FAQS
What is a patent?
A patent is a 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.
The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO. See Patent Application.
Who can apply for a patent?
The inventor, or a person to whom the inventor has assigned or is under an obligation to assign the invention, may apply for a patent. See Who Can File.
What can be patented?
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Utility patents: any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.
See the Utility Patents page.
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Design patents: any new and non-obvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features.
See the Design Patents page.
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Plant patents: asexual reproduction of any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant.
What cannot be patented:
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Laws of nature.
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Natural phenomena.
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Abstract ideas.
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Literary, dramatic, musical, and artistic works. These can be copyright protected.
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Inventions that are not useful or functional such as perpetual motion machines.
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Any work that is morally offensive.
Invention must also be:
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Novel.
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Nonobvious.
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Adequately disclosed, with detailed description and drawings so that a person of ordinary skill in the art to make and use the invention.
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Claimed clearly and distinctly.
What rights does a patent provide?
A patent owner has the right 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.
How long does patent protection last?
A utility patent is granted for 20 years from the filing date of the application. A design patent is granted for 14 years from the issue date.
Is a patent valid in every country?
Patent rights are only enforceable in the country in which a patent has been filed and granted.
How are patent rights enforced?
Patent rights are usually enforced in a court on the initiative of the patent owner. A court of law has the authority to stop patent infringement. However, the patent owner is responsible for monitoring, identifying, and taking legal action against infringers.
What is a provisional patent application?
A provisional patent application establishes an early filing date, but is not examined, and does not mature into an issued patent. The applicant should file a regular non-provisional patent application within one year, and thereby claim the filing date of the provisional.
A provisional application includes a specification with a detailed description, and drawings of the invention. The provisional does not require claims, a declaration, or an information disclosure statement.
See the Provisional Patents page.
How long does it take for a patent to issue?
The time required can vary greatly depending upon the examiner’s workload, and the number and complexity of office actions. An average would be about 2-3 years from the date of application for a utility patent, and 1-1½ years for a design patent.
What does a patent protect?
Patents protect the novel features of an invention. What is novel is judged in comparison to what already exists anywhere in the world (prior art). The examiner may determine that some of the features already exist in prior art and therefore are not patentable. Those features that are found to be novel form the legal basis of the patent.
How many applications result in an issued patent?
About half of all patent applications result in an issued patent.
What is the first step in obtaining a patent?
The first step is to prepare an Invention Disclosure to describe the invention in detail. The Invention Disclosure should define the novel features of the invention are explain how these features are different from currently available products. It should indicate problems with the prior art products, and how the invention overcomes those problems. Include drawings of the invention and call out the parts.
See the Disclosure page for details.
What is a patent search?
It is strongly advisable to conduct a search of prior-art patents before filing a patent application. This is because a patent will be granted only on an invention that is new, useful, and not obvious. The search will help determine whether the invention is novel, and hence whether or not to file the application. See Patent Search and Novelty Search for details.
What are the parts of a patent application?
The patent application comprises several parts: an Abstract, a Specification, one or more Claims, and usually one or more figures of a Drawing.
See the Sample Patent page for details.
What are claims?
The claims must “particularly point out and distinctly claim” those features that are novel with respect to the state of the art. The claims define the legal limits of the patent. See the Sample Patent page for details. See Sample Patent: Page 7, Page 8, Page 9.
Do all patents provide the same level of protection?
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Patents typically have several independent claims of varying scope (breadth). The first and broadest claim has the least limitations, and is the most difficult for an infringer to design around. If allowed, the broadest claim will result in a strong patent.
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The second independent claim is somewhat more narrow in scope. This claim has more limitations than the first claim, and is somewhat easier for an infringer to design around.
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The third independent claim is more narrow in scope than the second independent claim. This claim has the most limitations, and is the easiest for an infringer to design around.
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The reason for claims of varying scope is that, together, they “more particularly point out and distinctly claim” the invention, as required by the PTO. They also give the agent more options during prosecution. In the patent application process, the PTO Examiner will argue for the most narrow claim language, while the inventor will argue for the broadest claims. Typically, the broadest claims will be the most brief, because they have the least limitations. See Sample Patent.
What does Patent Pending mean?
Sometimes inventors may wish to market their inventions without waiting for the patent to issue. The inventor is allowed to place the marking, “patent pending” on a product once a patent application is filed with the PTO. This marking serves as notice that a patent on the invention may be issued. Once a patent issues, the product is marked with the patent number. See Patent Pending.
What is an examiner’s office action?
After the application is filed with the PTO it will be examined by a PTO examiner. The examiner will issue a first office action, which recites in detail the findings of the examination. The examiner often will reject some or all of the claims. The patent agent will argue against the rejections, or modify (amend) the claims to allow the patent. A second office action may be necessary. See First Action and Second Action for details.
For what reasons can the examiner reject an application?
The examiner will search through issued patents (prior art), and look for one or more patents that contain features of each claim of the invention. The examiner will search both U.S. and foreign patents. If the examiner finds a single issued patent having all of the features of any claim, the examiner will reject the claim on the grounds that it lacks novelty. That is, an invention with that claimed feature already exists, and anticipates your invention. The examiner will review each claim in this manner.
If the examiner cannot find a single patent that contains all the features of any particular claim, the examiner will then look for one or more patents that contain the missing features. If the Examiner can find a primary patent along with one or more secondary patents that in combination, have all the features of that claim, the examiner will reject the claim on the grounds that it is obvious. Obvious means that a person skilled in the art could combine the features of the primary and secondary references to achieve the invention. A skilled agent or attorney can present arguments to overcome such rejections. See First Action and Second Action for details.
What is an amendment?
An amendment is a change to a patent application, typically to a claim. The patent agent will rewrite the claim to reverse the examiner's rejection and get the claim allowed. Usually, a limitation will be added to the claim in order to distinguish from the prior art cited by the examiner. After an application is filed, no new material may be added. A new application can be filed with the new material.
What is a Notice of Allowance?
A Notice of Allowance is issued by the PTO if one or more of the claims of the application are allowed. The issue fee must be paid within three months. The patent will then issue. See Patent Approved.
Will my U.S. patent protect my invention in a foreign country?
A U.S. patent only protects the invention within the United States. If patent protection in other countries is needed, then applications should be filed in those countries within one year of the United States filing. Foreign countries do not have a one year grace period after disclosure of the invention. Thus, the invention should be kept secret until an application is filed. See Foreign patents.