Patent Protection 101

Patent Protection 101

June 1, 2017  /  Darrin Burnham- Patent Attorney

Category: Business Tips
Category: Design & Dev
Category: Production
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What is Patent Protection?

Many people are familiar with the term “patent protection.” It is fairly common knowledge that a patent (along with a trademark, copyright, and other tools) is something someone might be able to use to protect their intellectual property. A patent is a government-granted monopoly given to an inventor to allow them to exclude others from making, using, or selling the invention for a certain period of time. It is important to recognize that a patent does not guarantee the owner the right to make, use, and sell the covered product uninhibited, but it does give them the right to exclude others from doing so.

US patents are heavily regulated and the process of obtaining one can be complex, time-consuming, and expensive. There are many procedural and substantive law, rules, and regulations that play a part in securing a patent. However, the monopoly offered in exchange for disclosure of the invention to the public in a patent application can be a make-or-break deal in the success of a product, business, brand, or investment.

US vs. Foreign Patent

If someone holds a US patent, they can exclude others from making, using, or selling a product that is subject to their patent in the states. A US patent may be enforced if an item that was made in another country is then sold or offered for sale in the states.

Foreign patents may be obtained to prevent the manufacture, use, or sale of the invention in other countries. To decide if a foreign patent is a good fit, one must consider the market for the invention outside of the US and where the manufacturing or other business centers might exist. Different countries have different laws and regulations relating to the patenting process and types of enforcement available. The assistance of a patent attorney is highly recommended when considering filing for patent protection in other countries.

4 Types of Patents 

The first question when considering patent protection is what kind of patent protection is the best fit. The most commonly recognized type of patent is a non-provisional patent. This type of patent provides a thorough protection for the invention. It endures for 20 years from the date of filing with the US Patent and Trademark Office (USPTO). From the time of filing an application for a non-provisional patent, the process can take several years. The applicant may begin to mark any product with “Patent Pending” immediately after filing for this type of application.

Another type is called a provisional patent application.

This application is not examined by the USPTO. It is easy and generally less expensive to file. The provisional application lasts one year from the date of filing. It serves to secure that date of filing as the date of protection if the provisional is converted into a utility patent within the one-year life of the provisional. There are many benefits to filing a provisional which is then followed by a non-provisional.

A start-up or independent inventor may file a provisional and begin to mark products as “Patent Pending”. They may choose to do this before approaching vendors or manufacturers regarding the product. This may allow an inventor to test the water a bit before committing to the expense and protection of a utility patent. In another example, an invention that will see continued development and different evolution may benefit from multiple provisional applications which may then be captured in one or more corresponding non-provisional applications. Other strategies involving provisional filings may also be advantageous depending on the situation.

Design patents are also available to inventors and designers.

These patents focus mostly on the non-functional physical and aesthetic qualities of an invention, as opposed to the functional and operational elements which are more commonly the subject matter of non-provisional and provisional applications. Design patents are relatively inexpensive to obtain and also benefit from a simplified (and thus, less expensive) litigation process if the holder ever has need to enforce the design patent against another.

Plant patents are a specialized version of the utility patent reserved specifically for new varieties of plant.

This patent also lasts for 20 years from the date of filing. It allows the holder to exclude others from reproducing, selling, or using the plant produced under the patent. Other specific requirements apply.

To find out the first steps in applying for a patent, check out Get Your Patent in 5 Steps. The patent process can get complicated. If you have any questions about patents, feel free to contact us.


***This post is for informational purposes only and does not provide legal advice. Material presented herein are to provide readers with free information regarding the laws and concepts described. However, this post is not designed for the purpose of providing legal advice to individuals. Readers and visitors should not rely upon information provided in the post as a substitute for personal legal advice. If you have an individual legal question or situation, you should seek legal advice from a licensed attorney.

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