As a small business owner, entrepreneur, or startup, one of the key concerns you must address is intellectual property protection (IP protection). In the early stages of small businesses, IP protection may seem overwhelming. Your intellectual property rights can come in the form of:

• Patents
• Trademarks
• Trade secrets
• Copyrights

The following provides a general overview of what a patent is.

What Is a Patent?

A patent is a right granted to an inventor by the federal government that permits the inventor exclusive rights. These rights exclude others from making, selling, or using the invention without permission for a period of time.

The patent system encourages inventions that are unique and useful to society. Congress has the power to grant patents in the Constitution. 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: 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: 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: 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 seeds. For example, 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 be novel, non-obvious, and useful. Ideas or suggestions are not patentable. The inventor must have figured out a concrete means of implementing their ideas to get a patent. Neither an invention with no legal purpose nor an unsafe drug would be patentable. To receive a patent, an invention should be at least one of the following:

• 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. Useful inventions qualify for a utility patent so long as they fall into one of five categories:
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  • Process: This is 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: This is usually 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: To qualify, this will include either a mixture of ingredients or a new chemical compound.
  • Useful improvements: Any addition to or alteration of a known process, machine, manufacture, or composition is potentially worthy of a patent.

Abstract principles, fundamental truths, calculation methods, and mathematical formulas are not patentable, but patents are available for a formula or method process. For example, a patent for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program may be 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, a patent does not arise and receive 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 their 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 those with a degree in certain technical or scientific fields can be patent agents.

Patent Protection Length

Utility and plant patents last for twenty years from the application date. Design patents last for 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 generic versions of the drug.

Patent Infringement

If an inventor thinks someone is using 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 often are settled instead. Before sharing your new product idea with anyone, have them sign a Non-Disclosure Agreement (NDA). This ensures the disclosed information remains confidential. Additionally, the U.S. Small Business Administration (SBA) and the Small Business Development Center (SBDC) partner with the USPTO to train small businesses on intellectual property rights.

Contact a Patent Law Attorney for Legal Advice

If you have an invention you want to protect, it's a good idea to get acquainted with the patent process and intellectual property law. With a patent, you can license to other companies or sell or produce the invention yourself. Failure to properly register your patent ends that dream. Contact a patent law attorney if you need legal help with patent filings.