Patents: (Almost) Everything Inventors Need To Know
The patent process is far from young, yet its still in transformation mode. Over the past 25 years, we've built a web of published and digitized information about patents and the patent process.
Today, the web is chock-full of information about what a patent actually does, how it protects you, what kind of patents are available, when inventors should consider getting one, how to commence the application process and secure a patent, what to do about your new invention idea while you’re going through the patent process...the list goes on.
It's as if a vessel carrying all US patent documents capsized and each piece of information was sporadically strewn around the wrecked ship for you to search and salvage.
Navigating The Wreckage
Yet with all the information available at your fingertips, when it comes to patents you, as an inventor, still have a lot of questions.
What you really need is to find very clear, pragmatic, and trustworthy information and answers to your questions pertaining to patents - and all in one place to add a layer of trust and consistency.
You probably have an idea that could impact the way the world operates or works around a specific challenge. It just may be a lucrative idea.
The last thing you want is to miss out on what could be a life-changing opportunity.
We can’t answer every question that relates to patents - first because it would take forever to read this; second, because I don’t know all the questions that you have.
But we do our best to continue to bring you honest advice, relevant answers to your patent and invention questions, and point you toward the right resources to help you gain success with your invention idea.
So here’s what we’re going to cover today:
When You Think You Have An Invention Idea, What Does A Patent Actually Do?
If it had to be boiled down to one word, a patent offers protection.
So does that mean if you patent your idea or invention, you are protected from someone stealing it?
It's a little less cut and dry than that; saying yes to that question would be somewhat pf an uninformed statement.
A patent, when granted by the USPTO, gives the holding inventor a property right that bars other members of the public - citizens, companies - from using, selling or making what you have laid claim to.
I'll be the first to admit that the definition in and of itself leaves some ambiguity.
That's why there are people to help you with patents. But continue on first - educate yourself so when you do seek help you have a knowledge base. As an inventor, you always want to be well-informed so as not to betaken advantage of.
The Most Important Thing To Know About Patents
I mentioned above that there is a lot of information available about patents online. Much of that information could be misinformed and improperly directed. If you only know one thing about patents, know this:
Patents do not give the patent owner the right to make, use, or sell their invention or idea; the patent only gives the patent owner the right to exclude others from making, using or selling the invention.
Patents essentially give the inventor intellectual domination over the idea or process they have been granted a patent for.
This means they have the exclusive right to control how their inventions are used.
This level of control gives inventors the benefit of reaping the financial rewards of their work.
Patents are a tangible and legally-binding manifestation of an inventor's thinking and innovation; they allow a person to actually own an idea.
What Kinds Of Patents Are Available To Inventors?
There are essentially three different types of patents inventors should know and understand:
Apart from the "Big 3", it is possible for inventors to file improvement patents. These still fall under one of the three types of patents above, but they are innovations and improvements upon existing intellectual property.
There is quite a bit of gray area in what the USPTO accepts as an "improvement" so it's a good idea to research if your improvement is patentable.
What the USPTO does not grant patents for are mere ideas or suggestions.
If you've ever asked "How can I patent an idea?" - you can't. Not until it's researched and developed.
The USPTO requires complete descriptions of the actual subject matter for which inventors apply for patents.
An invention is not patentable if:
There are certain limited exceptions to these exclusions depending on whether the previous disclosures involved the inventor or a joint inventor.
Even if the prior art (some type of evidence that your invention or idea may actually already exist) does not match the invention exactly, the USPTO still may reject a patent application if the differences would be obvious before the effective filing date of the claimed invention to a "person having ordinary skill in the art" to which the claimed invention pertains. [35 US Code 102(a).
These exclusions essentially define the term "prior art".
As an example, the mere substitution of one color for another would not be patentable.
On the other end of the spectrum, improvements and other applications can be patented, as mentioned above.
For example, I heard a commercial on the radio for a lidocaine patch.
The inventor or manufacturer didn't invent lidocaine, they simply developed a non-obvious delivery method to solve a problem (and, interestingly, the commercial cited "patent pending" status).
So if you've thought of a way to improve an existing product, the biggest question to answer is "is it obvious?" This must be determined by an expert in the field.
For the lidocaine example above, a physician could be the expert "skilled in the art" who says whether or not a patch to deliver the pain medication was obvious.
How Do You Apply For A Patent?
Thousands of inventors have navigated the patent system on their own without lawyers.
That's not to say we don't recommend using an agent or attorney - it's just not the only way to apply for your patent.
To obtain a patents on your own, you have to make sure your invention is patentable.
That means you have to affirmatively answer the following questions:
Beyond that, there are still other steps to take before you file your patent:
You must consistently keep careful records of every step of the invention process and every description of your product you can think of.
You need to diagram and draw every aspect and modification of the invention. The drawings will be included in your patent application.
In nearly all cases, you will need to build and test a scale model or prototype of your idea.
Beyond that, there is still other work to do on the business side. Inventors should assess the commercial potential of their inventions. This comes from doing market research to figure out if there is market space for your idea and an audience with a need for your product.
Remember that typical USPTO fees and costs to obtain a patent range from $1,500 up to $20,000+. Before spending the time and money to file a patent application, it's wise to explore everything you can to ensure you have a successful future with your invention.
Before you file your patent application...
Before filing your full application, you should file for a provisional patent application with the USPTO.
Provisional patent applications allow inventors to claim patent pending status at a small fraction of the time and expense of regular patent applications, which they must file within a year of the provisional filing or forfeit the provisional filing date.
This provides them the opportunity to work on and enhance their inventions and/or prototypes.
If you want to begin your patent application on your own, this guide will prepare you to fill out your patent application in detail.
What Inventors Need To Know About Patent Law
The United States Patent and Trademark Office (USPTO) of the US Department of Commerce grants patents to protect inventions and to register trademarks.
Patents grant property rights to inventors, generally for a term of 20 years from when they file their applications for them.
Patents grant not the right to make, use, offer for sale, sell, or import, but rather "the right to exclude others from making, using, offering for sale, [selling, or importing]" the invention. [United States Code Title 25 Section 154(a)(1) (35 US Code 154(a)(1)]
Enforcement of the patent is for the inventor/patentee to manage.
If you feel that some right of your patent has been violated, readinga more thorough breakdown of patent law is recommended.
The best possible recommendation here is to call the USPTO directly if any of the legalities are in questions.
Since every inventor and invention idea is unique and mutually exclusive from another, the idea of a broad stroke law that wraps it up nicely is hard to come by.
Different laws apply to each stage of the patent process (pre and post application and grant).
Also, each type of patent (utility, provisional application, plant, etc.) has various exclusive laws guarding it.
If something does not seem legitimate to you, bring it forth to the utmost authorities - that’s really all.
For the most comprehensive resources (that are searchable), you can view the following two documents:
Another branch of patent law is patent infringement, or patent violation, laws.
f you need someeducation on patent infringement, head on over and have a read.
What Does "First To File" Mean For Patents?
The US became a "first to file" nation in March, 2013. This moved us away from the existing "first to invent" policy and to a system where America gives the patent to whoever files first.
Before 2013, the US was the only nation in the world on the first-to-invent system.
Unfortunately, for inventors, this move didn't make patenting any more fair; the system still favors large companies with deep pockets.
To read more on first to file, PatentlyO has some information here.
How Do You Ultimately Make Money From A Patented Idea?
Inventors take one of two main approaches to profit from their patents: They allow others to utilize their inventions under licenses, or they utilize their inventions themselves.
In licensing, the main objective is to convince prospective licensees that the invention would be of value to them under legal licensing agreements.
There are several ways to produce this perception:
When the inventor takes the product to market personally, there is no need for a perception of value from other producers.
If the product acquires meaningful market share, competitors take note.
The defensive strategy in this approach is to hinder competitor ability to copy by raising the real or apparent risk and cost of knock-offs.
This strategy buys market lead time, so use all available and cost-effective legal tools to create barriers to copying.
Reminders of infringement remedies usually have deterrent effect unless a copycat with extraordinarily deep pockets decides that piracy would be profitable in the long run despite legal penalties and expenses.
If the cost/benefit result of a patent is in doubt, the benefit of a trademark is clear.
Assertion of a trademark requires simply the use of "®" or "™" after the brand or product name, filing for a registered trademark costs much less than for a patent, and the burden of proof of infringement is less.
On this note, the ultimate goal is for customers to think of the product name when they think of the product generally.
A Wrap-Up On Patents
Patents and the process of acquiring them are the most important part of the invention process for inventors to understand and master.
If the details sound confusing, they will make more sense after you've gone through it once or twice.
That said, I don't recommend going at it alone if you're new to the process. Reach out to us, we're open to conversation and happy to point you in the right direction. Just contact us through the button below.