If you have an invention you’d like to own and market commercially, you’ll need to protect it legally with a patent. Without this designation, others will be free to use your invention and profit from it. Acquiring a patent is no small task. The process, which can be costly and confusing, is also quite lengthy, and in some cases take years to resolve. Still, if you have an invention you know you can market, a patent is necessary to do so. Accessing resources to better understand what’s required of you, or consulting with a patent attorney to navigate any complications, can speed up this process.
What is a patent?
A patent is a license issued by the U.S. government that protects an invention from being used or replicated by others for a period of time, usually 20 years. Patents cover a broad range of inventions, from underlying technologies to designs, to a formula or process. They can be bought, sold, licensed, or traded. To acquire a patent for your own original idea, you must apply for one.
There are limits to what can be patented. Patents must be novel, and you need to demonstrate that your invention is “non-obvious,” meaning sufficiently outside the realm of common knowledge for you to be able to effectively own it. Patents also cannot be taken out on “mere ideas.” You’ll need to make or apply your concept to something concrete in order to claim its patent. Patents can be taken out on inventions as useful as a breakthrough medical technology, or as funny and banal as a banana suitcase.
The United States Patent and Trademark Offices (USPTO) states, “A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine.”
Along with the benefits of legal protection, patents can give you an edge during negotiations if you’re licensing your invention, and might make investors more willing to work with you.
Who may obtain a patent?
Anyone who has developed an original, sufficiently complex idea into an invention that meets patent requirements can apply for a patent.
The USPTO explains, “any person who ‘invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,’ subject to the conditions and requirements of the law.”
The USPTO has also outlined their rules on submitting patent applications for deceased inventors, incapacitated inventors, and joint inventors. In the first two instances, a legal representative may make the application. In the case of a joint inventorship, two or more people can apply for the patent together. But there are rules on who can be considered an inventor in the case of a joint patent, as there are with all patents.
“A person who makes only a financial contribution is not a joint inventor and cannot be joined in the application as an inventor,” the USPTO says. “It is possible to correct an innocent mistake in erroneously omitting an inventor or in erroneously naming a person as an inventor.”
Employees and officers of the USPTO are not allowed to apply for patents themselves. They are further prohibited from acquiring patents, unless in the case of inheritance.
What types of patents are there?
- Utility Patent
A utility patent is granted to protect the invention of, discovery of, or improvement upon “any new and useful process, machine, article of manufacture, or composition of matter.” Utility patents protect the functionality and mechanism behind your invention.
- Design Patent
A design patent protects the ornamental and visual characteristics of a product. As with any patent, design patents must be non-obvious and novel: you cannot simply use an existing design in a new color. Design patents are both less expensive and less common than utility patents and often take less time to approve.
As the USPTO explains, “In general terms, a 'utility patent' protects the way an article is used and works (35 U.S.C. 101), while a 'design patent' protects the way an article looks (35 U.S.C. 171).”
- Plant Patent
A plant patent protects new engineered species of plants, again provided the inventor can prove certain specified characteristics. Officially, the patent “may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”
Starting the process
If you believe you have an invention worthy of being patented, you’ll need to follow the following steps to file an application:
- Keep excellent records. You’ll need to record every step of your invention-making process to prove that your idea is your own.
- Determine if your invention qualifies for patent protection.
- Assess the commercial viability of your invention.
- Conduct a thorough patent search online at the U.S. Patent and Trademark Office website.
- Prepare and file an application with the USPTO.
Should you hire a patent lawyer?
You don’t need to be an entrepreneur or have experience in business to patent an idea. But if you’re coming into the patent game with little experience, speaking with a knowledgeable patent attorney will be helpful.
“It’s pretty rare that you see someone try and wade into drafting their own patent application,” says S. Benjamin Pleune, a patent litigation attorney with Alston & Bird. “Ultimately, that patent is only as valuable as how well it was written. If you invented the light bulb then it might not be too difficult to spell that out in a patent application in a way that would still potentially cover the importance of your invention. But what we’re seeing more often today are these more incremental innovations, and so it really does help to have someone that knows what they’re doing.”
An attorney will help you navigate a confusing process, advocate for your invention’s importance, and may also give you a better understanding of the role of a patent for your specific invention and goals. Nearly 630,000 people applied for patents in 2015 and over 325,000 were granted that same year. Should yours be among the selected, consider your intentions. Do you plan to produce and sell the technology or product you have patented? Do you plan to license the patent and collect royalties?
Even if you have experience in the application process and a clear plan of use for your patent, it is expedient to hire a lawyer specifically trained in patent law to assist you in the process.