How to patent an idea – or, more appropriately, how to take your idea and move it into a state in which you can receive a patent and protect it. 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 15-20 years from the date on which the application for the patent was filed in the United State.
The key here is that a patent is granted for inventions, not ideas.
There are three types of 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; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Step One – Patent Search
How to patent an idea? You can patent your idea if it’s a process, a machine, an article of manufacture, a composition of matter, or an improvement of any of these. Abstract ideas, natural phenomenon, and inventions deemed not useful are ineligible for patents. The idea that needs to be reduced to obtain a patent must be new, non-obvious and useful.
The term “useful” in this connection refers to the condition that the subject matter has utility and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent. Old ideas, whether previously patented or not, may not be patented. To check, you’ll need to conduct a search of previous public disclosures (also called “prior art”). This includes previously patented inventions in the U.S., foreign patents, and printed publications.
Here at Verna Law, P.C., a patent search can be formalized with a list of patents that have similarities and an opinion letter (signed by both an attorney and a patent agent) discussing the differences between the new idea and the prior art. This helps in understanding what is new about the new idea and how to show the United States Patent and Trademark Office what is new.
Here is a video blog on what a patent is:
Step Two – Filing a Patent
A U.S. non-provisional (or formal) patent is a standard patent which protects an invention within the U.S. for 15-20 years after filing the patent, depending upon the type of patent and when it was filed. The process is lengthy; it typically takes between one and three years to receive a formal patent. In order to receive a patent, the application must contain words and drawings that clearly:
- Demonstrate how to make and use the invention.
- Explain why the invention is different from all other inventions (the prior art).
- Precisely describe what aspects of the invention should be patented.
The words that demonstrate how to make and use the invention are called claims. The claims define, in technical terms, the extent and the scope, of the protection conferred by a patent, or the protection sought in a patent application. In other words, the purpose of the claims is to define which subject-matter is protected by the patent (or sought to be protected by the patent application). This is termed as the “notice function” of a patent claim—to warn others of what they must not do if they are to avoid infringement liability. The claims are of the utmost importance both during prosecution and litigation alike. In a printed patent, the claims usually come last.
In the USPTO database, they are first, immediately after the bibliographic information and abstract. In either case, the claims are usually preceded by the phrase “What is claimed is…” or simply “I claim…”. The claims are the heart of a patent, in that they define the limits of exactly what the patent does, and does not, cover. That is, the applicant/owner for the patent has the right to exclude others from making, using or selling, only those things which are described by the claims. Reading and understanding the claims of a patent is the key to determining if a given product or process infringes the patent. This is not an easy thing to do, for the following reasons:
- claims are written in a very legalistic and stilted way;
- the claims don’t necessarily mean exactly what they say – they must be properly interpreted and explained by the patent specification and drawings;
- the terms used in the claims might possibly be limited by things that the patent applicant said to the US Patent and Trademark Office while the application was pending (the prosecution history);
- in some cases the terms in the claims might mean more than they appear to, under the “Doctrine of Equivalents”.
Once the USPTO grants the patent based upon the above-referenced criteria, it is up to the patent owner to enforce the rights the patent grants.
Step Three – Patent Monitoring and Enforcement
After a patent has been approved, the patent owner has a limited-time monopoly on the creation, use, sale and importation of the invention. Once the USPTO grants the patent, enforcement lies with the patent owner. Owners have the right to sue anyone who makes, uses, or sells the invention without the owner’s consent.
These rights last 20 years from the date of the application. If a product or service sold in the marketplace is found to infringe upon the patent, courts can issues injunctions and award large damages, particularly for “willful” infringers (those who knew of the patent, should have known they were infringing, and did it anyway). If another product or service sold in the marketplace has the exact same claims as a patented invention, then there is literal infringement (copying of every claim). Literal infringement means that the elements of a patented claim are present (as recited in the claim) in an infringing article or product. When we analyze features of an article/product, we compare them with claims of a patent. Hence, this happens by checking each claim in the patent and seeing if each claim feature is found in the allegedly infringing product.
There is another type of infringement called the Doctrine of Equivalents, which means that the invention is so close to the claims described in a patent that a court will find it to be substantially similar and therefore infringing. Patent enforcement requires both legal and technical due diligence to determine if there is a viable patent infringement claim (can the patent withstand a challenge to its validity; can infringement be proven with claim construction; and are there sufficient damages to cover the cost of a patent infringement lawsuit).
A patent owner needs to have enough data and information to know how similar the patent owner’s invention is to a possibly infringing product.