What Is a Patent?

A patent is a right granted to an inventor by the federal government that gives the inventor exclusive rights to that invention. These rights prohibit others from making, selling, or using the invention without permission for a period of time. Small business owners, entrepreneurs, and early-stage startups should address intellectual property protection (IP protection) if they have invented a new product. Patents help protect against theft of intellectual property or trade secrets.

This FindLaw article provides a general overview of patents and how to protect your intellectual property.

Understanding Patents

The patent system encourages inventions that are unique and useful to society. Congress has the power to grant patents in the Constitution, and federal statutes also govern patents. The United States Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria.

Patent Categories

There are three different categories or types of patents: Utility patents, design patents and plant patents.

Utility Patents

Utility patents are the most common type of patent. These grant protection to new machines, chemicals, and processes. An example is a delayed windshield wiper system.

Design Patents

Design patents are a type of patent that protects manufactured objects’ unique appearance or design​. The ornamental design, or outward appearance, gets protection. An example is the original glass bottle for Coca-Cola.

Plant Patents

Plant patents are a type of patent that protects the invention and asexual reproduction of a new variety of plants, such as hybrids. Asexual reproduction is when a plant reproduces in ways other than from naturally occurring seed such as by grafting or rooting cuttings. An example is the Irish potato.

Determining What Is Patentable

For an invention to qualify for a patent, it must meet the following criteria:

• Novel,

• Non-obvious, and

• Useful. 

Novel

An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the patent application date. This rule reflects the public policy favoring quick disclosure of technological progress.

Non-Obvious

An invention is non-obvious if someone in the field of the invention would consider it an unexpected or surprising development. Naturally occurring substances and laws of nature, even if newly discovered, are not patentable.

Useful

An inventor applying for a utility patent must prove the invention is useful. The invention must have some beneficial use and must be operable. A machine that does not operate to perform its intended purpose is not useful and, thus, is not patentable. A useful invention qualifies for a utility patent so long as it falls into one of five categories:

• Process: A method of treating material to produce a specific physical change in the character or quality of the material. This is generally an industrial or technical process.

• Machine: A device that uses energy to get work done.

• Method of manufacture: Manufacture is the process in which the art or industry of people creates an article of manufacture. An article of manufacture refers to a tangible object resulting from a manufacturing or production process.

• Composition of matter: Includes a mixture of ingredients or a new chemical compound.

• Useful improvements: Any addition to or alteration of a known process, machine, manufacture, or composition.

Non-Patentable

Business ideas or suggestions are not patentable. The inventor must have figured out a concrete means of implementing their ideas to get a patent. An invention with no legal purpose or for an unsafe drug is not patentable.

Examples of Patentable Items

These categories include everything humans make and the processes for making the products. Examples of things that are patentable include:

• Computer software and hardware

• Chemical formulas and processes

• Genetically engineered bacteria, plants, and animals

• Drugs

• Medical devices

• Furniture design

• Jewelry

• Fabrics and fabric design

• Musical instruments

Applying for Patent Protection

Unlike a copyright, an invention does not arise and receive patent protection automatically. An inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale.

An inventor (or the inventor’s attorney) generally makes a preliminary patent search before applying for a patent. This determines if it is practical to proceed with the application. The inventor then submits the application and a non-refundable fee to the U.S. Patent and Trademark Office.

At the USPTO, patent examiners review the patent for patent eligibility. If granted, the inventor pays another fee. The government then publishes a description of the invention and its use.

Only a patent attorney or patent agent may prosecute patents before the Patent and Trademark Office. Only someone with a degree in certain technical or scientific fields is a patent agent. 

Additionally, the U.S. Small Business Administration (SBA) and Small Business Development Center (SBDC) partner with the USPTO to train small businesses on intellectual property rights.

Patent Protection Length

Utility and plant patents last 20 years from the application date. Design patents last fifteen years. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier.

After a patent expires, the invention becomes public property. Public property means the invention is for use or sale by anyone. For example, after the patent on Tylenol expired, other pharmaceutical companies began producing a generic version of the drug.

Patent Infringement

If an inventor thinks someone uses their patented invention without permission, they may take legal action by bringing a lawsuit against the infringer. If the federal court agrees, it may award the patent holder:

• Costs, such as court filing fees and associated costs with the trial

• Attorney’s fees

• Damages in an amount equal to a reasonable royalty

• An injunction, which is an order prohibiting another person from infringing on the patent

An action for infringement is time-consuming and costly. Due to this, infringement cases settle often.

Before sharing your new product idea with anyone, have them sign a Non-Disclosure Agreement (NDA). This ensures the disclosed information remains confidential.

Get Legal Help

If you have an invention you want to protect, you should speak to a patent attorney. They are patent law experts and can guide you through the patent process. They will give you sound legal advice and help you with patent filings. Speak to a patent law attorney today.