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 What is a Patent?

As an inventor, an individual will want to protect their invention from any unauthorized use or distribution. Pursuant to federal patent law, patents are given to inventors to exclude other parties from, “making, using, offering for sale or selling the invention” in the United States.

A patent will typically exist for 20 years and may be used for any invention in any field of technology. Member nations of the World Trade Organization (WTO) are expected to recognize and enforce legal patents because parents are part of international agreements with the organization.

What Types of Inventions can be Patented?

In general, in order for an individual to receive a patent from the United States Patent and Trademark Office (USPTO), an invention is required to be:

  • New;
  • Unique; and
  • Generally unobvious.

There are different categories of patents that are available, depending upon the thing an individual wants to patent, including:

  • Utility Patents: In order to qualify for a utility patent, an invention must be moderately useful. In general, an invention is required to be:
    • a method or a process with a concrete result;
    • a machine;
    • a chemical or biological composition of matter; or
    • an invention improvement;
  • Design Patents: In general, the design to be patented is required to be:
    • novel;
    • non-obvious; and
    • nonfunctional;
  • Plant Patents: Plants that are created may be patented. The plant has to be novel and non-obvious.

There are numerous types of items and ideas which cannot be patented, including:

  • Naturally occurring substances;
  • Laws of nature;
  • Ideas;
  • Calculation methods; and
  • Other things.

How can I Get a Patent for My Invention?

The United States Patent and Trademark Office handles applications for patents and makes determinations related to patents. Inventors are required to submit an application to the USPTO which includes specific drawings and a plan of their proposed invention.

The application also requires that the inventor include a fee. The plan for the invention is required to follow a very rigid and specific form.

Once the individual’s application is reviewed, the USPTO will typically question an applicant regarding any questions the office has. It is important to note that, as of September 2011, the individual who first filed a patent will receive exclusive rights.

Prior to September 2011, patent protections were granted to the individual who first invented the product or technology.

Can I Transfer My Patent to a Family Member or Business Partner?

Yes, a patent may be transferred to a family member or to a business partner. The Constitution provides Congress with the power to grant exclusive rights to an inventor.

The federal code permits individuals to treat their patent similar to other property, which may include:

  • Selling;
  • Licensing;
  • Mortgaging;
  • Transferring; and
  • Abandoning.

How Long Does a Patent Last?

Patents that were filed after June 8, 1995, will last for a period of 20 years from the date that patent application was filed. If the patent was filed before June 8, 1995, it will last for either 17 years from the date of the application being granted or 20 years from the filing date of the application, whichever time period is longer.

The duration of a patent also depends upon the type of patent that is being filed. The durations of patents are as follows, according to category:

  • Utility patent: 20 years from the date of filing if the patent was filed prior to June 8, 1995 or 17 years from the date the patent was issued, whichever is longer;
  • Utility patent: 20 years from the date of filing if the patent was filed after June 8, 1995;
  • Design patent: 14 years from the date of issuance; and
  • Plant patents: 17 years from the date the patent was issued.

Do Patents Ever Expire Early?

In some cases, a patent may expire early. This may occur if the patent is determined to be invalid or if the inventor fails to pay the required maintenance fees.

Once the patent expires, it will go into the public domain. When this occurs, any individual may use, sell, or import the patent.

Once a patent expires, the owner of that patent no longer has rights over it. However, the owner may bring an infringement action or an enforcement action if their patent was infringed upon during the time when the patent was valid.

What Could Make My Patent Invalid?

A patent may be deemed invalid for many reasons. Usually, patents will be deemed invalid during an infringement case when the accused infringer presents the defense that the patent is invalid.

Other reasons patents may be found to be invalid include:

  • The invention was not actually patentable: If evidence is presented that shows the invention lacked the requisite utility, novelty, or non-obviousness that was required for the patent, the USPTO can declare a patent invalid;
  • An individual obtained the patent fraudulently. Even if the invention was patentable, if an individual is able to prove that the patent was received through deception of the USPTO, the patent may be declared invalid; and
  • The patent was used to commit an illegal act. If an individual uses a patent to engage in illegal conduct, the USPTO may declare the patent invalid.

What are Maintenance Fees and When Do I Have to Pay Them?

Inventors are required to pay maintenance fees to the USPTO to keep their patents in force. These maintenance fees are due at specific intervals after a patent is granted, including:

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

If an inventor misses one of these deadlines, they have a 6 month grace period to pay the maintenance fees. To keep the patent in force, they will also be required to pay a penalty surcharge.

If the inventor fails to pay these maintenance fees, their patent will expire.

Can I Extend the Duration of My Patent?

In certain situations, an individual may extend the duration of their patent. Generally, if the USPTO or other government organization has deprived the individual of enjoyment of the rights granted by the patent, an individual may get an extension.

An extension will not exceed 5 years. Common situations which result in the extension of a patent include:

  • The application is initially denied and the individual wins on appeal;
  • The USPTO takes a long time trying to decide if an invention infringes on another patent and then determines it does not infringe;
  • The individual created an invention that requires FDA approval before it can be put to commercial use, which may include:
    • a drug;
    • medical device;
    • food additive; or
    • color additive;
      • The USPTO enacted the Patent Term Restoration Program to handle these issues. The PTR Program will restore up to 5 years for the time lost waiting for approval from the FDA.

What is Patent Infringement?

Patent infringement occurs when a party uses another’s invention or an invention with similar elements. To demonstrate patent infringement has occurred, an individual is required to compare the elements and claims of the original patent with the elements of the device or invention that is suspect.

If these match, there is an infringement. Inventors can enforce their patents in a federal court.

Should I Consult with a Patent Attorney for My Patent Issue?

If you have any issues, questions, or concerns related to a patent or a patent application, it may be helpful to consult with a US patent attorney. Your attorney will know what language to use in the patent application as well as how to value the innovative facets of the invention.

The deadlines and regulations for patent applications are also quite detailed and strict. Your patent attorney will help you meet all of the requirements and deadlines for a patent application.

If you already have a patent, your attorney can ensure that patent infringement is not occurring. If patent infringement is occurring, your attorney can file a legal action in court and represent you during any appearances.


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