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.

Note

Patents issued by USPTO are only effective in the US.

The history of the US patent law

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.

What is a patent?

Definition

A patent is a right granted to an inventor by the federal government, which means that the inventor can prevent anyone else from making, selling, or using the invention for a certain period of time.

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.

What are the basic requirements for a patent?

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.

What cannot be patented?

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.

How many patents have been filed in the United States?

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.

How long is a patent valid for?

In the U.S., utility patents and plant patents filed on or after June 8th 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 13th 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 3rd, 7th, and 11th year of a patent’s term and there’s a six month grace period that you have to pay in.

How do you file for a patent?

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:

Search the USPTO website

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.

Determine the type of patent you need

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.

File a Provisional Patent Application (PPA)

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.

Note

You have to file a regular patent application (RPA) within a year of filing the PPA. If you don’t, you can no longer claim the PPA filing date.

Register for the EFS system

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.

Prepare everything for your formal application

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.

File the formal application

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.

The costs of patenting an invention

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

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