Patents are granted for inventing new and useful processes, machines, articles of manufacture or compositions of matter. The inventor is granted limited monopoly rights for 20 years from filing in return for public disclosure of the invention. The monoply gives the inventor the right to exclude others from making, using, offering to sell, or selling the invention.
Utility patents are the most common and 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. Patentable processes include software programs, business systems, methods of operating a device, new uses of an old devices, and methods of making a product.
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.
A patent application is filed with the United State Patent and Trademark Office (USPTO). This can be done by the inventor (Pro Se), but the USPTO recommends it be done by a licensed patent attorney or agent due to the complexity of the process.
The main areas of the application include:
If inventors want protection that extends outside of the United States, they need to look to foreign filing. Sales, licensing, or manufacturing the technology internationally, requires inventors to secure the foreign rights to gain the protection in applicable countries. Even if the inventor is unsure of whether they will need foreign protection in the future it is advantageous to secure the foreign rights and not use them rather than need the rights, but be unable to obtain them due to missing statutory deadlines. The most common countries in which to file for a patent are the United States, Japan, Germany, United Kingdom, France, Taiwan, Canada, and South Korea.
Once received by the patent office, the patent application is examined. The initial review is a formality review. The application will then be assigned a class/subclass, and assigned to a Technology Center where it is put on the docket. An examiner will then conduct substantive examinations of the application. Through a series of Office Actions and responses, the patent attorney works with the examiner and modifies the application as needed to try and get the application allowed.
Once the application has been allowed, the inventor must pay the issue fee and the publication fee, at which point the USPTO grants teh patent. In order to maintain the patent protection, maintenance fees are due at 3.5, 7.5 and 11.5 years. Failure to pay the fees will result in the patent being abandoned, at which point protection is lost.
Once filed, the application is "Patent Pending". This provides notice to competitors, but does not provide any legal protection.
After the patent has been granted, protection lasts for 20 years from the date of filing. The patent marking and number must be applied to the product in order to maximize the right to collect damages in a patent infringement lawsuit.
Patent protection is a little unusual in that it is a "negative" right. The inventor has the right to exclude others from making, using, offering to sell, or selling the invention, but the inventor does not necessarily have the right to make, use, offer for sale, or sell their invention. For example, if you were to patent an improvement on an existing patent, you would be given the negative right over only the improvement. The original inventor has the negative right to prevent you from using the original part, and you have the negative right to prevent the original inventor from usign the improvement. Licensing and the sale of patents allows one or both parties to use both the original technology, plus the improvement.
There have been a number of recent changes to the patent system.
