Patenting Online Business Methods

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 What is a Patent?

When an individual is inventing new things or ideas, they will want to protect those from unauthorized use and distribution. Under federal patent laws, patents are provided to an inventor so that other individuals are excluded from “making, using, offering for sale or selling the invention” in the United States.

Because of these concerns, patents are provided to inventors to help them protect their inventions. Patents are typically in effect for 20 years.

Patents may be obtained for any invention in technology or industry. An individual can obtain a patent by applying with the U.S. Patent and Trademark Office (USPTO).

The patent application procedure is often detailed, and numerous different requirements must be met. Patents are a part of an international agreement with the World Trade Organization (WTO).

Because of this, nations that are members of the WTO are expected to recognize and enforce a legal patent.

What Types of Inventions can be Patented?

Generally, for an individual to be given a patent from the United States Patent and Trademark Office, their invention is required to be:

  • New;
  • Unique; and
  • Generally unobvious.

There are also numerous different categories of patents that may be available to an inventor, depending upon what an individual wishes to patent, including:

  • Utility patents: Inventions, in general, are required to be:
    • a process or method with a concrete result;
    • a chemical, a machine, or a biological composition of matter; or
    • an invention improvement. The invention is also required to be moderately useful to qualify for a utility patent;
  • Design patents: Generally, the design must be:
    • novel;
    • non-obvious; and
    • non-functional;
  • Plant patents: Plants that an individual creates can be patented. The plant must be novel and non-obvious.

An inventor needs to be aware that certain things cannot be patented, including:

  • naturally occurring substances;
  • laws of nature;
  • ideas;
  • calculation methods; and
  • other things.

How Long Does a Patent Last?

How long a patent lasts depends on the date the application was filed. If a patent was filed after June 8, 1995, it will last for 20 years from the date the patent application was filed.

If the patent was filed before June 8, 1995, it will last for either 17 years from the date the application was granted or 20 years from the date the application was filed, whatever time is longer. Additionally, the duration of a patent will depend on the type of patent being filed.

Specifically, the validity of patents based on their category includes:

  • Utility patents: 20 years from the date of filing if the patent was filed before June 8, 1995, or 17 years from the date the patent was issued, whichever is longer;
  • Design patents: 14 years from the date of issue for design patents; and
  • Plant patents: 17 years from the date the patent was issued.

Once an inventor obtains a patent, they must pay maintenance fees to the USPTO to keep their patent in force. These maintenance fees are due at specific times following the granting of the patent, including:

  • 3.5 years;
  • 7.5 years; and
  • 11.5 years.

If an inventor misses one of these deadlines, they will have a 6 month grace period to pay the maintenance fee plus a penalty surcharge to keep their patent in force. If an inventor fails to pay these maintenance fees, their patent will expire.

Why Do I Need a Patent?

Individuals file for patents to protect others or entities from stealing their ideas and making money off them after they patent their idea. If an individual has an idea or invention they want to patent, they should research it to ensure they are not infringing on another patent.

What is an Online Business?

An online business is generally a company that operates either in full or in part over the internet. Online businesses generate revenue from online transactions.

Can I Patent a Method I Use for Running My Online Business?

An individual can patent a method they use to run their online business. If an individual has a unique way of conducting business online that provides a competitive advantage, they may patent that method.

Although it may be difficult to patent a business method, the USPTO has become more willing to allow patents for unique online business practices. One example of this is allowing individuals to patent the various methods used by auction sites in terms of how the auctions are set up and conducted.

What are the Advantages of Patenting My Online Business Method?

There are some advantages to patenting a business method. First, if the method provides the online business with a competitive advantage, an individual likely does not want that method falling into the hands of a competitor.

Having a patent would allow an individual’s unique method to be used exclusively by their business and no other party for up to 17 years. Another advantage of having a patent is that, even if an individual does not mind allowing other businesses to use their unique method, it would allow the individual to charge a fee for other businesses to be licensed to use their method.

How Do I Qualify to Get a Business Method Patent for my Online Business?

There are several requirements a business method must meet for them to be able to patent it, including:

  • The method must be novel: This means the business method could not have been used or patented by any other business more than a year before your application for the patent;
  • An individual or individuals must create the method: It cannot be some abstract idea or a product of nature;
  • The method must be useful: It must do something productive for the online business; and
  • The method must not be an obvious idea that any individual in the same business area could have created.

What is Patent Infringement?

If another party uses an individual’s invention or an invention with similar elements, the party may be held liable for patent infringement. The patent’s claims and elements must be compared with the device or invention suspected to be infringing to prove that patent infringement occurred.

If those claims and elements match, infringement has occurred. If infringement occurs, an inventor can enforce their patent in federal court.

Should I Consult a Lawyer when Filing for a Patent for My Online Business?

Patent laws are very complex. Filing for a patent may be an extensive process that most people will need help with.

In most cases, it will be very helpful to have the assistance of a patent attorney in your area when you file for a patent for your online business method. Your attorney can guide you through the process and advise you of the laws you need to be aware of and the appropriate forms that need to be filled out.

If any legal issues arise during your patent application, your attorney can assist you with resolving them. Your attorney can also provide you with updates if there are any changes to the law that might affect your legal options and rights under the law. They can also represent you in court if any legal conflicts, disputes, or unresolved questions regarding your claim should arise.

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