Many people think of patents in connection with inventions. But patents are granted for a wide range of creations. You can be granted a design patent that will protect the “look” of a product or even a plant patent to protect a particular hybrid plant.
The U.S. Patent and Trademark Office (USPTO) Summary Definition of Patents
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “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. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
The Three Types of Patents
There are three types of patents: utility patents, design patents, and plant patents.
- Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.
- Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
For a patent to be effective in the United States, you need to apply for the patent within one year of the first commercial use of the product. But it is recommended that you apply for the patent before the product is placed on the market.
The authority of a patent is limited to the country in which you have applied for that patent. You need to apply for a patent in each country where you intend to market your product. In most countries, application for the patent must be made prior to placing the product on the market.
Most U.S. patents have a life span of 20 years, commencing with the date of application. Patents cannot be renewed. Design patents offer protection for 14 years.
To be awarded a patent, an invention must be considered novel and nonobvious. And, even though the federal government may award a patent, it may later be revoked if it is found to infringe on another patent.
How Does Patent Protection Work?
A patent gives you the right to litigate against another party whom you believe is infringing upon your patent. You must take your case to court—there is nothing automatic in patent protection. If the alleged infringer is a major corporation, be prepared for rapidly mounting legal expenses. You also need to consider the very real possibility that another individual or company may take legal action against you for infringing on its patent, even though you hold a valid patent for your product, design, or invention.
Should You Hire a Lawyer to File Your Patent Application?
In theory, you can file a patent yourself. In the U.S., the basic application fee is several hundred dollars. The process is quite complex, though, and you would be well advised to spend the several thousand dollars necessary to have the filing done by a patent attorney. If you are awarded the patent, you will need to pay additional fees to the patent office over the course of the patent life to keep the patent active throughout its term.
Takeaways You Can Use
- There are three types of patents: utility, design, and plant.
- A patent attorney can guide you through the complex process.
- There is nothing automatic in patent protection.
