FAQs About U.S Patents
What is a United States patent?
A patent is an intellectual property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted. A patent protects the ideas behind a product, chemical, process, machine, etc.
There are three types of U.S. patents:
- Utility Patents;
- Design Patents; and
- Plant Patents.
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Utility patents are the directed to how a person can make, build, and operate an invention.
Meanwhile, a Design patent is granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Design patents only protect the look or “aesthetics” of an article. This form of patent protection is very similar to copyright protection because design patents only show how an object looks. Design patents only have drawings to protect the ideas behind the article of manufacture. A Design patent never explains how the article of manufacture is built or used. It protects purely and only the “look” (aesthetics) of a product.
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
When should I file for U.S. patent protection?
You need to file a patent application within one year of (1) a first offer of sale of the invention or (2) within one year of a first publication of the invention. Keep in mind that U.S. Patent laws have recently changed (in the year 2013).
While a first inventor is entitled to this one year grace period for filing her patent application, if another second inventor independently invents the same invention and files a patent application first before the first inventor, then the second inventor filing the patent application first will be awarded the patent rights for filing the patent application first before the first inventor.
Similarly, if that second inventor independently invents the same invention and publishes the invention before the first inventor files a patent application, then this publication of the invention by the second inventor prevents the first inventor from receiving patent protection on a patent application covering the same invention which is filed after this publication.
Also keep in mind that all of the above is only for U.S. patent rights. If you are interested in foreign patent protection, like Europe or Japan, then these countries have “absolute” novelty laws which require filing for patent protection before any publication or sale. There are no grace periods in most countries outside the United States.
And this means, if you publish (which includes sharing with others) your invention or sell your invention first before filing for patent protection, then it is likely that you have already lost your patent rights in many countries outside of the United States, like Europe and Japan.
To avoid “publication” from sharing your invention with others, you can disclose your invention under a non-disclosure agreement (NDA). An NDA is a legal agreement between the inventor and the recipient of the invention or information about the invention in which the recipient agrees to not share the invention or information with any other person or legal entity.
Such an NDA negates (eliminates) “publication” by sharing of information with others under U.S. Patent law and patent laws of most foreign countries. The following are guidelines for pursuing a utility patent. Design patents are a little different as mentioned above and usually only involve illustrations/visuals of a product.