What is a Patent?
Patents are one of the few forms of intellectual property specifically provided for in the United States Constitution. The United States Patent and Trademark Office is the only government agency authorized to issue patents to the public in the United States. A patent gives the patent holder a right “to exclude others from making, using, offering for sale, or selling their invention throughout the United States or importing their invention into the United States” for a period of 20 years, or 14 years in the case of a design patent. After that, the patent expires and the invention contained in the patent enters the public domain, which means that any one can use it without consequence.
There is a sense of urgency when it comes to filing an application for a U.S. patent. Under the America Invents Act, the United States Patent and Trademark Office awards patents on a first-to-file basis, meaning that if two inventors filed patent applications for the same invention, the first inventor to file his or her application with the United States Patent and Trademark Office would be awarded the patent, assuming all other requirements for obtaining a patent are satisfied.
What Can Be Patented?
Patent eligible subject matter is statutorily provided for. Anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” can be entitled to a patent for that invention. Abstract ideas, laws of nature and mental processes are not eligible for patent protection.
Overview of the Patenting Process
In order to obtain a patent on an invention, first an application must be drafted and filed. There are several different types of patent applications, including:
- Utility applications – used for almost all inventions.
- Design applications – special applications limited to the design of something and that have a single claim.
- Plant applications – used for disclosing new types of plants.
- Provisional applications – an incomplete application that acts as a place-in-time holder, does not require a claim set at time of filing, does not get examined, and requires the filing of a complete non-provisional application within one year.
- Non-provisional applications – a completed application that is examined by the Patent Office.
Which type is right for your invention depends on what your invention is and how ready you are to file. Although an applicant may file a patent application by his or herself as a pro se applicant, there are many rules that must be followed in order to file a patent application properly. Improper applications or not following all of the rules can cause serious delays in the issuance of a patent or could result in the application becoming abandoned. A registered patent attorney can help you determine which application type you need, can help you prepare your application and can take you through the prosecution process.
A non-provisional patent application will be examined by the Patent Office and must include:
- A disclosure of the invention, including how the invention works;
- Drawings of the invention (if appropriate); and
- A set of claims, which specifically lay out the metes and bounds of the patent protection sought in the application.
To start the prosecution of a patent application, the applicant must submit his or her application to the United States Patent and Trademark Office for examination by a patent examiner. The examiner will consider the application and then search existing patents, published applications and other non-patent literature from around the world that is publicly available to see if the invention claimed in the application already exists.
Upon review of the application by the patent examiner, a determination is made as to whether the invention disclosed in the application is:
- Patentable – meaning that the invention is one of the statutorily provided patentable subject matters, namely a machine, method, composition of matter or process;
- Novel – meaning that the invention is new and hasn’t been done before; and
- Non-obvious – meaning that in light of what information was publicly available at the time the invention was made, someone with ordinary skill in the same field of art as the invention would not have found it obvious to come up with the claimed invention in the patent application.
If the invention is patentable, novel and non-obvious, a patent will issue. If not, the examiner will reject the application. The applicant, and his or her attorney, has the opportunity to amend the claims of the patent application, so long as the changes made to the claims are consistent with the disclosure made in the application, and may submit the application back to the Patent Office for further consideration by the examiner. The applicant can also apply for and purchase more prosecution time, i.e., consideration of more claim amendments, if so desired.
Patents in California
Over the last decade, California has seen a steady increase in the number of patents issued to inventors residing in California. For instance, in 2013 over 36,000 patents were issued to Californians. A new satellite of the United States Patent and Trademark Office located in Silicon Valley is due to open in late 2014, and there is no doubt that the number of patents sought by Californians will only continue to increase.
Patent law is one of the most complicated areas of law because not only does it require a technical background, such as a degree in science or engineering, to understand the inner workings of many inventions, but it also requires a thorough knowledge of patent prosecution procedure. The experienced patent attorneys at the Law Office of Kenechi R. Agu have the necessary skills and technological background to help you procure patent intellectual property rights both in the United States and abroad.