Patent Law: How Do I Secure a Patent?

As a small business owner, entrepreneur, or startup, securing a patent is essential in protecting your intellectual property. Patents are among the hardest intellectual property (IP) protections to receive. Patent applications are detailed and complex. They must meet strict rules. Knowing what you can and cannot patent, which patent application to choose, and how to find a patent lawyer can help protect your invention.

Common Intellectual Property Protections

There are four types of intellectual property: copyrights, trademarks, trade secrets, and patents. The different forms of intellectual property rights protect intangible assets like creative works. IP protection provides creators exclusive rights to their creations. This prevents others from using or reproducing these works without permission.

Copyright

Copyright protection is a type of IP protection that covers original works of authorship, such as:

• Music
• Artistic works
• Literary works
• Software programs

The U.S. Copyright Office is the government agency that registers copyrights and handles copyright infringement claims. Copyright infringement happens when someone uses copyrighted material without the copyright owner's permission.

Trademarks

Trademarks protect:

• Company names
• Logos
• Slogans
• Other elements that identify and distinguish goods or services from others in a similar market

For trademark protection, you must file a trademark application with the U.S. Patent and Trademark Office (USPTO). The trademark registration can last forever as long as it is renewed.

Trade Secrets

Trade secrets are a form of intellectual property protection. They protect confidential and valuable information that provides a competitive advantage to the owner.

Patents

Patents protect new, novel, and nonobvious inventions such as:

• Processes
• Machine article of manufacture
• Composition of matter

Filing a Patent Application

An inventor in the United States may pursue a patent for an invention by filing a patent application with the USPTO.

This application includes:

• A precise and detailed description of the invention
• A description of the conception and development of the invention
• Detailed drawings
• One or more claims about its helpful function

There are three types of patents: design, plant, and utility.

Choosing Your Patent Application

Before receiving patent protection, you must file an application with the U.S. Patent and Trademark Office. There are five basic types of patent applications:

1. Original application: Not based on or tied to any other patent applications before the patent office
2. Continuation application: Based on an existing application with many identical components; when processing has been held up, it changes the prior application
3. Continuation-in-part application: Based on additional subject matter; it is generally used to protect improvements to the original invention
4. Divisional application: When the patent office determines that the patent application covers more than one invention
5. Provisional application: A preliminary application used to secure an earlier filing date for an invention

The Different Parts of a Patent Application

A patent application must contain the following:

• A specification
• A drawing of the invention
• An oath by the applicant stating that the inventor believes they are the first inventor of the item
• A filing fee

These parts include the applications:

• Title
• Cross-references to related applications
• Field or subject area of the invention
• Background on the "art" of the invention
• Summary of the invention
• Description of accompanying drawings

Description of preferred embodiments, claims, and an abstract.

Defining Patent Application Terms

Abstract

The final piece of the specification section is an abstract, which is a single paragraph summarizing the invention. The abstract emphasizes the invention's novel features. It appears on the first page of the patent once issued. Application fees vary based on the application type and the entity's size pursuing the patent.

Background on the Art

Related to the field is the background of the art (or background art) section. In it, the applicant explains to the patent examiner the problem the invention solves or the process the invention improves.

Claims

The last significant section of the specification is the claims. Claims help the courts and the patent office determine whether the invention is patentable and what it protects. In the claims section, the applicant sets forth the invention's structure and what it does in explicit detail. The claims section must be carefully drafted to describe no more and no less than what the invention is and does. If it's too broad, it may be rejected by the patent office; if it's too narrow, it will fail to protect the full rights of the inventor.

Cross-References

Cross-references put the patent office on notice that this application is closely related to another pending application, as in the case of continuation, continuation-in-part, and divisional applications.

Description of the Preferred Embodiments

Because the public will have use of the invention after the patent has expired, the application must make clear how the invention will be made and used. This information comes in the description of the preferred embodiments. Here, the applicant describes the materials and parts used to make the invention and the precise manner of using it.

Drawings

Additionally, the vast majority of patent applications will include drawing(s) of the invention. The application should include a brief description of the drawing(s), including the perspective of the viewer observing the drawing.

Field

The field of the invention concerns the technical field in which the invention will be used. The patent examiner will use this information to determine whether the invention meets the requirements of novelty. Novelty means the invention has not been made before. The field also allows the patent examiner to see that it is not an obvious development.

Summary

In summary, the applicant describes the features and advantages of the invention. It should relate to the problems or inadequacies addressed in the background art section. The summary must also show that the invention has been reduced to practice and utilized for its intended purpose. To be patentable, the invention must work. Its abilities and functions cannot be speculative.

Title

The title of the invention is the patent examiner's or reviewing court's first clue as to what the invention is or does. Thus, it should match the inventor's intentions.

Reviewing a Patent Application

Next, a patent examiner reviews the application for the U.S. Patent and Trademark Office. These examiners have experience with the invention's subject matter. The patent office may not rule on the application for two years or more. While the application is pending, the applicant may seek to amend the application. Or they may seek to disclaim a part of it if that part could prevent the patent from being granted.

Protecting Your IP Rights

You should have a non-disclosure agreement (NDA) in the early stages of developing your invention. Before you share sensitive information about your invention with others, have them sign an NDA. An NDA is a confidentiality agreement that ensures the confidentiality of your invention. It ensures that the recipient will not disclose the information to others.

Get Professional Legal Advice From an Intellectual Property Law Attorney

The right to pursue a patent expires if an inventor does not file within one year of publicly showing, using, or selling the invention. Inventors who have done any of these things should seek legal assistance promptly. Contact a patent law attorney in your area to get started on the patent process.