Whether you are an independent inventor, an fledgling entrepreneur or a seasoned inventor who is going out on your own for the first time, the best thing you can do for yourself is to become familiar with the concepts and procedure associated with protecting your inventions. Obtaining patents is not easy for the uninitiated, and without some familiarity you will be wandering aimlessly and wholly incapable of making sound business decisions. Simply stated: Inventors who are completely unfamiliar with the patent process also won’t be able to help in any meaningful way with the patent process, and they will make poor strategic decisions that can lead to the loss of all rights.
So let’s start with the basics. A patent is a proprietary right granted by the United States federal government to an inventor who files a patent application with the United States Patent Office. Therefore, unlike copyright and trademark protection, patent protection will only exist upon the issuance of a patent, which requires you to file a patent application. Simply stated, if you do not obtain a patent you have no exclusive rights. This is why inventors should never disclose their invention outside of a confidential relationship. Such a relationship is legally created immediately upon seeking professional advice from a patent attorney or patent agent, but in all other situations if you do not have a patent you should be extremely cautious about disclosing invention information without a confidentiality agreement. What others learn from you outside of a confidential relationship can be used with or without your permission, and without giving you any compensation.
Furthermore, despite what you may have been told or read, keeping a detailed invention notebook, even if you mail a description of the invention to yourself, provides no exclusive rights whatsoever. It is extremely important to keep detailed invention records in case you ever need to prove the particular date you invented, which even in some extremely limited ways may still be relevant even under a first to file regime ushered in by the America Invents Act (AIA), but keeping such records will never provide you any exclusive rights. You absolutely must file a patent application and have that application mature into an issued patent in order to obtain exclusive rights to your invention.
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There are essentially three types of patent applications that can be filed. These are:
— Non-provisional Patent Application, which would lead to a utility patent that protects the operation and functionality of an invention.
— Design Patent Application, which would lead to a design patent that protects the way an invention looks, but not how it operates or functions.
— Plant Patent Application, which protects new and distinct asexually reproduced varieties of plants, other than those that are tuber propagated.
Each type of patent confers to the patent owner “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or importing the invention into the United States. It is important to note, however, that patents do not protect ideas, but rather protect inventions and methods that exhibit patentable subject matter. In the United States virtually everything can and does qualify as patentable subject matter. You can patent new and unique machines, devices, process of doing something, process of making something, living matter (such as a bio-engineered organism), business methods, software, compounds and much more, including improvements that relate to any of the aforementioned types of invention. Those things that cannot be patented include laws of nature, mathematical equations, physical phenomena, abstract ideas, slogans, tradenames or literary works. Literary works can be protected under copyright laws, and slogans or tradenames can be protected under trademark laws.
You can also file what is called a provisional patent application, which is really a precursor to a non-provisional patent application. Unlike the other patent applications mentioned above, a provisional patent application will not mature into an issued patent. A provisional patent application instead acts as an economical way to start the patenting process by securing a priority filing date, which also affords the applicant the right to legally say that there is a “patent pending.” There are few formalities required for filing a provisional patent application, and the Patent Office fee is less than filing a non-provisional patent application. Independent inventors should, therefore, strongly consider starting with a provisional patent application. Before considering a provisional patent application I strongly recommend inventors read The Good, Bad & Ugly: Truth About Provisional Patent Applications. If you are going to file a provisional patent application it must be done properly in order to provide any benefit later. I am a big fan of proper provisional patent applications, which can be particularly helpful for securing a filing date while you continue to refine aspects of the invention, but a provisional patent application is only as good as the disclosure filed.
If you are going to ultimately receive a patent, whether you start with a provisional patent application or not, you are going to need to file a non-provisional patent application within 12 months of filing your provisional patent application. Without knowing a good deal about an invention it is very difficult if not completely impossible to give a ballpark estimate as to likely costs associated with filing a non-provisional patent application. Nevertheless, for some rough guidance regarding what you can expect to pay in attorneys fees through filing of a non-provisional patent application please see Cost of Obtaining a Patent.
For more information on the patent application process please see our Overview of the Patent Process and A Beginner’s Guide to Patents and the Patent Process. If you are stuck at the idea stage in your invention I recommend reading Moving from Idea to Patent and Protecting Your Invention When You Need Help. If you are contemplating whether you want to work with an invention company to help procure patent protection and obtain marketing assistance, please first read The Truth About Invention Promotion Companies and How to Find Valuable Invention Services.
For those who would like to try and draft and file their own patent applications, I have developed a unique process called the Invent & Patent System, which allows inventors to do much of their own work toward preparing and filing patent applications. You can then take the output of the system and file it as a provisional patent application, or you could have an attorney or agent take what you provide to create either a provisional patent application or non-provisional patent application and file it for you. The system gives you the inventor the choice with respect to how much you want to do on your own. Since its inception in 2004, this system has helped independent inventors file tens of thousands of provisional patent applications. Of course, if you can afford to hire an attorney to represent you that is the way to get the best patent application and ultimately the broadest patent rights.
If you are going to attempt to do things on your own and file a provisional or non-provisional patent application without the assistance of a patent attorney or patent agent, I strongly recommend reading these patent drafting articles that contain numerous tips and suggestions for making a better, more complete disclosure:
- Patenting Antibodies: Written Description Considerations in Antibody Patents
- Claimed and prior art ranges must have meaningful difference for nonobviousness
- A Primer on Indefiniteness and Means Plus Function
- Patent Drafting Webinar: Trends and Realities of 112 Disclosure Requirements
- Patent Drafting: Understanding the Enablement Requirement
- Patent Drafting 101: Going a Mile Wide and Deep with Variations in a Patent Application
- Beware of Conditional Limitations when Drafting Patent Claims
- Breadth through Specificity: Supporting Alternative Embodiments with Multiple Examples in Patent Applications
- Definiteness and Patent Drafting: The Nautilus Surfaces
- Optimizing Patent Applications: Drafting to Withstand Challenge
- Patent Application Drafting: Using the Specification for more than the ordinary plain meaning
- Federal Circuit Affirms Patent Invalidity and District Court’s Denial of Post-Judgment Motions
- Examining USPTO Business Method Patent Eligibility Examples
- Patent Drafting Tip: A comma affects meaning of items in list
- Flexible problem-solution analysis for drafters with Europe in mind
- Water Balloons, Weapons of Mass Destruction and the PTAB
- The quest for patent quality: European inventive step and US obviousness
- Patent Drafting 101: The Basics of Describing Your Invention in a Patent Application
- Patent Drafting for Beginners: The anatomy of a patent claim
- Comparing and Contrasting European 2-part claims with US Jepson claims
- How to Patent Software in a Post Alice Era
- FREE WEBINAR: Drafting Patent Applications to Overcome Alice
- Claim differentiation does not broaden claims beyond their meaning in light of the patent as a whole
- Federal Circuit affirms Apple iPhone patent victory over GPNE
- Specification Focus on one Embodiment Cannot Limit the Invention if Specification Contemplates Other Embodiments
- Federal Circuit Revisits Scope of Markush Group Claim Elements, Vacates Summary Judgment on Erroneous Construction
- CAFC: Software means plus function claims Indefinite for failure to disclose algorithm
- Drafting Patent Applications: Writing Method Claims
- An Introduction to Patent Claims
- The Quid Pro Quo – How Bad Patents Can Harm A Startup Company
- Is This Patent Any Good? How to Tell a Good Patent From a Bad One
- Pursuit of Extremely Short Patent Claims
- The First Patent: A Roadmap for a Startup’s Patent Portfolio
- New PTAB Rules Level the Playing Field for Patent Owners in IPR
- A Better Way to File Patent Applications
- How to Get Broader and Good Quality Patents
- Is your provisional patent worth anything?
- Patent Drafting: Define terms when drafting patent applications, be your own lexicographer
- Patent Language Difficulties: Open Mouth, Insert Foot
- Patent Drafting: The Use of Relative Terminology Can Be Dangerous
- Garbage in, Garbage out: A quality patent requires patent quality from the start
- Patent Drafting: Learning from common patent application mistakes
- Patent Drafting: Distinctly identifying the invention in exact terms
- Patent Drafting: Understanding the Specification of the Invention
- Tricks & Tips to Describe an Invention in a Patent Application
- Best Practices for Drafting Software Patent Applications post-Alice
- Negative Claim Limitations Do Not Have a Higher Written Description Standard
- CAFC Says Prior Art Reference Sufficiently Enabled Based on Applicant Admissions
- Patent Drafting 101: Beware Background Pitfalls When Drafting a Patent Application
- Patenting business methods and software still requires concrete and tangible descriptions
If you feel like you need the assistance of a patent attorney please contact me to discuss how I might be able to help.