Patent definition: [pat-nt] noun; the exclusive right granted by a government to a manufacturer to manufacture, use, or sell an invention for a certain number of years.
United States Patent and Trademark Office (USPTO) Patent Definition: the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. A new patent lasts for 20 years from the date of application. A patent grants to the inventor 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. U.S. patents are only effective within the United States, U.S. territories, and U.S. possessions.
The USPTO divides the patent definition into three subcategories:
1) 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;
2) Design patents: may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents: may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
There is one more patent definition you should know:
Provisional Application for Patent. In
1995 the USPTO began accepting provisional applications for utility patents as
a lower-cost first patent filing. This
type of application provides the means to establish an early effective filing
date in a patent application and permits the term "patent pending" to
be used when discussing your invention.
You will still have to file a non-provisional application for a patent within
12 months. There are pros and cons when
considering a provisional application.
You should discuss these with a professional.
Based on the patent definition categories, the utility patent is generally accepted by most inventors as the "holy grail" of patents. It can be very valuable as it allows the inventor to control the matter patented for two decades during which time he can exclusively control manufacture and sales of the product.
Design patents can be helpful in some cases, but do not provide the strong protection of a utility patent. If a design patent is issued, all a competitor needs to do is alter the design and he is free from any patent restrictions. Plant patents are a category to themselves and only cover the development of a new variety of plant not found in nature.
It is important to obtain a patent if you can but it is not necessary. Sometimes inventors find that someone else has already patented their idea. This means that you cannot get the same patent but you are not necessarily out of the game.
You can do several things with your idea at this point.
1) First, you can re-design it
so that it does not infringe on an existing patent. I have improved several products as a result
of having to develop better designs to make my product patentable. It is now a new product and fits the patent definition categories.
2) Second, the patent may have already expired. If this is the case then you cannot obtain a patent but you cannot be stopped from developing and selling your idea.
3) Third, most patents sit idle once they are granted. You may wish to try to license or purchase the patent from the inventor so that you gain control through a contractual agreement.
The point is that you should not get hung up on the patent definition. Yes, it is usually desirable to obtain a patent but it is not the end of your idea if you cannot obtain one for some reason. In fact, I consciously choose not to apply for a patent for many of my products because the patent process is lengthy and expensive and there may be no good utility patent claims worth obtaining.
For example, the
concept of using food grade silicone to make baking pans is well known. I make silicone pans in many unique
shapes. I cannot get a utility patent
although I may be able to get a design patent.
However, I have a loyal customer base, good name recognition in the
market and a good distribution network for my products. I have decided that a design patent will not
offer any real value to me on this type of product so I save my money.
In my opinion, the only time you want to absolutely make
sure that you apply for a patent is when you have a truly novel idea where you
can get a broad patent for a new concept.
A patent granted for vary narrow claims does not hold much value as it
is too easy to design around. There is
nothing wrong with applying for a patent as it feels nice to have your idea
validated and it provides nice bragging rights if granted, but from a pure
business point of view, a broad utility patent is best.
Once you have decided that your product meets the patent definition and you want to apply for a patent, you can do it yourself or hire a professional. A lot of people want to save as much money as they can and they opt to file their own patent. There are a lot of books that guide you through the process but I strongly discourage you from going it alone.
Patents are highly technical legal documents. If you do not know the process, the legal precedent challenges that arise, and how to make proper claims, you are almost assuredly wasting both your time and your money. Even if a patent is granted, it may provide little actual coverage and open you to years of potential disputes and related litigation.
Here are the steps I take when deciding whether to apply for a patent:
1) Make sure that your design is in a final form that you are happy with; and recognize that you have to alter it based on what patents may exist.
2) Conduct a thorough patent search. I showed you how to conduct your own preliminary search in the section entitled "New Invention Ideas". That was for basic idea evaluation. You should not rely on your own patent search unless you become very familiar with how the patent process works, the language and category classifications, etc. You may not know what word to search for and miss an entire group of patents.
Therefore, I encourage you to hire a professional to conduct your patent search. Then take their results and try to recreate them yourself. With practice, you can become a proficient patent searcher. I explain the full patent search process in my Invent And Profit System. TM
If you need a professional to conduct a patent search for you, I can help. Just fill out the form at the bottom of this page.
3) Based on the patent search, decide if you need to modify your design in order to apply for the strongest, broadest utility patent available.
4) Once you are happy with your design, hire a professional to draft your patent application. This is not a place to save money. The costs of a poorly drafted patent application can be devastating.
If you need a competent patent attorney to work with you to patent your product, I can refer you to one in my network. Just fill out the form at the bottom of this page.
5) Be prepared to wait two to three years on your patent with a lot of waiting for a response from the patent office. (Yes, it really, truly does take that long.)
If you follow my advice, you will be able to sleep well, knowing that you have done the best you can do to protect your idea and gain the strongest patent possible. A strong patent is valuable and will also reduce the possibility of years of litigation down the road.
Now, while you wait for your patent to be issued, you should be identifying a manufacturer, deciding on pricing, planning your distribution and raising capital while your product is in the "patent pending" process. The clock is ticking and you need to get these steps completed as soon as possible.
It sounds overwhelming, I know. But don't worry, I will walk you through each step. I developed my System to help you focus on the right issue at the right time, avoid costly mistakes, and most importantly to make sure that you do not waste a dime while working your way towards market.
Now that you understand the patent definition, learn more about how to patent a product.