A patent is a title document that grants its holder the legal right to prohibit others from making, selling, using, or offering for sale their invention. A patent holder will be able to exercise these rights of exclusion for a period of 20 years, with the possibility of an extension under certain circumstances.
In order to obtain a patent, an inventor must submit a patent application to the United States Patent and Trademark Office (“USPTO”), which is a federal agency that operates under the Department of Commerce. When applying, an inventor will need to choose between one of three types of patents. According to the USPTO, these include:
- A utility patent: A utility patent may be issued to those who discover or invent any new and useful process, article of manufacture, machine, or composition of matter, or any useful and new improvement on any of the items just mentioned.
- A plant patent: Plant patents are an extremely specific kind of patent. They are issued to persons who discover or invent and asexually reproduces a distinct and new variety of plant(s).
- A design patent: A design patent may be issued to those who invent an original, new, and ornamental design for an article of manufacture. Unlike the first two patents listed here, design patents will usually expire in 15 years, as opposed to the standard 20-year limit.
The main reason that many inventors obtain a patent for their inventions is because patents provide protection against theft and enable patent holders to sue any infringing parties. While patents are the most common form of protection sought for inventions, there are other methods to use for invention protection. These will be discussed in further detail below.
In addition, both the U.S. Constitution and the laws of intellectual property protect the rights of inventors by giving them an exclusive right to reproduce, use, and exclude others from presenting it as their own invention without the inventor’s permission. Once a patent has officially expired, however, persons other than the patent holder will then be permitted to make, offer for sale, sell, use, and/or import the invention without the inventor’s consent.
To learn more about how patents may potentially provide protections for your invention or to get assistance with filing a patent application, you should contact an intellectual property attorney in your area for further legal guidance.
Does the Patent and Trademark Office Offer Any Protection, Before a Patent is Obtained?
Since inventors must describe their invention or discovery in exchange to obtain a patent, the USPTO offers two primary methods of protection before a patent is officially issued. While awaiting approval, an inventor may file a provisional patent application (“PPA”) with the USPTO.
Although a PPA will not guarantee that an inventor will receive a patent, it will allow the inventor to claim that they had pending status prior to anyone else. Hence, the familiar phrase “patent pending,” which refers to this status. A PPA offers inventors several advantages, including proof that they filed for a patent before any other parties.
The other protective measure that the USPTO offers to inventors is allowing them to file a description of their invention through their disclosure document program. By entering into the disclosure program and providing a description of an invention, the inventor will have concrete proof that they were the first to conceive the invention or design.
Again, it should be noted that neither of the above options guarantee full protection over an invention as a patent would. Nevertheless, they do offer an adequate level of protection that can safeguard the inventor against future applicants who file a patent application for the same invention or discovery after them.
How Do I Protect My Invention Without a Patent?
Aside from filing a PPA or a description of an invention, an inventor may be able to protect their invention through other methods. For example, an inventor can draft and have those who are privy to information about the invention sign a legal document called a nondisclosure agreement (“NDA”).
An NDA, also known as a confidentiality agreement, is a contract that binds the signing parties to secrecy. If any of those parties divulge information about the invention, then the inventor will have a right to sue them for any damages or losses they suffer due to the breach of confidentiality.
Depending on the invention, another way that an inventor can protect their invention or discovery without a patent is by applying trade secret laws. A trade secret is generally defined as valuable information that gives one company a competitive edge over another. This information can include formulas, patterns, devices, programs, methods, techniques, procedures, and/or compilations.
In order to qualify as a trade secret the information must not be known to the public, must be able to provide an economic benefit to its holder, and its holder must make a reasonable effort to keep the information a secret. Although there are no legal guidelines for how to create or file a trade secret, most businesses used an NDA or a non-compete agreement to prevent former employees from disclosing the secret information to a business’s competitors.
What Kinds of Inventions Can Be Protected?
It is extremely difficult to get a patent on an idea since ideas generally cannot be patented. In some cases, however, an “idea” may be eligible for a patent if it can be tailored to fit any of the primary things that a utility patent protects (e.g., a process, an article of manufacture, etc.).
If an idea does not fit any of the requirements to obtain a patent, then it likely will not qualify as an invention. It will simply be considered an idea and the inventor’s patent application will probably be denied.
An idea may be an invention if it is something that can be used by others. Some common invention “ideas” to patent include:
- A machine that has moving pieces;
- An article of manufacture like a tool;
- A process, such as a new method of making perfume; and/or
- A discovery of an asexual plant.
What Other Steps are Involved in Protecting an Invention?
Aside from exercising enforcement rights and using supplemental documents like an NDA to protect an invention, an inventor should also make sure that their invention or discovery can be covered by a patent. If not, then they will either need to register for another form of intellectual property, such as a trademark or copyright, or will have to seek other ways to protect or monetize their invention through commercial contracts.
Another step that an inventor can take to protect their invention is to hire a patent attorney to assist them in completing their patent application. As previously mentioned, patent applications require a detailed description. Thus, an inventor must be able to explain what their invention is and how their invention works in a clear manner.
Additionally, an inventor must also make sure that their description is narrow enough and does not extend to other types of already patented inventions.
Finally, an inventor should double check that they file the right type of patent application for their invention. Some inventions may even fall under two of the three main categories of patents. As such, an inventor must choose the right one. There are also some legal standards that their invention must satisfy before it will be eligible for patent approval.
What Does a Patent Attorney Do?
In general, a patent attorney assists an inventor or business in obtaining a patent. This may include drafting a description of an invention or discovery, filing a patent application and/or PPA with the USPTO, and explaining to the USPTO why a patent should be granted. A patent attorney must also know the intricate details of intellectual property laws and whether or not a client would be able to apply for patent protection.
In addition, a patent attorney can perform a search to see if any other inventors have already applied for a patent for the same invention. A patent attorney can also help their clients to enforce a patent once it is obtained by suing others who infringe upon a patent holder’s rights or violate other laws related to patents and their invention.
While it is certainly possible for an inventor to apply for a patent without hiring a patent attorney to do so, the process and legal issues that may arise in connection with a patent are extremely difficult to navigate without a legal professional.
For instance, patent attorneys must have in-depth knowledge of science, engineering, technology, and/or math along with a law degree to perform patent work. Many inventors do not have this type of special training, so they might not understand how to describe their invention in the manner that is required to get a patent approved.
Lastly, a patent attorney can offer valuable legal advice on various aspects of the patent process, such as:
- Making sure that a patent will be issued in time to open a business or release an invention;
- Knowing whether or not an inventor should apply for a PPA while they wait to receive a patent; and
- Ensuring that a patent application is in perfect compliance with the USPTO guidelines, so that it does not get denied and an inventor does not suffer financial loss.
Should I Hire an Attorney for Help Protecting an Invention?
As discussed above, there are many other ways for inventors to protect their inventions aside from obtaining a patent. Thus, if you have an invention that you would like to secure a protection for, then it may be in your best interest to contact a local intellectual property attorney for further legal advice.
An experienced intellectual property attorney will be able to discuss the options available for protecting your particular invention and can provide recommendations on which of those options would be the right fit for you. Your attorney will also be able to explain the risks associated with sharing information about your invention and can advise you on precautionary measures you can take to protect that information.
In addition, if there is a dispute over your invention or its protections, your attorney will also be able to provide representation at any legal proceedings related to the matter.