You've stayed up well past the twilight hours brainstorming a new idea. You may have conceptualized something novel and gave birth to a new invention, or you may have improved upon the existing in an innovative fashion. Whatever the case may be, let us help you find a way to protect your brainchild during its critical stages of infancy.
What is protectable as a patent?
A well drafted and executed patent application, if allowed and issued as a U.S. patent by the United States Patent and Trademark Office (USPTO), may provide up to a 20-year exclusive monopoly for the claimed new and nonobvious invention or innovation. In other words, a patent generally provides the broadest and highest form of intellectual property protection. The downside however, is that it can also be a difficult and expensive process, with no certain guarantees.
Broadly speaking, there are three types of patents which may protect different inventions or different aspects of an invention, including: (1) utility, (2) design, and (3) plant.
- The utility patent is the most common and well known type of patent, and is used to protect the utility or usefulness in a new process (including software and business methods), machine (a device or system), manufacture (a physical thing or article), or composition of matter (a chemical compound or intermediate). A utility patent carries a 20-year term from the date of filing.
- The design patent, on the other hand, protects only the ornamental aspects of an invention or innovation, and prominent examples include the Coca-Cola bottle, the iPhone and its UI, and the Google home page. Design patents, unlike its utility or plant counterpart, carry a shorter 15-year term.
- The plant patent protects new, asexually reproduced plants. Please note that a tuber propagated plant or a plant found in an uncultivated state is not patent eligible for a plant patent. Like the utility patent, a plant patent also carries a 20-year term.
Timing is absolutely critical to patent protection, and the application for an invention, innovation, or feature thereof should be on file with the USPTO prior to publicly disclosing the same or offering it for sale. Patent protection is geographically based, and the U.S. is one of the more lenient jurisdictions in the world, wherein the inventor or applicant is provided a 1-year grace period to nonetheless pursue patent protection, even after the date of disclosure. Be warned however, that the rest of the world tend to follow an "absolute novelty" standard, which means that as soon as the invention is out there, any form of patent protection thereafter is barred.
While different circumstances dictate different actions, our general process (for utility-type filings) normally goes as follows:
- If you are interested in discussing in additional detail, please contact us to schedule a free consultation. In most cases we can help you either rule out something as being overly broad and/or ask for more particulars in order to conduct some further research.
- Rather than blindly forging ahead, consider having us conduct preliminary research for the invention or innovation, in order to obtain a better understanding of the prior art, as well as rule out what may be clearly unpatentable or old. This often glossed over step allows us to discuss the project in detail and to proceed with additional clarity. In other words, it is critically important to determine with particularity what the invention(s) or innovation(s) are at the outset, so as to save the client time and money, and to more effectively prosecute a new application as it undergoes USPTO examination.
(Consider also immediately filing a provisional application in order to establish an early filing date, which may help meet the "first to file" requirement, and may additionally preserve the ability to pursue foreign filings, especially when timing is of the essence, i.e. when impending disclosures, publications, investor pitches, or sales negotiations are fast approaching).
- Consider having us prepare and file one or more formal applications, if warranted, following the preliminary research.
(Otherwise additional research may be requested; or, the client may decide to not proceed after the initial research if a prior art area is particularly crowded and/or already teaches the novel aspects of an invention).
- Review the application(s) for completeness and finalize the same.
- Filing of the application(s) upon final approval.