ANSWERS TO FREQUENTLY ASKED PATENT LAW QUESTIONS
This document provides inventors and business owners with answers to frequently asked questions about patents and the patenting process.
What is a patent?
A patent is a legal document that gives a patent owner a right to exclude others from making, using and selling an invention. The right to exclude others or monopoly on an invention can be a significant competitive advantage to a patent owner or business. In order to acquire a patent an applicant must file a patent application with the United States Patent and Trademark Office (“USPTO”).
When should I file my patent application?
Generally speaking, a patent will be awarded to an inventor who first files a patent application on an invention in the USPTO. This is known as a first-to-file system. Therefore, keeping an idea or invention confidential is extremely important. If you must disclose your invention before a patent application is filed, then you should have a Non-Disclosure Agreement signed by the receiving party. Generally speaking, because the entire world operates under a first-to-file system, the first inventor to file a patent application on an invention will acquire the patent rights on that invention.
What is a utility patent?
A utility patent protects any functional features or aspects of an invention. Generally speaking, the patent term of a utility patent, or length of time for which a utility patent is enforceable against others, is 20 years from the filing date of a utility patent application.
Do I need a prototype to file a patent application?
You do not need a prototype in order to file a patent application. The attorneys at The Plus IP Firm have filed many patent applications without ever having a working prototype. While having a prototype does provide other advantages, a prototype is not necessary to file a patent application. The attorneys at The Plus IP Firm can assist you in developing your ideas in order to prepare and file a patent application on your behalf.
What is a design patent?
A design patent protects, original and ornamental features of an invention. A design patent will protect the visual or aesthetic characteristics of a design. Generally speaking, the patent term of a design patent, or length of time for which a design patent is enforceable against others, is 14 years from the filing date of a design patent application. An inventor can acquire both a design patent and a utility patent on a single invention.
Does a “poor man’s patent” protect an inventor?
A “poor man’s patent” is the term used for when an inventor describes an invention in a document, inserts the document in an envelope, and then mails the envelope to him or herself. Because the United States is a first-to-file system, the first person to file a patent application on an invention will get the patent rights to an invention. As a result a “poor man’s patent” will not protect an inventor. Therefore, it is important for an inventor to file a patent application in order to secure the patent rights on an invention.
What is a non-provisional patent application?
A non-provisional patent application must be filed in order to acquire patent rights on an invention. The main part of a non-provisional patent application is a section known as the “claims” section. The claims section of a patent application describes what an applicant believes is inventive about his or her invention. The claims section must be carefully drafted to ensure that the scope of the invention is not unnecessarily narrowed, while at the same time the claims must be drafted to ensure that the claims have the highest probability to pass examination by an examining attorney at the USPTO.
What is a provisional patent application?
A provisional patent application is a document that when properly drafted and filed with the USPTO establishes an early filing date for an invention. An early filing date is important in patent law because, the first person to file a patent application on an invention will acquire the rights on that invention. A provisional patent application never actually matures into an issued patent unless a non-provisional patent application is filed within one year of the filing date of a provisional patent application. A provisional patent application can be less expensive to file than a non-provisional patent application because the USPTO filing requirements and attorney time required to draft and file a provisional patent application are much less than that of a non-provisional patent application. Additionally, a provisional patent application allows an inventor to establish an early filing date while allowing an inventor to “tweak” features of an invention before filing a non-provisional patent application.
When can I use “patent pending” on my marketing materials?
An inventor can claim “patent pending” status after filing a provisional patent application or a non-provisional patent application with the USPTO. An applicant may claim “patent pending” status as long as a patent application is pending with the USPTO. “Patent pending” status may be helpful for marketing as well as to possibly ward off some competitors.
Why shouldn’t I file a provisional patent application with a “do-it-yourself” website?
Inventors should be cautious when choosing to file a provisional patent application by themselves or with a budget or “do-it-yourself” website. While the formalities involved in filing a provisional patent application are somewhat relaxed, an applicant must ensure that the provisional patent application adequately discloses the invention. If a provisional patent application does not adequately disclose an invention, then there may be issues when attempting to enforce a patent claiming benefit to that provisional patent application. Businesses should seek the advice of a patent attorney registered to practice by the USPTO, like the attorneys at The Plus IP FIRM, when preparing a provisional application to ensure that their provisional patent application will adequately protect an invention.