What is a Patent
An inventor may obtain a patent by applying for one with the United States Patent and Trademark Office (USPTO). A patent operates as a property right for the inventor, similar to how owning land lets you prevent other from entering it, a patent gives the owner the ability to exclude others from their invention. A patent does not grant the owner a right to make, use, offer for sale, or import a product, rather it only allows the owner to exclude others from doing so. A patent allows a holder to assign the patent to another, and generally also allows the owner to authorize use of their invention through licensing. Patent rights are not indefinite, they expire after a limited period of time and enter the public domain, becoming available for anyone to use.
Patents vs. Trademark and Copyright
Patents, copyright, and trademark are all part of what is generally referred to as “intellectual property” rights. Trademarks protect words, phrases, logos, slogans, shapes, configurations of goods, or even sounds which may identify the source of a good or service. Trademarks allow the owner to prevent others from using the same or similar marks that would cause confusion and harm the competitiveness of the owner’s mark. Copyright on the other hand protects original works including literature, music, software, architecture, etc. and allows the owner to prevent others from reproducing, making derivatives, distributing copies, displaying the work in public, or performing the work publicly. Another important difference to note is that some copyright and trademark protections are automatic (though you can federally register to gain additional benefits), but an inventor gets no patent protection unless they pursue the patent application process through the USPTO.
Types of US Patents
There are three types of US patents: utility patents, design patents, and plant patents.
Utility patents cover any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvements on these. A utility patent cannot however be a law of nature, natural phenomena, or an abstract idea. Utility patents last for 20 years starting from the date the application was filed. Within the category of utility patents, you may have heard of a provisional patent application and non-provisional patent application. We recommend consulting a patent attorney to discuss which is appropriate for your needs.
Design patents are for ornamental, rather than functional, inventions. If the design is functional rather than ornamental, such as for a key, then the correct patent type is a utility rather than design patent. A design patent can be for any new, original, and ornamental design for an article of manufacture. That is to say, generally speaking, a design patent protects the way something looks, rather than the way it works or is used. Design patents last 15 years from the date the application is filed.
A plant patent is granted to anyone who invents or discovers and can asexually reproduce any distinct new variety of plant. Asexual reproduction means to create an exact genetic copy off the plant without the use of fertilized seeds. Plant patents also last 20 years from the date of filing and allows the owner to exclude others from asexually reproducing the plant, as well as using, offering for sale, or selling a plant reproduced in such a way.
The US used to follow what was called a first to invent system, meaning that the inventor who could prove he had the idea first, was the one granted patent rights for said invention. In 2011 the America Invents Act (AIA) was passed which moved the US to a First-to-File system, putting it in line with most of the international community. Under the First-to-File system, the inventor must not only be the true inventor, but also must be the first to file an application with the USPTO.
This is high-level overview of some of the basics of patents, if you think you have an invention that might be eligible for a patent it is important to ask a trained and qualified patent attorney to assist you with navigating the US patent system. Having a skilled patent attorney can help you get the broadest coverage possible, quickly navigate the system, and deal with any issues that arise during the filing process.
For a more in-depth look at these and other patent issues refer to “U.S. Patent Law For People In A Rush.”