word patent, is the utility patent.
Utility patents are granted for the majority of inventions and are based on the function of the invention. For example, if you developed a new mousetrap, you would probably seek a utility patent. Utility patents generally expire twenty years from the date the application is filed. Typically, it takes about three years from the filing date until a patent is ultimately granted. Thus, patents are actually enforceable for approximately seventeen years. Although certain rights may retroactively exist after a patent issues. The Patent Office will grant a utility patent if the invention is a “new, useful and non-obvious” machine, manufacture, composition of matter or a new use for one of the above. Generally, one can make a successful argument for an invention being new and useful. The non-obvious aspect is generally the most difficult to prove. Although a skilled patent attorney can often obtain patent protection for an invention, it is the scope of the patent which is essential. More specifically, if the scope of the patent is narrow, the patent may not have much value. There is no requirement that a patent search be done prior to filing a patent application.
Determining if a patent search should be done depends on a few factors such as:
You should consult with a patent attorney to determine if an extensive search should be done on your invention prior to filing the application.
There are three groups of people who may file a patent application in the United States. Registered patent agents, registered patent attorneys or the inventor. Although inventors may file their own patent applications, drafting a patent application is a highly technical and time consuming project and is only recommended for those who can devote a substantial amount of time doing research and writing the application. It is recommended that only the very few inventors who are extremely familiar with United States patent laws attempt to draft their own application. Failure to draft the application properly can result in a loss of patent rights. There is no requirement that an individual have a working prototype of their invention in order to file a patent application. However, the application must clearly describe how the invention works in full detail.
For more information on patents, visit the United States Patent Office website: www.uspto.gov