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Patent FAQs

What is a patent? 

 

A patent is a limited duration property right relating to an invention, granted (in the USA) by the United States Patent and Trademark Office in exchange for public disclosure of the invention.   It is granted 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.  Note: a patent does NOT necessarily give an inventor the right to make, use, offer for sale, or sell the invention throughout the United States nor import the invention into the United States.

 

Who can apply for a patent? 

 

A patent may be applied for only in the name(s) of all the actual inventor(s) although patents may be assigned to non-inventors.

What can be patented?

 

Utility patents are provided for a new, nonobvious and useful: process; machine; article of manufacture; composition of matter; and improvements thereof.  Design patents are provided for the ornamental design of an article of manufacture.  Plant patents are provided for asexually reproduced plant varieties.

 

What cannot be patented? 

 

Laws of nature; physical phenomena; abstract ideas cannot be claimed as an individual’s intellectual property.  Literary, dramatic, musical, architectural, and artistic works cannot be patented but may be copyright protected.  Additionally inventions which are not useful or offensive to public morality may not be patented.

What is required for something to be an Invention? 

 

An invention must be: novel; useful; and nonobvious.

What are the requirements for a non-provisional patent application?  

 

In order to have a patent application that might lead to an issued patent, the patent application must: adequately describe or “enable” the invention to allow for one of ordinary skill in the art to make and use the invention; and identify what is claimed by the inventor in clear and definite terms.

What are the parts of a non-provisional patent application? 

 

An enabled utility patent application will include a specification, at least 1 claim, an abstract, and typically at least one drawing which describe the invention in enough detail to allow for one of ordinary skill in the art to make and use the invention without undue experimentation.

What is a specification? 

 

A specification is the description of the invention which includes information regarding the problem the invention solves, how it is better than other products currently available (the prior art), how to make the invention, and how to use the invention.

What is a claim? 

 

A claim is what people typically think of when they think of a patented invention.  It is a single sentence describing what the inventor considers to be the invention.

What is an abstract? 

 

It is a short (150 words or less) description of the invention.

What are patent drawings? 

 

They are typically black and white line drawings which illustrate the invention and/or its usage.  There are several requirements which patent drawings must meet to be accepted by the USPTO.

What are the main categories of patent applications? 

 

In the United States, there are utility patents, plant patents, and design patents.  A utility patent or a plant patent can initially start from either a provisional patent application or a non-provisional patent application.  A design patent starts from a non-provisional patent application.

How long is a patent valid? 

 

For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which begins with the date of the grant and usually ends 20 years from the date the inventor first applied for the patent subject to the payment of appropriate maintenance fees for a utility patent. There are no maintenance fees for plant patents. Design patents last 15 years from the date the patent is granted. No maintenance fees are required for design patents.

What are the requirements for a provisional patent application? 

 

A provisional patent application includes a specification, and typically at least one drawing and an abstract which describe the invention preferably in enough detail to allow for one of ordinary skill in the art to make and use the invention without undue experimentation.  Provisional patent applications do not require any claims but they typically include at least one.  Though a provisional patent application is not typically prosecuted (in certain instances it can be converted to a non-provisional application, but the details of that are beyond the scope of this FAQ) it can establish a priority date and effectively extend the term of a patent to 21 years from the date the inventor first applied for the patent.

 

Is the provisional patent application prosecuted (acted upon by the USPTO)?  When a provisional patent application is filed with the USPTO it is given a filing date and an application number.  The patent office does not review it in any other way.  It is typically used as a place holder for up to 1 year to allow an inventor to develop a non-provisional patent application which will be prosecuted by the USPTO.

How much does it cost? 

 

Short answer: it depends.  Long answer: The USPTO charges three basic fees for utility patents: the filing fee, the issue fee, and the maintenance fee.  The filing fee is due upon filing an application.  The issue fee is payable at the time your patent is allowed and is only due IF your patent is allowed.  (Simply submitting an application does not necessarily mean that you will get an issued patent.)  Maintenance fees are due 3-1/2, 7-1/2, and 11-1/2 years after your patent issues.  Fees vary depending on the type of patent application you submit, the number and types of claims included in your application, and upon whether you are considered a micro-entity, a small-entity, or an undiscounted entity.  There may be additional fees that come due during the “prosecution” of your application.  Small entity fees are ½ those of undiscounted fees and micro-entity fees are ¼ those of undiscounted fees.  If you use an attorney or agent to help you with your invention, there will be fees for those services as well.

         

Patent filing fees for micro-entities will typically start at ~$350 and for small-entities will typically start at ~$700.  Issue fees for micro-entities will be ~$250 and for small-entities will be ~$500.  Maintenance fees are low at 3-1/2 years ($400 & $800 respectively) and climb to 11-1/2 years ($1,850 & $3,700) as of January 14, 2017 (& revision of May 1, 2017) (these fees were in effect at time this paragraph was written but may have been supplanted since – check with your agent or attorney or the USPTO for the latest fees).

What is a small entity?  

 

Among other things it is a person or small business that meets the size standards set forth by the Small Business Administration.  Most individual inventors and small businesses meet the criteria to qualify for small entity status.  Refer to your agent or attorney if you have questions on whether or not you qualify.

What is a micro entity? 

 

Among other things it is a person or small business that controls the rights to 4 or fewer total patents and non-provisional patent applications and also meets either gross income limits or is a qualified educator.  As of October 14, 2016 the gross income limit to qualify as a micro entity was $169,548.

Is there an “international” patent? 

 

No.  In order to receive patent protection in countries other than the United States and inventor needs to file an application in each state for which patent protection is desired.  There is an “international patent application” of sorts – the Patent Cooperation Treaty (PCT) application which an inventor can use to begin the process of entering an application in various countries and gives the inventor in most cases 18 extra months to file an application in additional states.  Typically an application to a state other than the first applied must be filed within 12 months but if a PCT application is filed within 12 months of the priority date an inventor can delay entry into another/other states to within 30 months of the priority date.

 

What is a priority date? 

 

It is the earliest date that an enabled patent application was first filed.  The current application must not be abandoned to maintain the priority date.

The above information is partially adapted from the USPTO website.