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 What Are Intellectual Property Laws?

Intellectual property law is the system of laws that provide certain privileges and protections for owners and inventors. Intellectual property laws were created with the intent to encourage and protect the new ideas, technologies, and artistic creations for the continued economic growth of the United States.

The following is a list of different types of intellectual property that are covered by intellectual property laws:

What Is a Patent?

A patent is a type of intellectual property that gives the owner or holder of the patent the legal right to exclude others from making, using, or offering for sale the patented idea or invention without first obtaining the express permission from the patent owner.

This means that once a patent is registered with the United States Patent and Trademark Office (“USPTO”), the owner of that patent has the exclusive rights to utilize their patent. This includes the right of the owner to sue others to enforce and protect their patented idea or invention.

The USPTO will issue a patent after the inventor first files for a provisional patent application that documents the concepts of their idea or invention. This patent application will then be disclosed and made public on the USPTO’s database. After an inventor has completed and filed their provisional patent application, their invention will then be considered to be patent-pending.

What Does Patent Pending Mean?

As noted above, the status “patent pending” is used to describe an individual that has filed for a patent but has not yet completed the entire patent process. It is important to note that patent pending status does not guarantee that an owner will obtain a patent.

However, filing a patent application and obtaining a provisional patent does offer an owner several advantages.

What Advantages Are There to Obtaining a Provisional Patent Application?

The main advantage of obtaining a provisional patent application is to protect an inventor’s idea or invention from being copied or used by another person or company while they market their idea or invention. In short, the primary reason to get a provisional patent application is to protect the rights to an invention or idea.

Having a provisional patent application on file with the USPTO will provide the following legal rights to the filer:

  • A “patent pending” status for 12 months;
  • Protections that allow the filer the ability to show their invention to potential manufacturers or investors without worrying that their idea or invention will be copied.
    • If a potential investor or manufacturer later steals their idea, the filer can complete the patent process and sue the manufacturer or investor for patent infringement;
  • Protections from infringement by any other party who might learn of the filer’s invention.
    • It is important to note that a provisional patent application is different from a regular patent application in that it does not require the filer to build, test, and prove their invention; and
  • Provides the filer a filing date after they file for their provisional patent application that will be able to be used in obtaining a full patent.
    • Having an early filing date gives a filer an advantage over others who may try to patent the same invention at a later point in time. An earlier filing date can be used to resolve disputes and determine who has priority when determining patent protections.

What Ideas or Inventions Can Be Patented?

In order to receive patent protections from the USPTO, the invention or idea submitted to the USPTO must be new, unique, and generally unobvious. As such, one of the first things an individual seeking to receive a provisional patent should do is search the USPTO database to ensure that their idea or invention meets the new and uniqueness requirements.

After a prospective patent owner determines that their idea or invention is new, unique, and generally unobvious, they can apply then apply to receive one of four different patents:

  • Utility Patent: Utility patents are the most common type of patent. In order to receive a utility patent, the invention must be a process or method with a concrete result, a machine, a chemical or biological composition of matter, or an improvement on an existing invention;
  • Design Patent: A design patent is another common patent that covers how a product appears. Generally, the design must be new, non-obvious, and nonfunctional;
  • Plant Patent: Plant patents cover new species of plants. In order to patent the new plant species, the plant must be both novel and non-obvious.
    • Plant patents prevent others from breeding that specified plant, without express permission from the patent holder. Naturally occurring substances and laws of nature cannot be patented, but new species can; and
  • Software Patent: Software patents are patents that cover how a certain computer process works to achieve a specified result.

What Legal Protections Do Patent Owners Have?

Once a patent has been granted to a patent owner by the USPTO, no other party will be able to legally argue that the idea or invention on file with the USPTO is their own. This means that the patent holder will own all the legal rights to the patented idea or invention. Further, a patent holder can bring an enforcement action in court to prevent a party from continuing any action that involves their invention or idea.

As mentioned above, patent owners will also have these protections during the patent application process while their patent application is pending with the USPTO. However, it is important to note that before the patent application has been filed with the USPTO, an inventor will not have any legal rights or protections in relation to their invention. This is why it is important that an inventor file a patent or provisional patent application, so that no one can steal their idea or invention.

How Do You File for a Provisional Patent?

Filing a provisional patent application is less complicated and less expensive than filing a regular patent application. In order to file for a provisional patent application, a filer must do the following:

  • Pay the required filing fee set forth in 37 CFR 1.16(d);
  • A description of the invention, along with any instructions on how to make and use the invention;
  • Any drawings that are necessary to understand the invention; and
  • A cover sheet that includes the following:
    • The application as a provisional application for patent;
    • The name(s) of all inventors;
    • The inventor residence(s);
    • The title of the invention;
    • The name and registration number of attorney or agent and docket number (if applicable);
    • The correspondence address; and
    • Any U.S. Government agency that has a property interest in the application.

When Does a Provisional Patent Turn Into a Full Patent?

In order to go from patent pending status to full patent holder status, an inventor should file for a regular patent within 12 months of filing a provisional patent. An inventor can still file for a regular patent after those 12 months are up, but they will lose the ability to claim the earlier filing date of the provisional patent application.

If the inventor wants to add on to the information in the provisional patent application when you file for your regular patent, they are free to do so. However, any new information that is added will not have the benefit of the earlier filing date that was obtained with the provisional patent application.

Do I Need A Lawyer For Help With Obtaining a Patent?

If you are considering filing for a patent, or if you have any questions, concerns, or disputes associated with patent enforcement, you should hire an experienced patent attorney. An experienced attorney that specializes in patents will be able to help guide you through the patent application process.

Additionally, an attorney will also be able to help you understand your legal rights and options according to both federal law and the laws of your specific state if someone is infringing upon your patent rights. Finally, an attorney will also be able to represent you in court, should legal action become necessary.

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