The patent: pro­tect­ing valuable ideas

What do a computer mouse, a seat belt, and a Playmobil figure have in common? The creators applied for a patent for all these in­ven­tions. This protected their product from being imitated and enabled them to reap the fruits of their labor.

Patents influence the in­no­va­tion rate and are therefore an important factor for the economic growth of a nation. In the US, the United States Patent and Trademark Office (USPTO) is re­spon­si­ble for granting patents for pro­tect­ing in­ven­tions and for reg­is­ter­ing trade­marks.

The Con­sti­tu­tion of the United States, which was first adopted in 1787, even has a clause in it referring to patents: “The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their re­spec­tive Writings and Dis­cov­er­ies.” Since then, many patent acts have followed:

The Patent Act of 1790 was the first federal patent statute of the United States. Although short, the statute stated that those patenting their in­ven­tions had the exclusive right to use them for 14 years. However, no extension was possible, which many inventors weren’t happy about since it often took several years for their in­ven­tions to be com­mer­cial­ized. It also wasn’t possible for for­eign­ers to patent anything in the US.

The Patent Act of 1793 replaced the former Patent Act and the whole process was made much simpler. Between the Patent Act of 1790 and the Patent Act of 1973, only 57 patents were granted, but between the latter and the following one in 1836, 10,000 were granted. The wave of patents put the patent office under so much pressure that many patents were getting granted that were neither original nor useful. This led to lawsuits being filed over patent validity and in­fringe­ment.

Next came the Patent Act of 1836 in the hope of it fixing some of the previous act’s problems. An official patent office was created, which greatly improved the quality of the patents that were granted. The option of extending the 14 year pro­tec­tion by 7 years also came into play. For the first time, for­eign­ers were also able to apply for US patents.

The Patent Act of 1952 stated that in­ven­tions had to be “non-obvious”, which had the aim of pre­vent­ing people from taking ownership or knowledge in a par­tic­u­lar field.

In 2011, the Leahy-Smith American Invents Act (AIA) switched the U.S. patent system from “first to invent” to “first inventor to file”. This had been debated for decades and the U.S. had been the only country to still be using the “first to invent” system.

The aim of the patent system is to encourage in­ven­tions that are unique and useful. There are three different kinds of patents:

• Utility patents: granted to new machines, chemicals, and processes (most common)
• Design patents: granted to protect the unique ap­pear­ance or design of man­u­fac­tured objects
• Plant patents: granted for the invention and asexual re­pro­duc­tion of new and distinct plant varieties including hybrid

The United States has a long history when it comes to in­tel­lec­tu­al property and has the highest numbers of patents in force. The U.S. is also con­sid­ered the country with the best en­vi­ron­ment for in­tel­lec­tu­al property. When a patent expires, this enables unpursued patents to re-enter into the common market. Such a case happened in 2014 when the patent for Abilify (a drug used to treat schiz­o­phre­nia and bipolar disorder) expired. The companies that man­u­fac­tured the drug no longer possessed the pro­duc­tion rights and this led to a revenue loss of $3.8 billion dollars in the same year.

Before you apply for a patent, you need to research your invention’s patentabil­i­ty to see whether it meets the re­quire­ments set by the U.S. Patent and Trademark Office (USPTO). These re­quire­ments are:

• The invention must cover subject matter that Congress has defined as patentable. According to USPTO, this must be a process, machine, man­u­fac­ture, or com­po­si­tion of matter that is “new and useful”.
• The invention must be useful if it is a utility patent.
• The invention must be “novel” or new.
• The invention has to be “non-obvious”, meaning it can’t simply be an update to an invention that has already been patented. Most of the patent disputes that happen are because of this re­quire­ment.
• The invention must still be a “secret”. If it has already been disclosed to the public be­fore­hand, then it is declared public knowledge and you may have trouble trying to patent it.

You can patent prac­ti­cal­ly anything you want, apart from the laws of nature, physical phenomena, and abstract ideas. Physical phenomena are products of nature, so if your invention occurs in nature, you cannot patent it.

Just because you made a discovery, it doesn’t mean you can patent it. The fact could have been in existence for hundreds of years already, which means that you didn’t create it, just simply noticed it.

When trying to patent something that is still in the the­o­ret­i­cal stage, you have to be as precise as possible, otherwise USPTO won’t grant you the patent even if it’s a great invention.

In 2000, 291,653 ap­pli­ca­tions for utility patents were filed at the USPTO and out of this amount, around 160,000 were issued. The number of ap­pli­ca­tions has continued to rise each year, with 602,354 ap­pli­cants filed in 2017. Out of these, around 310,000 were accepted.

In the U.S., utility patents and plant patents filed on or after June 8^th 1995 are valid for 20 years from the earliest filing date on the ap­pli­ca­tion. For patents filed before this date, the validity is either 20 years from the earliest filing date (as above), or 17 years from the issue date, whichever is longer.

Design patents have a shorter term than utility patents and plant patents. For those filed on or after May 13^th 2015, the term is 15 years from the issue date. For any filed before this date, the term is 14 years from the issue date.

Patents are only valid for the amount of time mentioned above if the main­te­nance fees are paid on time to USPTO. These fees are due in the 3^rd, 7^th, and 11^th year of a patent’s term and there’s a six month grace period that you have to pay in.

You could hire a lawyer to help you apply for a patent, but it’s rel­a­tive­ly straight­for­ward to do it yourself and saves you lots of money in the process, since a lawyer can charge anything between $1,000 and $10,000 for the whole process. Federal law actually requires patent examiners at USPTO to help inventors that haven’t enlisted a lawyer’s help. Here are the steps you need to take to correctly file for a patent:

Check on the USPTO website as to whether your invention has already been patented or not. You should also check whether it’s something that can be patented in the first place. It must be different in some way from all previous in­ven­tions and cannot be known about by anyone be­fore­hand.

As mentioned at the start of the article, there are three kinds of patent: utility, design, and plant. Find out which category your invention falls into before you begin the filing process.

This step gives you extra added pro­tec­tion in the event of someone claiming they came up with the idea first. This is es­pe­cial­ly important now that the U.S. uses the “first to file” system rather than the “first to invent” system. Filing a PPA costs $65 for micro-entities, $130 for small entities, and $260 for large companies.

It’s possible to file by mail or fax, but you can also use the Elec­tron­ic Filing System (EFS), which is safe, simple, and secure. This system offers the same pro­tec­tion as paper-based filings and can also print out anything you need if you would rather be in pos­ses­sion of a physical copy.

In the spec­i­fi­ca­tion, you need to include an abstract, the back­ground story, a summary, a detailed de­scrip­tion, as well as the con­clu­sion. Define the legal scope of your patent and make sure that every­thing is correct since it takes one to three years for a patent ap­pli­ca­tion to be processed and you don’t want to start over due to a simple spelling mistake.

Once you have filed, you will have a patent examiner assigned to your case. Anytime they write to you, make sure to respond as quickly as possible. You could even arrange a video con­fer­ence so you can answers any questions the examiner might have.

For more detailed in­for­ma­tion, check out the article on how to register a patent.

USPTO fees can range from $70 up to $2,120. Their fees fall into three cat­e­gories:

• Filing fees: $50-$700
• Search fees: $40-$660
• Ex­am­i­na­tion fees: $150-$760

On top of this, there are also main­te­nance fees, which are required for renewing utility patents. These are due three times over the life of a patent. They range from $400 to $7,400 and depend on the entity and age of the patent. Once your patent has been granted, you can look up the main­te­nance fees on USPTO’s website by searching for the patent and ap­pli­ca­tion number.

Here’s an estimate of the cost for each of the three patent types:

• Utility patent: $5,000-$15,000
• Design patent: $2,500-$3,500
• Plant patent: $4,500-$8,000

Click here for important legal dis­claimers.