What Is a Patent?
- Utility Patent – A utility patent is granted to an inventor who invents or discovers any new and useful process, machine, article of manufacture, composition of matter, or any new and useful improvement of any of the foregoing. Two types of utility applications – provisional and nonprovisional – may be filed, however, only a nonprovisional application is examined by the USPTO and may result in a patent. Utility patents are useful for protecting inventions that are mechanical, chemical, electrical, biological, and software in nature as well as processes and methods related to any of the foregoing and inventions related to business methods. Utility patents are the most common type of patent. If your invention does not relate to an ornamental design or a plant, you most likely require a utility patent.
- Design Patent – A design patent is granted for the invention of a new, original, and ornamental design for an article of manufacture. Design patents are used to protect the visual ornamental characteristics, which are embodied in or applied to an object (i.e., an article of manufacture). The design may relate to the configuration or shape of the article, to surface ornamentation applied to the article, or to a combination of the foregoing.
- Plant Patent – With some exceptions, a plant patent is granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plants. The plant cannot be found in an uncultivated state or one that is propagated from a tuber. Hybrids, mutants, sports, and transformed plants are protectable by plant patent, as are macrofungi and algae, however, bacteria are not.
What Types of Subject Matter Cannot Be Protected By Patent?
What Are the Parts of a Patent Application?
The specification includes all of the text that provides brief and detailed descriptions of the invention and any alternate embodiments as well as brief descriptions of the items shown in the patent drawings. The specification may include certain distinct sections including a cross-reference paragraph to related applications, the field of the invention, a description of the background of the invention, a summary, an abstract describing the invention that will be printed on the cover page of the published patent application and any patent that issues from the application, and a detailed description of the invention or inventions disclosed in the application.
The drawings illustrate various views of the invention described in the claims of the application. Alternate embodiments (for example, variations in structure among different versions of the invention) may also be shown in the drawings. Drawings for inventions related to software, business methods, and other method-related inventions may be included in the application in the form of flowcharts and diagrams.
The claims are the most important part of a patent application and patent. The claims describe the metes and bounds of the subject matter for which patent protection is being sought in a pending patent application and for which patent protection has been granted by the USPTO in an issued patent. The specification and drawings are used to interpret the meaning of terms used in the claims where the plain meaning of the claim language is inconsistent with the use of such terms in the specification.
What Is the Difference Between a Nonprovisional Application and a Provisional Application?
Should I Conduct a Patent Search?
Although conducting a patent search is strongly recommended prior to filing a nonprovisional patent application, such searches are optional. Note, however, that the USPTO conducts prior art searches as part of its routine examination of each patent application. Due to issues related to the date and public availability as well as the subject matter described therein, not all references located through a patent search conducted by a patent applicant or by the USPTO will constitute prior art. Under U.S. patent law, references discovered by or known to an inventor, patent applicant, or the inventor or applicant’s patent attorney, which are relevant to the patentability of the claims set forth in the patent application, must be disclosed to the USPTO for consideration in its examination of the application. Failure to disclose such references may result in the subsequent invalidation of any patent that issues from the application.
In addition to patentability searches, our firm assists clients in conducting freedom-to-operate (also known as patent clearance) searches and opinions.
What Happens After a Patent Application Is Filed?
Rejections are raised by the examiner in USPTO-issued correspondence known as office actions. The patent applicant is provided with an opportunity to respond to an attempt to overcome the rejections through argument, amendment of the claims or other parts of the applications, or a combination of both. Several office actions may be received in connection with a patent application before a patent is granted. Once the examiner is satisfied that all issues raised in the rejections have been addressed and overcome, the application may be allowed after which it may ultimately issue as a patent after all governmental fees have been paid and if no new reasons for rejection are raised by the USPTO.
If the rejections in a USPTO office action cannot be overcome, other options may be available for continuing the pursuit of patent protection for the invention. Where a response to an office action is not filed within the allotted time for responding, the application will become abandoned. Generally, once a patent application becomes abandoned, if no additional patent applications for the invention have been filed, any potential patent right that may have otherwise existed is lost.
How Long Is the Life of a Patent?
Can Rights to a Patent or Patent Application Be Granted to Another Person or Business Entity?
Without transferring ownership rights in a patent or patent application (and the invention or inventions disclosed therein), limited rights to make, use, sale, offer for sale, distribute, and/or import the invention or inventions that are the subject matter thereof may be granted by the patent owner or patent applicant to a licensee that is another person or a business entity by means of a patent license agreement.
Does the USPTO Enforce a Patent Owner’s Patent Rights Against Infringers?
What Happens Once a Patent Expires or a Published Patent Application Becomes Abandoned?
Can an Invention or Design Be Protected By a “Poor Man’s Patent”?
When Can the Patent Markings “Patent Pending,” “Patented,” and a Patent Number Be Used?
Patent owners and their licensees who sell patented articles are required to mark the patented articles with the marking “Patent” or “U.S. Patent” and the patent number, for example, U.S. Patent No. 1,234,567. Failure to do so negatively impacts the patent owner’s ability to recover damages from infringers. Federal law provides other marking options for inventions that cannot be readily marked with the required marking.
Patent applicants may use the marking “Patent Pending” or “Patent Applied For” on articles for which patent protection is being sought in a pending patent application, however, no legal requirement requires such markings to be used.
False use of the foregoing markings (e.g., using one of the markings reserved for patented articles and other inventions when no patent has been granted; Or using “Patent Pending” or similar language with an article when no patent application has been filed) is known as false marking. False marking is a violation of federal law that may subject the violator to governmental fines as well as civil lawsuits from competitors.
Can Inventions and Designs Be Protected in Foreign Countries?
Please contact one of our registered patent attorneys if you are interested in conducting a patentability search or if we may assist you in the preparation and filing of a patent application in the United States or in any foreign jurisdictions or with the drafting or negotiation of a patent license agreement.