How to get a Patent
By Tim Meyer, Noro IP Staff Writer
A quick guide to the patent process. Includes important terms.
While fairly straightforward, the technical terms and legal aspects of filing a patent application can be confusing. I’ve attempted to outline the patent process step-by-step and include simple explanations of patent terminology you will encounter along the way. It should be noted that getting a Trademark or Copyright follows a very different process.
Contact Noro IP for more specific information in those areas.
Step 1: Record the Invention ASAP
When you first invent something, it is important to write up a complete, dated description of the invention. Later, this record will provide evidence that the inventor possessed the invention on the date indicated. In the United States, a patent is given to the first to invent, not the first to apply for a patent. The inventor must sign and date the description and have one other witness sign and date it as well. The record can be simple and short, but should include enough details to convey clearly what the invention is. In most cases, it will utilize patent drawings or diagrams, which show how the invention works.
Step 2: Don’t Talk About It!
If the invention has been described in a printed publication, has been in public use or on sale before the invention was recorded (here’s where that dated record comes in handy), it can not be patented. Also, if an invention has been described in a printed publication, has been in public use or on sale for more than one year before the formal patent application date, it cannot be patented.
Step 3: Perform a Patentability (Novelty) Search
Many people don’t realize just how much has already been patented. Even if you don’t see your invention on the shelves, that doesn’t mean it’s not already be owned by another inventor. Because of this, Noro IP highly recommends getting aPatentability (Novelty) Search done before applying for a patent. Patent applications can cost approximately $2,000 - $10,000 and take years to complete. But Patentability (Novelty) Searches start at $300 and take approximately 1-2 weeks, saving you considerable time and money to determine if your invention is patentable and if filing a patent application is worth it.
An invention must be new, useful and non-obvious to get a patent granted. You may conduct a Patentability (Novelty) Search on your own using keywords and search terms using the free USPTO Patent Database or other patent databases. You will also want to search the USPTO’s Patent and Trademark Depository Library for other patent-related publications.
However, given that millions of patents exist, a Patent Agent or Attorney will be more efficient at conducting a professional, exhaustive search that proves an invention to be new, useful and non-obvious.
Your Patentability (Novelty) Search done by a reputable Patent Agent or Attorney can answer the following questions:
a) Is your idea truly novel, has already been patented, has been anticipated or rendered obvious?
b) Is it worth the cost of filing a patent at all, given the scope of patentability?
c) What is your competition doing?
d) Is it worth the effort and expense to fully develop and market your concept?
The results of the Patentability (Novelty) Search will be printed on your patent and serve as evidence that your invention is novel. During the application process a Patent Examiner from the USPTO will also conduct a similar search and may discover different findings.
Step 4: To Apply or not to Apply?
After analyzing all the related information from your Patentability Search and marketing and development research, you need to make a decision whether to apply for a patent or whether to continue developing your invention further. In the case of applying, you have several options available depending upon your time schedule, the invention’s need for protection and available funds. Your registered Patent Agent or Attorney can help you with professional recommendations, but the ultimate decision is yours as an inventor.
Step 5: Filing a Patent Application
There are three categories of patents you may apply for: Design, Plant, and Utility. The majority of Patent Applications are Utility Patent Applications and there are two types of Utility Applications: Provisional and Non-Provisional.
AProvisional Utility Patent Application provides immediate protection for your invention while giving you time to file a regular,Non-Provisional Patent Application. A Provisional Patent allows an inventor to claim "patent pending" status for the invention for 12 months at a fraction of the price of a regular Patent Application. Often five to ten pages, a Provisional Patent Application consists of text and drawings that describe how to make and use your invention.
It provides the inventor with a 12 month period to further develop the invention, determine marketability and seek licensing agreements. If you file a regular, Non-Provisional Patent Application within 12 months of filing the Provisional, you can claim the original Provisional filing date to prove that your invention came before other similar developments.
A Non-Provisional Patent Application is a regular Patent Application that will protect your invention for 20 years. It is more detailed than the Provisional Application and includes a full set of claims and patent drawings. It costs more than the Provisional to prepare and file and takes longer to process as well. The US Patent and Trademark Office has very specific requirements for preparing and filing a Non-Provisional Utility Patent Application, which must include a data sheet; a specification; a claim or claims; drawings, when necessary; an oath or declaration; and the prescribed filing, search, and examination fees.
There are many other legal nuances in the Patent Application process which can affect patentability and enforceability such as rules about who can apply for a patent, claim types and specific patent law definitions of new, useful and non-obvious. Noro IP can walk you through the entire process from start to finish.
For a FREE consultation or additional information, call Noro IP at 1-800-605-6993.
*Important Patent Terms*
Patent Drawings (also called patent figures, drafting, sketches, diagrams, or art) – any artwork accompanying patent documents. Usually, Patent Drawings are made by professional, technical artists and must follow the guidelines of the US Patent and Trademark Office’s (USPTO) Design Unit.
Patentability Search (also called Novelty Search) – a thorough search of unexpired and expired patents, related patent and non-patent literature and publications.
Novelty – if an invention is "novel," it is different from anything seen or known before the time of invention. Your invention must be proved novel in order to be eligible to receive a patent.
Patent Agent – patent professionals who usually have a technical education background but have also passed the USPTO patent bar exam to become a registered patent agent with the USPTO. They can perform patentability searches, but not applications.
Patent Attorney – attorneys who usually have both a legal degree and a technical degree (such as engineering, biomedical or computer science) and have passed the patent bar exam to become registered with the USPTO. They can perform patentability searches and prepare patent applications, but are usually more expensive.
Patent Examiner – a USPTO professional who examines patent applications to determine patentability. This is the person who will decide to either grant or deny the patent.
New (or Novel) – New or Novel refers to the invention never being patented, known or used by othersUseful – patent law specifies that inventions must have a useful purpose.
Nonobvious – the term used if your invention is different enough from similar inventions to warrant a patent being granted. It must be "nonobvious to a person having ordinary skill in the area of technology related to your invention." Think of it as a threshold point:
New, Useful and Non-obvious example: Let’s consider the iPod. Although hand-held music players have been around for a while, it was unique because it could store so much music in a small amount space, which was a nonobvious improvement to those in the electronics field. It’s useful purpose is to allow people to listen to music. It is new (or novel) because this type of technology inside of a hand-held music player had never been patented or used by others before. While the iPod is a fairly straightforward example, many inventions walk closer to that fine line between patentable and non-patentable. That is when a Patent Agent or Attorney with a technical background in the field of your invention (ie electrical, mechanical, biomedical, etc.) comes in handy to help determine whether your invention will pass that threshold point or not.
Prior Art – refers to all inventions that came before your invention. Existent patents are the biggest source of prior art, but non-patent literature such as magazines or newspapers are important to discover whether someone has invented the same thing without patenting it. Also, international patent documents and international patent databases should be included
Patent Claims – the claim or claims are a series of noun phrases following the description and drawing portions of the patent application which define the extent of the protection granted by a patent. They are extremely important for patent prosecution and litigation when enforcing your patent.
Patent pending (also called patent applied for) – as soon as an application is filed, you must mark "patent pending" on your product. This is so that you may recover damages from an infringer.
Infringement – any party which manufactures, imports, uses, or sells patented technology during the term of the patent is considered to infringe on that patent and is subject to legal action. Infringement is determined from the scope of the patent claims.
Design Patent- allows any person who has invented any new and non-obvious ornamental design for an article of manufacture to protect that design. The Design Patent protects only the appearance of an article, but not its structural or functional features and has a term of 14 years.
Plant Patent - grants a patent to anyone who has invented or discovered and asexually reproduced any distinct and new variety of plant and has a term of 17 years.
Utility Patent - patents an invention (a process, machine, manufactured item or composition of matter) for a term of 20 years. There are two types of Utility Patent Applications: Provisional and Non-Provisional.
Provisional Utility Patent Application - provides immediate protection for the invention while giving the inventor time to file a regular Non-Provisional Patent Application
Non-Provisional Utility Patent Application - a regular Patent Application that will protect your invention for 20 years if granted
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Chocolate Meringue Pudding
- 1 cup of milk,
- 2 eggs (yolks),
- 2 tablespoonfuls of flour,
- Pinch of salt,
- 4 teaspoonfuls of Baker's Cocoa,
- 3 tablespoonfuls of sugar,
- 1/2 a teaspoonful of vanilla.
Put the milk in the upper part of the double-boiler, and heat. Mix flour and cocoa together and soften in a little cold milk; mix until free from lumps. When the milk is hot, add the flour, and cook, stirring often, eight or ten minutes. Beat yolks of eggs lightly; add sugar and salt, and mix well. When mixture in double-boiler has cooked sufficiently, strain it over the mixture in the bowl. Put back in double-boiler and allow it to cook one or two minutes (stirring constantly), just enough to slightly thicken the eggs. Remove from the stove, and when cool add vanilla and put in the serving-dish. Cover with a meringue. Place dish on a board, put in the oven with the door open, and allow it to remain there for ten or fifteen minutes, and when the meringue will not stick to the fingers, close the door and let it brown slightly. This pudding can be eaten warm or cold, but is much better cold. This will serve four persons generously.
Tags: Patent Law, Attorney in Law, Estate Planning, Law Office, Lawyers and Attorneys
