Software patents - what software can be patented?

Software Patents (Everything You Need to Know)

Software Patent law is very complex. This article will shed some light as to the patentability of software. We will examine whether software is patentable and the viability of other legal software protections. Also, we will answer common questions, such as: Can you patent software? What aspect of software can you patent? How much does patenting software cost? By the end of this article, you will have a basic understanding of software patents.

Throughout the 1970s, 80s, and 90s, the U.S Supreme Court and Federal Courts created uncertainty when it comes to software patents. However, it has become clear that patenting software constitutes patentable subject under U.S Code § 101. If you own software, you know that it can be easily copied and/or reverse engineered, making patent protection the strongest tool to help you protect your software from being copied and sold by others.

What are Software Patents?

Software patents are a form of intellectual property right (IP) that protect computer programs. Software patents are applied for as a utility patent since the U.S code does not specify a particular patent for software programs.

To start off, it's important to remind you that software patents are different from software copyrights. Both are forms of intellectual property, but offer different types of protection.

Copyrighted software covers the exact code that was written for the software program, whereas patents protect the idea or functional aspects of a piece of software. Therefore, software patents are able to protect software far more broadly than copyright law.

This is so because copyright protects the particular expression of an idea and not the idea itself. Copyright protection protects a software's source code, which is the form in which a programmer types a program into the computer.

So, if another software developer comes along and independently derives a similar or even identical computer program, no copyright infringement has occurred if the source code is different from yours. That said, patents offer broader protection, so what do you need to qualify for a software patent?

Can you Patent Software?

The short answer is yes, you can patent software however to successfully patent your software you must meet certain requirements. To qualify for a software patent, you have to show that your software meets the following requirements:

  • There is a commercial way to use the software on a machine
  • The invention (software) is novel (new)
  • The invention is not obvious to a person of ordinary skill in your industry
  • The patent application is fully filled out, including any disclosures to meet the guidelines set forth by the USPTO

Just remember that in the U.S your work is automatically copyrighted under U.S copyright laws at the time you create it. Seeking a patent is a smart idea, but the average person will need an experienced software patent attorney's help because the requirements for patenting software are very technical and should be performed by an attorney specializing in software patents.

Software Patents Example

The best example that we can use to illustrate a software patent is Amazon's one-click to buy button. Amazon patented this piece of software in 1999 and it has recently expired in 2017. That said, Amazon's patent offers some great guidance on how a software patent should be described.

Claim 1 of Amazon's 1-Click to Buy Software patent states the following:

"A Method of placing an order for an item comprising of:

  • under the control of a client system,
  • displaying information identifying the item purchasable through a shopping cart model; and
  • in response to only a single action being performed, sending a request to order the item..to a server system;
  • under control of a single-action ordering component of the server system, receiving the request;
  • retrieving additional information previously stored for the purchase...
  • generating an order to purchase the requested item for the purchaser....using the retrieved additional information; and
  • fulfilling the generated order....
  • whereby the item is ordered without using the shopping cart model"

Benefits of Software Patents

As you may know by now, patents protect inventions and keep others from using your software whether or not they plagiarized parts of your code. Copyright law has some limitations and so many people often turn to patent law to protect their software. So why should you patent your software?

  • Patents give you the right to prevent people from using your software
  • Prohibit people from making your software
  • Prohibit people from importing your software to the United States
  • Prohibit people from selling your software

Should you Patent your Software?

Obtaining a patent for your software is both complex and expensive. Patents only protect your software in the country that issued your patent, so if you're software will be distributed internationally, you have to patent your software in each country where you want protection.

Despite the cost and complexity of software patents, many software developers still opt to patent their software for the added protection offered by U.S patent law.

If you want to obtain a software patent, you can make your software patent attorney's life much easier by doing the following:

#1) Describe Your Software

Take a look at amazon's example and use it for inspiration, you should know your software inside and out and be able to describe the set of functions that your software is able to perform. Describing what your software does will help your patent attorney in applying for your patent. Here are some of the points that you should prepare for your attorney:

  • Clearly state the functional aspects of your software
  • What sets your software apart from other pieces of competing software
  • What does your software do with information that's given to it?
  • What is unique about your software's user interface (UI)?
  • Does your software solve a specific problem?
  • What aspects of your software do you want the patent to protect?

#2) Research Existing Software Patents

Conducting a patent search before filing your patent application will help save you money and time in the long run. You want to make sure that no one else has patented the same type of software you're seeking to patent.

Also, looking at similar software patents will help you learn what's unique about your software. When conducting the search, if you find software that's similar to yours, you will have a better idea whether it's worth your time to go ahead with patenting your software.

That said, conducting a patent search for similar software patents is pretty expensive because you'll have to go through similar patents and compare your software with software that's already been patented. If you find a software patent that's similar to yours, you'll need to decide whether your software infringes on another patent.

Conducting a software patent search is a tedious process and you'll most likely need an experienced software patent attorney to navigate the waters for you.

#3) Explain How Your Software Works

  • Describe how your patent works
  • Describe each step your software performs
  • Describe how your software will reach it's goal

#4) Hire an Attorney

If you have new software that you want to patent, hire an experienced software patent attorney who can guide you through the muddy water of software patents.

Software patents are complex and having an attorney draft your patent application will help you avoid costly mistakes down the road.

Software Patents vs Copyright

Here are some of the advantages and disadvantages of patenting software vs relying on copyright law to protect your software:

Advantages of Software Patents vs Software Copyrights

  • Scope of Protection. Software patents protect the elements of the programs, as well as the environment in which the program is used. Said different, software patents restrict others from copying the software features that make your software so valuable.
  • Algorithm Protection. An "algorithm" can be patented for achieving a desired result.
  • Protection Against Subsequent Creations. Patents protect against subsequent inventors and not just copiers.
  • Lower Burden of Proof. If litigation arises, a patentee (patent owner) does need to show that someone copied their invention, whereas in a copyright case, the patentee would have to show copying.
  • Ease of Licensing. Patents make licensing technology more easy because you know exactly what you're getting with a patent
  • Long Term. Patents provide protection for a reasonably long term (20 years) which is more than enough for software that often becomes obsolete after only a couple of years

Disadvantages of Software Patents vs Software Copyrights

  • High Standard. There is a high level of disclosure that must be done for the USPTO to issue a patent
  • Uncertainty. There is some uncertainty as to what types of software-related inventions qualify for patent protection
  • Software Database & Documentation. Patents do not protect documentation and the software database protection is still not fully understood
  • Long Wait. Typically, utility patents take on average 19 months to issue, whereas software patents take on average close to 24 months to issue, depending on the complexity of your software
  • High Cost. Prosecuting a software patent is expensive and lengthy

How Long do Software Patents Last?

Software patents last for 20 years from the date you first file your software patent application, however you do need to pay periodic fees to maintain the enforceability of your patent. Source

How Much do Software Patents Cost?

According to the American Intellectual Property Law Association, software patents cost anywhere between $8,000 and $12,000 with the median software patent costing approximately $10,000. These prices include the fees associated with filing your software patent application. Source

Problems with Software Patents

Although you may want to protect your software with a patent, there are some problems with doing so. Obtaining a software patent is a difficult task and you're only protected after the USPTO grants your patent.

Today, the patent office is overwhelmed with patent application because they have a shortage of examiners who are qualified to review software-related inventions.

Those seeking to obtain a software patent will likely wait a minimum of two years for a patent and in many cases significantly longer than that. The usefulness of software is typically for a few years, you may have to spend that time (or even longer) jumping through legal hoops to get your patent application. You have to determine whether the process of getting a patent is worth it.

Also, the standards of novelty and nonobviousness that a software invention must meet to be patentable are much higher than the standard of original that needs to be met for copyright protection.

Additionally, if you fail to file a patent application in a timely manner, this failure may prevent you from every obtaining patent protection.

Also, failure to disclose information relevant to the patentability of the software, failure to list the correct inventors, and plenty of other bases exist for invalidating software patents.

Another reason why software patents are difficult to get is that they are often overly broad, which makes describing the software difficult to do. Many inventors have had their patents invalidated due to the broadness of their patent claims.

The best thing you can to do to navigate the software patent waters, is to go with an attorney specializing in software patents as they will help you avoid many of the pitfalls that software inventors fall into.

Is it Mandatory to Provide Software Code for Patent?

You do not need to provide software code to get your patent, however you need to disclose how your software achieves its claimed function. You do not necessarily have to disclose the exact code you're using to achieve the result, but including a flow chart that explains the steps required to perform the claimed function of your software is vital to get your patent application approved.

This isn't an exact standard or anything, but think about how you would explain your software to a fellow developer. If your patent application adequately describes the claimed function of your patent, your fellow developer should have an easy time understanding how it works simply by reading how it works without doing too much explanation.

To conclude, you should include just as much code as is necessary for the patent examiner to understand how your software works. It sometimes irritates computer programmers when they find out that the law does not require a single line of code to be written before they can patent their software. The reality is that the patent examiner will be looking at the design of the system as a whole. The code merely defines the vision in a language that the computer can understand.

If you do get your software patented, you are not asking protection for a single implementation of the code, rather the patent covers the different ways a coder will accomplish the same task your patent claims, giving you the broadest form of legal protection.

How to File a Software Patent?

As you probably know patenting your software allows the patentee (patent holder) to prevent others from using or profiting from the use of their software.

Step#1 Conduct a prior art search to make sure you are the first person to come up with the idea.

Step#2 Precisely describe your software with text and flow charts, explain why your software is novel (new), and explain the nonobviousness of your software

Step#3 Summarize how your software functions and why it deserves the protection of patent law

Step#4 Go to the USPTO web page and file your patent application

Step#5 Track the status of your patent application and respond to any inquiries by the USPTO

Software Patents

We hope that this article was able to shed some light on the muddy area of patent law. We answered common questions, such as explaining what software patents are and how to obtain them. We also mentioned a few of the problems that exist today to patent software. We went through some advantages and disadvantages of patenting your software vs relying on copyright law to protect your software. If you have any questions or comments, please feel free to leave them in the comments section below.


Differences between patents and trademarks intellectual property law

Difference Between Patent and Trademark

Patents and Trademarks are both different forms of intellectual property (IP). People often use the terms interchangeably, but it's important to know that they are two totally different types of IP. After reading through this article you'll start noticing just how often people use these two terms incorrectly. This article will explain what is the difference between a patent and a trademark (Trademark vs Patent).

When most people think about property, they think of something that's tangible, such as personal property (phone, jewelry, laptop, etc.) or real property (your home), they forget about intellectual property. Intellectual property is an intangible form of property and the two types of intangible property that we will cover today are patents and trademarks.

Patent vs Trademark

Patents vs Trademarks, how are there different? A trademark protects a symbol, name, word(s), logo, or design that represent the brand or source of the good, whereas a patent protects an inventor's invention or product itself. For example, lets take an NFL Football, here National Football League (NFL) functions as a trademark and the Football may be patented for it's special shape.

As a general rule, trademarks protect brand names, logos, and designs used to refer to the seller or manufacturers of a good. Patents give property rights to an inventor of a product, preventing others from using and selling the product. Companies often used both forms of intellectual property to protect their rights, just remember patents and trademarks are very different from one another.

Typically, patents and trademarks do not overlap, but they can in some limited cases. For example, an inventor can use a design patent to protect how an invention looks and if the appearance of the invention is used by customers to identify the source of the product, an inventor can protect the product with both a trademark and a patent.

Trademark Protection

A trademark consists of a word or group of words or a symbol that indicates a source of products or services. Trademarks are typically composed of a name, label, logo, slogan, colors, or combination of these to refer to a source of goods or services.

Trademarking your company's logo or catchphrase is important because trademarks make it easier for people to immediately seek out and choose your brand, creating brand loyalty. Without trademark protection, anyone can copy your exact logo or create a similar one and apply it to their own merchandise, leading to a loss of brand loyalty and leaving you without any means of recourse.

When you apply for and receive trademark protection, you can prohibit others from using, producing, or profiting from it. Also, if someone tries to copy your mark or produce a similar one, you have legal rights to sue for damages and to prevent them from using it.

Here are some well-known trademark examples:

  • Nike
  • Bloomingdale
  • Coca Cola
  • McDonald's Golden Arches
  • Tiffany Blue Color
  • Apple
  • Pepsi

Trademarks do not offer any protection on the products that you manufacture. So, if a you have competitors, they can legally produce the same goods or services that you make unless you file for a patent and the USPTO (United States Patent and Trademark Office) grants your patent application.

That said, the requirements to get your word(s) or logo trademarked are way less stricter than those to qualify for a patent. Now that we have discussed what trademarks protect, let's move on to patents.

Patent Protection

Patents protect inventions by restricting others from making, selling, or using a product that's similar to the one you've patented for as long as the patent is in effect. Once the patent term ends, your invention is no longer protected and falls into the public domain.

There are three types of patents that you can apply for:

  • Utility Patents. Utility Patent protect inventions, processes, machines, pharmaceuticals, and electronics. Utility patents last for 20 years from the date you filed your patent application
  • Design Patents. Design Patents protect the ornamental appearance of a product. For example, if you create new and unique jewelry you can patent the look by filing for a design patent. This patents lasts for 20 years from the date you filed your patent application
  • Plant Patent. This type of patent protect new, asexually produced plants. Plant patents last for 20 years from the date your filed your patent application

Here are some examples of patents:

Patent for hot drink sleeve

Trademarks vs Patents Chart

The following is a chart that lists the differences between trademarks and patents:


Comparison
Patent
Trademark
MeaningA government issues this right to patent holders which allows them to exclude others from making, using, or selling their inventionTrademarks are a symbol, words, or words that represent the source of a product or service
Protection OfferedProtects inventions, processes, or designsProtects a brand's goodwill and/or reputation associated with the trademark
PreventsPrevent others from producing, using, or selling the patented productPrevents others from using the same or confusing similar word, logo, or symbol to a company's registered trademark
RegistrationMust Register for ProtectionDiscretionary Registration but registration offers superior protection
ApplicationInventions, designs, plantsMarks or symbols on good representing the brand offering the goods for sale
Term20 years from first filing of patent applicationAs long as the mark is used as a trademark (If you register, must renew registration every 10 years)

Patent vs Trademark Protection Term

Another difference between patents and trademarks is how long each lasts. A trademark term lasts for 10 years, but if you continue to use the trademark, you can renew it for an additional ten years. As long as you keep using it as a trademark, you can continue to renew it in 10 year increments.

Trademark registration is not mandatory, you can establish common law rights in a mark based on your use of a trademark, however registration does give you some pretty good advantages.

Federal registration of your trademark has several advantages that include:

  • Nationwide notice of your ownership of the trademark
  • Exclusive right to use your trademark on goods or services
  • Legal presumption of ownership of your trademark

That said, a patent is a limited duration property right relating to an invention. Utility patents last for 20 years from the patent application filing date and design patents last for 14 years from the date the patent application is granted.

Generally, you cannot renew a patent once the term expires. Once a patent expires, it goes into the public domain and anyone can use, sell, or profit from the patented invention.

Why is Knowing the Difference Between Patent vs Trademark Important?

Knowing the difference between the two is important because you need to know for which protection to apply for. Applying for a patent when you need a trademark or vice versa is the easiest waste to lose money and waste your time. Filing an application for either a trademark or a patent is a long process that requires some familiarity with the law. That said, patent applications require much more time, effort, and expertise to complete.

Deadline to File for Trademark vs Patent

We will now discuss the deadlines for filing trademark and patent application. Read to find out if it's too late to file your application.

Trademark Filing Deadlines

If you want to register your trademark you don't have a deadline, you can file at any time but you won't be federally protected until you successfully register your trademark. That said, the filing date of your trademark becomes important if another person or company tries registering a trademark that's the same or identical to yours, your filing date helps the USPTO decide who has priority over the claimed mark.

Patent Filing Deadlines

As far as patents go, you are required to file an application with the USPTO within 1 year of disclosing your invention to the public. So, what's considered disclosing your invention to the public? Public disclosure includes any non-confidential communication an inventor makes to one or more members of the public, revealing the existence of the invention. That said, if you don't submit a patent application within 12 months of publicly disclosing your invention, you will lose the opportunity to patent your idea.

Currently, there is a loophole in the patent system that allows you to file an application even if you publicly disclosed your invention. Let's explore it. The standard patent application is a non-provisional patent application and it has a term of 20 years. However, if you didn't file your application within 12 months of disclosing, you can bypass this requirement by filing a provisional patent application. Filing a provisional patent application gives you an extra 12 months to work on the non-provisional patent application.

Having said that, the USPTO does not grant non-provision patent application, so you will still have to file a non-provisional patent application within 12 months of filing your provisional application.

So, you might be asking yourself, what's a provisional patent application? A provisional patent application (PPA) is a patent application that can be used by an inventor to secure a filing date while avoiding the costs associated with filing and prosecuting a non-provisional (standard patent application).

Because a PPA essentially provides a 1 year extension to file your non-provisional patent application, PPA provides you with an extra year to:

  • Experiment with your invention
  • Perfect your invention
  • Find financial backers
  • Determine sales potential
  • Finding parties who want to license your invention

Now let's move on to what a provisional patent application does not provide, it does not provide you with a provisional patent on your invention. Once you submit your non-provisional patent application, you will be able to use the words "patent pending" on your product and advertising materials. Once the USPTO approves your patent application, you can replace "patent pending" with "patented" or your patent number.

Difference Between What Happens when you Apply for a Patent vs Trademark

Trademark

Protecting your trademark by registering it with the USPTO is one of the best things that you can do for your business or brand. Trademarks offer legal protection against anyone who uses your exact mark or a mark that's similar to yours. Without federal registration, you run the risk of someone else using your trademark, confusing your customers and at worst damaging your reputation.

Registering your trademark comes with a cost, trademark applicants spend between $250 and $600 to register their trademarks. The process of registration takes between six months to sixteen months. While your trademark application is pending, you can use the "TM" to signify your trademark and once your trademark application is approved and your mark registered, you can begin to use the (R) registered symbol instead, signifying federal registration of your mark.

Patent

If you opt not to patent your invention, you run the risk of someone stealing your idea or invention and passing it off as their own. If you have an invention that is new and useful, you should apply for a patent if you want to profit from it because without a patent, you don't have any protection. Without protection anyone can copy your invention or product, sell it, and profit from it. Without having a patent under your belt, you leave your product or invention open to copycats, losing out on opportunities to license or sell your invention to companies.

Having said that, filing for and successful prosecuting a patent is a long and expensive process. The current fee to file a patent application ranges from $75 to $300 depending on the size of your business (yes, the larger your business, the more you pay in fees). The fees, don't end there, here is a list of fees you may have to pay throughout the patenting process:

  • Application filing fee: $75 to $300
  • Utility patent search fee: $165 to $660
  • Patent examination fee: $190 to $760
  • Utility patent issue fee: $250 to $1,000
  • Extensions of time $50 to $3,000
  • Patent maintenance fee: $400 to $1,600
  • 3.5 year maintenance fee: $400 to $1,600
  • 7.5 year maintenance fee: $900 to $3,600
  • 11.5 year maintenance fee: $1850 to $7,400

What this list shows you is that the cost of obtaining a patent can easily cost several thousand dollars when you calculate all of the fees associated with filing for and maintaining your patent.

Frequently Asked Patent & Trademark Questions

  • Do I need a trademark or patent? If you are trying to protect an invention, idea, or design you should apply for a patent. On the other hand, if you want to protect your company's mark or symbol, you should apply for a trademark.
  • How long does it take to get a trademark approved? If you applied for a trademark with the USPTO, you are looking at a wait time between 6 months and 16 months.
  • How long does it take to get a patent approved? All three types of patents take between 1 year to 3 years, depending on the complexity of your invention.

Steps to File Trademark or Patent Application

Trademark Filing Steps

  • Review the trademark database to make sure no one has already registered your mark or something similar to it
  • Fill out the trademark application with the USPTO
  • Track the status of your trademark on USPTO.gov
  • If you're approved, add the registered logo to your trademark

Patent Filing Steps

  • Search the patent database to make sure no one has patented anything like your idea
  • Choose & fill out the correct patent application (utility, design, plant)
  • File your application with the USPTO
  • Track the statute of your application on the USPTO website

Difference Between Trademark and Patent

If you're thinking about trademarking or patenting your intellectual property, we hope that this article helped you choose the correct intellectual property to protect. If you need any help with trademark vs patent, you can leave your question or comment in the section below. Thanks for reading, patent on!


what can you patent

What Can Be Patented?

If you're someone who has been working on an invention in your garage for months and have finally invented something useful, you might be wondering: can my invention be patented? We are here to explain what inventions or ideas can be patented and why protecting your invention is a good idea. We will cover what you can patent and how to choose between utility patents or design patents.

Under United States patent law, any person who comes up with a new invention, process, or design to protect it with a patent. To patent an invention, an inventor will have to satisfy four requirements that we will cover below to qualify for a patent. Source

Why Should You Patent Your Invention?

If you've invented something you've probably heard that to make money from it, the first thing you need to do is protect your idea before someone steals it. By protecting your invention, you will put yourself in a position to control who can use your invention and who can profit from and who cannot. If you've invented something that is commercially viable, protecting your invention can increase the chances that you'll be able to profit from creating your invention. Now that we have encouraged you to patent your invention, you should figure out whether your invention is patentable? To find out, read below.

What Can You Patent?

You can patent an invention if it has a useful purpose, has a patentable subject matter, is novel, and is non-obvious. Patents cover compositions, production processes, machines, tools, new plant species, and improvement to existing inventions.

The 4 Elements that must be satisfied to qualify for a patent are:

  • An invention must have patentable subject matter
  • Invention must have a useful purpose (utility)
  • Invention must be novel
  • Invention must not be obvious

We will describe the four elements that you need to qualify for a patent in detail below.

Step#1 What is Patentable Subject Matter?

To patent an invention, your invention must meet the USPTO's patentable subject matter requirement. Patentable subject matter requires the subject matter of an invention to fall within one of the following categories: process, machine, manufacture, or composition of matter. That said, once you have patentable subject matter, you must still satisfy the remaining statutory requirements of utility, novelty, and nonoviousness. So, what are some patentable subject matters?

What Does U.S Law list as Patentable Subject Matter?

The U.S Government has compiled a list of subject that it calls "Patentable Subject Matter." The list includes the following items:

  • A new plant type that exists through asexual reproduction
  • A machine (with moving parts or circuitry)
  • A process or method (for example, a new way of doing something better and/or more efficiently or a series of steps for carrying out a given task)
  • A simple tool that can do something (examples include pencils, screwdrivers, shovels, erasers, etc.)
  • A new composition or formula
  • A manufacture (serves as a "catch all" category for human made items that don't have moving parts, example: insulating sleeve for hot drinks or a helically grooved football)

What Can be Patented? | Examples of patentable subject matter include the following:

  • Electronics
  • Computer Hardware
  • Computer Software
  • Machines
  • Pharmaceuticals
  • Fabrics & Fabric Design
  • Process or method for doing something
  • Manufactured Articles
  • New Types of Plant
  • Makeup
  • Perfumes
  • Musical Instruments
  • Games
  • Jewelry

What Can't be Patented? | Examples of non-patentable subject matter include:

  • Discoveries
  • Scientific Theories
  • Mathematical Formulas
  • Naturally Occurring Substances
  • Laws of Nature
  • Presentation of Information
  • Procedure for Surgical Treatment
  • data packets transmitted over the internet
  • Substances found in nature

Step#2 Patent Usefulness (Utility) Requirement

The second requirement you have to satisfy to patent your invention is the utility (usefulness) requirement. Although U.S.C § 101 states that patent me be new and useful, the statute does not define what useful means, so we have to rely on case law to fill in the gaps.

To make things easier, the satisfy the usefulness requirement, the invention must have some real-world use. Often, applicants explicitly state the utility requirement in the patent application, however this is not always necessary especially in cases where the utility requirement is apparent.

For example, if you invent a new type of hammer, the utility of the hammer would be apparent. Even though the utility requirement is a low threshold, you probably won't gain anything from hiding the utility of your invention and relying on the patent examiner to figure out the utility of your invention.

If you have an invention that has a difficult utility purpose to understand, take the time to explain to what purpose your invention serves (what problem is it trying to solve). This will reduce the risk that patent examiner will reject your application on the basis that it "lacks" utility.

In the event that your application gets rejected on the basis that it lacks utility, the USPTO will give you a chance to amend your application to claim a specific utility. Once amended, the patent examiner will re-examine your application to determine whether your invention meets the utility requirement.

Overall, most inventions pass the utility rest. It's a relatively easy part of the application process.

Note that only utility patents must satisfy the utility requirement. Design and plant patents do need to make a showing of utility.

Step#3 Your Invention Must be "Novel"

An invention is "novel" if it's different from any other patented inventions, known as prior art. To be novel, the patent must be different from prior art, this includes anything that already exists in the public domain, prior patents, published patent applications, and publications available to the public and items on sale. The patent examiner will compare your invention by looking at the following items to determine whether your invention is novel:

  • Already patented inventions
  • Some patent applications filed before the inventor filed a patent
  • An invention that is patented overseas
  • Items on sale at the time of filing your patent application

If you want to profit from your invention you should probably patent but make sure you keep your invention secret until you obtain a patent. This is so because you have one year to file a patent application from the date you first published or first sold the patented item.

To wrap things up, the novel requirement requirement is quite simple and requires a showing that:

  1. No earlier patent exists covering your invention
  2. The invention isn't in the public domain
  3. No published applications of the invention exist
  4. No public versions of the invention exist
  5. The inventor cannot have sold an earlier version of the invention
  6. The inventor should not have disclosed any information about the invention more than a year before filing the patent application
  7. The inventor cannot have a joint-inventor who finds out about the disclosure more than a year before filing the patent application

Step#4 Your Patent must be Nonobvious

For the Patent Office to approve your patent application, your invention must be "nonobvious." Said differently, this means that people who are skilled the field of your invention would not consider your new invention obvious.

An invention is obvious if the differences between the item sought to be patented and prior art are such that your invention would have not been obvious at the time a patent application for a prior patent was filed describing the invention.

Overall, an invention is obvious when someone knowledgeable in the area of your invention looks at your invention and considers it to be already known. The person making this determination can look at several references to make this determination.

Obviousness is a fact-based and subjective inquiry that should be approached with an open-mind. Many inventors are not capable of making an honest determination, making the obviousness inquiry a significant hurdle for those seeking to patent their invention.

When determining whether a patent is obvious, the patent examiner will look to see if you're merely combining two different items of prior art in to make your invention. If the examiner finds that combining prior art A + prior art B makes your invention obvious. You need to experiment and attempt to combine A+B to determine whether the invention works as the examiner predicted. If you can show that A+B does not work as expected or predicted by the patent examiner, you can use that as evidence to rebut the patent examiner's rejection of your patent application.

Factors to Determine Nonobviousness

The nonobviousness of a filed for patent can be determined by looking a the following four factors:

  • The difference between prior art and the challenged claims
  • The level of ordinary skill in the field of pertinent art the time plaintiff filed his application
  • what one possessing that level of skill would have deemed to be obvious from the prior art reference
  • Objective evidence of obviousness
  • Objective evidence of nonobviousness

Objective evidence of obviousness / nonobviousness includes:

  1. The commercial success of the invention
  2. Whether the invention served some needed purpose
  3. Failure of others to find a solution for the problem at hand
  4. Copying done by others
  5. Licensing by others
  6. Skepticism of experts

That said, nonobviousness is one of the most difficult elements to explain because of the subjectivity involved in making the decision. Two people looking at your invention may come to different conclusions, one could say that your invention is obvious while the other can conclude it's nonobvious.

Can you Patent a Design?

Yes, you can patent a design. A design patent gives you legal claim to your original design, allowing you to exclusively use it, sell it, and profit from the unique look of your object. If you want a design patent, you can file a Design Patent Application with the United States Patent and Trademark Office (USPTO).

Design patents will only protect the look of your object. Design Patents are significantly different than utility patents, which cover how an item works and how they're used.

To qualify for a design patent, you have to show the following two things:

  • The design does not affect the function of the object
  • The design is integral to an object and the design cannot be removed

Design patents are important because they allow you to be the only person who profits from your design, giving you the ability to prosecute anyone who uses your design without your consent.

Can you Patent a Plant?

Yes, you can apply for a plant patent to protect your creation of a new plant species. Plant patents last for 20 years.

To qualify for a plant patent, you must show that:

  • The plant is novel
  • The plant is nonobvious
  • The plan is produced through asexual production

Can you Patent Software?

Some software functions that use algorithms and mathematics can be patented if they produce concrete and useful results. However, software that only performs mathematical equations cannot be patented. In a nutshell, software that converts one set of numbers to another will not be granted a patent, whereas software that produces useful and helpful results may be patentable.

Patent Scope

If you're thinking about patenting your invention, you've probably asked what is the scope of my patent? Patents are federal rights and once the USPTO grants your patent, you will be able to enforced it throughout the United States regardless of the state that you live in. That said, you cannot enforce a U.S patent outside of the United States.

Patent Life

Utility Patents: Last for 20 years from the date you file your patent application

Plan Patent Term: Last for 20 years from the date you file your patent application

Design Patent Term: Last for 14 years from date your patent is granted

What Inventions Can be Patented Conclusion

Hopefully this article helped you figure out whether your invention can be patented. We covered the differences between utility patents, design patents, and plant patents. We went into the requirements of getting a utility patent and design patents. If you have any questions or comments, please feel free to leave them in the comments section below and will reply as soon as we get a chance. Patent on!


Percentage and number of patents that are filed and approved each year

What Percentage of Patents Are Approved?

Inventors choose to protect their ideas and inventions by filing patents. A key element that inventors consider before filing their patent application is whether it will succeed. In the United States over 600,000 patents applications are filed each year at the United States Patent and Trademark Office (USPTO). This number includes the number of utility patents, design patents, and plant patents. So, exactly what percentage of patents get approved? We will answer what number of patents get approved each year in the U.S and elsewhere.

Before we dive in, we just wanted to remind you that patent applications are formal requests that are made to the USPTO (United State Patent and Trademark Office). The patent application includes a set of one or more claim that a person needs to make part of their application to get the application approved and a patent issued.

The trend of how many patent applications will get approved in the upcoming years is interesting to see, especially since the number of patents that are granted increases slightly every year. As of writing this article (2019), the USPTO has only made the patent statistics up to 2015 available, so a lot of the calculations that you'll see below are based on numbers from 1963 to 2015.

What Number of Patents are Approved?

The number of patents that are approved changes every year. According to the most recent statistics from the USPTO, approximately 52% of all patents filed in the U.S are approved. In 2015, 629,647 patent applications were filed and 325,979 were approved. The number of patent applications continues to increase ever-so-slightly every year. The number of granted patents is also on the rise, rising from 47% in 2010 to 52% in 2015. See the table below for more info on the number of patents that are filed and approved each year in the United States (US).

How Many Patents Are Filed Each Year?


Year of Application
Grant
Total Patent
Applications
Total Patent
Grants
Percentage of Patents
Approved
2015629,647325,97951.7%
2014615,243326,03252.9%
2013609,052302,94849.7%
2012576,763276,78847.9%
2011535,188247,71346.2%
2010520,277244,34146.9%

Having said that, you should consider the fact that calculating the number of new patents that are granted is difficult because the numbers that we presented here includes patent application that were initially rejected after being examined. After being rejected, inventors re-apply for "new," very similar patents that are known as "continuations."

A study conducted by Yale University showed that between 1963 to 2005, the USPTO allowed only 11.4% of new patent applications that are unrelated to any other patent application while giving a non-final rejection to more than 86% of newly filed patent applications.

2.3% of patent applications were abandoned prior to the USPTOs issuance of a first action decision.

That said there is some upside as the USPTO granted 36% of patent applications after one or more rounds of amendments and negotiations with the patent examiner. Approximately 14% of patent application were abandoned between the USPTOs non-final rejection and final rejection. Source

How Many Utility Patents Are Filed Each Year?

This table from the USPTO shows you how many utility patents are filed for each year in the United States, as well as the number of utility patents that are approved every year.


Year of Application GrantNumber of Utility Applications Filed Each YearNumber of Approved ApplicationsPercentage of Approved Applications
2015589,410298,40750.6%
2014578,802300,67751.9%
2013571,612277,83548.6%
2012542,815253,15546.7%

How Many Design Patents Are Filed Each Year?

This table from the USPTO shows you how many design patents are filed for each year in the United States, as well as the number of design patents that are approved every year.


Year of Application GrantNumber of Design Patent Application Filed Each YearNumber of Approved ApplicationsPercentage of Approved Applications
201539,09725,98666.4%
201435,37823,65766.8%
201336,03423,46865.1%
201232,79921,95166.9%

Patent Approval Rate

Some critics of the USPTO argue that patent examiners are sloppy and issue low-quality patents. Some even claim that over 95% of patent applications are eventually approved. So, are they right? The short answer is "no," they're not right according to the USPTO numbers that we summarized for you in the chart above. The patent approval rate in the U.S today is close to 52%, very far off from the 95% figure that some claim. So, if you think that the USPTO is handing out patents freely, you're gravely mistaken. So, what are some of the reasons why the USPTO rejects patent applications? Read below to find out.

Top 3 Reasons for Receiving a Patent Rejection

  • Invention is Not Novel. To get your patent application approved, your USPTO patent examiner must find your invention to be novel, non-obvious, and meets the patentability criteria. This is a subjective determination based on the opinion of the examiner that's assigned to your patent. So, if your invention is not the first of its kind (lacks novelty), the patent examiner might reject it on the basis of the patentability criteria. Also, if the examiner find that there is another invention that is the same as yours and was invented before yours, the examiner might find that your invention lacks novelty. Therefore, before applying for a patent, you should do a patent search to find out whether there is a similar invention to yours.
  • Your Invention is Obvious. The second most common reason for the rejection of patents is the fact that your invention needs to be nonobvious. So, not only does your invention need to be novel, it must also be non-obvious. The USPTO patent examiner will make this subjective determination, as well. Said differently, your invention must be unique. To reduce the chances of being rejected, you should make sure that your invention is as unique as possible from anything that's already out there. The more unique, the better the chances that the patent examiner will find you invention to be nonobvious. If you happen to receive non-final rejection letter from the USPTO, you should look for an attorney who will file a response argument, claiming that your invention has certain features and components that you did not cite in your patent application, this could get your invention approved.
  • Errors in Your Patent Application. The third most common reason patent applications get rejected is due to informality errors in the patent application and these include: (1) issues with reference numbers on drawings (2) issues with paragraph numbers (3) issues with line numbers (4) grammatical or punctuation issues (5) missing abstract (6) exceeding word count on abstract. Second, your patent application may be rejected if you have not sufficiently described how your invention works. As part of your patent application, make sure that you have described how your invention will work. If you fail to accurately describe your invention, the patent office won't be able to determine that your invention is patentable.

Percentage of Patents that are Approved in the U.S

We hope this article was able to shed some light on the percentage and number of patents that are approved each year by the U.S Patent and Trademark Office. If you have any questions or comments, please feel free to leave them in the comments section below.


How Long do Drug Patents Last (ANSWERED)

Drug patents have sprung a debate around how effective the patent system is in the United States. Drug makers want drug patent life to be extended while generic drug manufacturers want to reduce the lifespan of pharmaceutical drug patents. This article will cover how long drug patents last in the U.S, as well as other countries, such as Canada, the UK, and Australia. We will also cover the importance of drug patents.

Every year the pharmaceutical drug market gets rattled by the expiration of patents on blockbuster drugs and medications. When brand name drugs expire, this opens the door for generic substitutes to enter the market. That said, just because a patent on a brand name drug expires does not mean that a generic substitute will be immediately available, drug manufacturers use several methods to block generics from entering the market for as long as possible.

Before we dive in, let's take a look at how long drug patents last in the U.S.

How Long Do Drug Patents Last For?

In the United States, attorneys often throw out the 20 year patent term without adding more detail. That said, Drug patents last for 20 years from your earliest patent filing date. For patents filed before June 8, 1995, the patent will last 20 years from the filing date or 17 years after the patent was issued, whichever is later. Source

This means that the 20 year term for drug patents does not start from the date the drug was brought to market, but rather from the date that the drug was invented and the drug patent application was filed.

Drug patents can easily take 8 to 10 years to be issued because of all the testing that the FDA (Food and Drug Administration) requires from the person or company filing for the drug patent.

Why do Drug Patents Take so Long in the United States?

Drug patents take so long because the FDA requires drug makers to conduct tests and experiments on human beings to test the drug's efficacy and side effects. The more data the FDA requires, the longer the patent will take to be granted. While the drug is undergoing all of these trials and testing the 20 year patent clock is running.

Because pharmaceutical drugs take so long to be issued by the USPTO (United States Patent and Trademark Office), pharmaceutical companies are always looking for ways to extent the patent life of their top-selling drugs.

So, you might be asking yourself, why is it so important for pharmaceutical makers to extend the life of their patents? It's important because they are business to make money and extending the patent term (patent life) of their top-selling medications means that they can make more money for a longer period of time.

Some criticize the U.S patent system for rewarding pharmaceutical manufacturers by granting them market exclusivity for long periods of time that enables them to recoup their research and development (R&D) expenses along with hefty profits.

That said, it may be easy to blame the U.S Government and the pharmaceutical makers' lawyers for creating such a system, but the length of market exclusivity in the United States is what encourages so many companies to develop new, helpful drugs in the first place. Also, it's what encourages them to introduce their treatments first in the United States. This is why drugs generally reach the U.S market more quickly than any other place on earth. So, is market exclusivity really a bad thing? That's up to you to decide.

How Long do Drug Patents Last in Canada?

The law in Canada provides 20 years of drug patent protection that starts on the day a company files its drug patent application. The actual length of market exclusivity is between 8 to 10 years in Canada because of the extensive testing and regulatory hurdles that drug makers have to go through before bringing their pharmaceuticals to market. Source

In Canada, the government requires new drugs to undergo certain procedures that reduce the patent life of drugs. Such procedures include clinical trials, new drug reviews, and listing requirements with the Federal Canadian Government as well as Provincial Authorities.

Some argue that Canada may lose out on the next wave of lucrative pharmaceutical investments unless it develops a patent system that is on par with the U.S Patent System. Some suggest "restoring patent life" to offset the regulator delays that occur when introducing new pharmaceutical drugs to market. But, this view has been met with some criticism claiming that adding to the patent life of brand names drugs has the potential to raise generic drug prices for consumers and insurers alike.

That said, if Canada wants to encourage multinational drug companies to do business there, improving its intellectual property protections will definitely bring in more companies willing to invest their money and time in Canada.

How Long do Drug Patents Last in the UK?

UK Drug patents last for 20 years from the date of filing the patent application. To obtain a patent in the UK, you need to file your patent application at the UK Intellectual Property Office. Source

The UK Intellectual Property Office offers similar patent protection to inventors as is afforded by the United States Patent and Trademark Office.

How Long do Drug Patents Last in Australia?

In Australia, pharmaceutical drug patents last up to 25 years from the filing date of your application. The Australian Intellectual Property Office requires inventions to be new, non-obvious, and different from existing technology. Depending on the circumstances surrounding your invention and the protection you are seeking, examination of your patent may take between six months to several years. Source

Why is Drug Patent Life Important?

Drug patent life is important because the longer a patent on a specific drug, the longer time a manufacturer has market exclusivity. What this means is that a drug maker can sell the brand name drug for as long as possible to recoup its investment and profit from selling the drug.

If drug manufactures don't have a long enough drug patent term, they will have spent enormous sums of money developing and testing their drug to get it approved and by the time they get to market, they wouldn't have enough time to recoup their investment and profit from the hard work it took them to develop the drug.

Drugs makes a lot of money once they hit the market and millions of people depend on them. When the patent life on a brand name drug expires, generic manufacturers step in, engineer a new drug with a similar chemical composition and sell it at a much reduced cost. Once this happens, most people stop purchasing the brand name drug and opt to purchase the cheaper, generic alternative.

Although some may disagree with this statement, but protecting brand name drugs is important because it encourages large companies to invest their time and money in developing new drugs to treat the ever-growing number of ailments that we suffer from. Without decent patent protection, drug makers won't be incentivised to invest their time and money in coming up with new cures.

When a company owns a patent for a drug, the drug is sold under a brand name. While the patent is in effect, doctors prescribe the brand name drug. This gives the brand name drug company a monopoly over the drug until the patent period ends. The long brand name drug companies have patents over the brand name drug, the longer before other companies can make generic versions to make them more affordable.

Some argue that the current patent term stifles lowering drug prices and making them more accessible to the masses, we disagree because if the brand name drug company wouldn't have had to reason to develop and market the new drug, there wouldn't be a cure at all. If you disagree, please feel free to leave us a comment on why you disagree.

Examples of Brand Name Drug Patents that Have Recently Expired

Here are some blockbuster brand name drugs that have patents that expired in the past year:

  • Lyrica. In December of 2018 the patent on Lyrica was set to expire. Lyrica was developed by Pfizer to treat to for nerve and muscle pain. The drug made Pfizer $3.45 billion dollars in sales. Last time we checked, Pfizer was working on extending the patent and in November of 2018, it was able to extend the patent's life to June 30th, 2019.
  • Cialis. Cialis was approved in 2003 to treat erectile dysfunction. Cialis has been a major seller for Eli Lilly since its approval, however Cialis entered into a settlement with generic drug manufacturers to have its patent expire in September of 2018.
  • Xolair. Novartis and Roche developed Xolair to treat allergic asthma and chronic idiopathic urtcarial. Their patent expired in 2018 but only after raking in hefty sales.
  • Neulasta. Amgen developed Neulasta, which helps the body make more white blood cells after receiving cancer medication. The drug brought in $4 billion in sales for Amgen in 2014. Neulasta's drug patent expired in 2015.
  • Zytiga. Johnson & Johnson lost its patent on Zytiga it's profitable prostate cancer therapy medication in 2018, opening the door for viable generics to compete.

What Factors Reduce Drug Patent Life?

The main factor that reduces drug patent life is that the 20 year patent clock starts ticking as soon as drug is invented and a patent application is filed with the USPTO. This means that pharma manufacturers lose time while they are seeking FDA approval for their drug while not being able to sell it for 7 to 10 years until they get approval.

This means that 10 out of they 20 years are lost while the FDA approves the drug, leaving 10 years for the drug makers to profit from their product. Some have considered legislation which would give drug makers 15 years to sell their drug from the date the drug becomes available in the market. That said, this is quite complicated and a lot of policy considerations have to be taken into account.

Currently, drug companies do whatever they can to extend the patent life of their drug to maximize their profits. Lets explore whether patent term restoration addresses this problem.

Drug Patent Term Restoration

To address the patent life that is lost while the FDA approves human drugs, Congress allowed patent term restoration. PTR (Patent Term Restoration) seeks to compensate drug makers for the time lost while the FDA approves their medication.

PTR allows drug makers to extend their drug's life for a maximum of 5 years regardless of how many years the company lost while waiting for FDA approval. There is a second restriction on patent term restoration which limits the patent life of a drug to 14 years from the date that the FDA approves the drug.

Although some limitations apply to patent term restoration, the added patent life can make some pharmaceutical manufacturers billions of dollars, especially if they are the only ones with a treatment for a specific illness or disease.

We will cover more ways that are used by brand name drug makers to extend the patent life of their blockbuster drugs below.

How do Brand Name Drug Companies Extend the Life of their Drug Patents?

  • Pediatric Exclusivity. Many brand name drug manufacturers are extending the terms of their patents by claiming pediatric exclusivity. They do so by seeking to test a drug on children and by doing so, the USPTO grants them an additional 6 months of patent life. Companies can do this two times using the same drug. Now, you're probably saying to yourself that six months is too short, but in some cases, this could literally help a drug maker make tens if not hundreds of millions of dollars, depending on the popularity of the drug.
  • Different Versions. A trick that many drug makers use to extend the term life of their patent is by combining medical components in a different way. For example, Adderall XR was reformulated from the already patented Adderall by creating an extended release version that extends the drug's period of effectiveness. Other manufactures have sough administering the drug in a different way. For example, Limitrex a well-known migraine drug originally sold in tablet form was reformulated for intranasal delivery, this extended the patent life of the drug.
  • New Use Rule. The FDA allows patent extensions of three years if a drug manufacturer finds a "new use" for its drug. What this basically means is that if a manufacturer discover that its drug can treat a different illness or achieve a different remedy, they can increase the patent for an additional three years on the basis of the drug's new purpose.
  • Chemical Adjustment. Drug makers often make adjustments to the amount of isomers in a medication. By doing this, they are essentially changing the drug and they can patent the the drug as a completely "new drug," thereby extending its patent life. This situation occurs when an isomer doesn't make a drug more effective, allowing manufacturers to remove it and "purify" the drug, making it something that's completely new and therefore patent-able.
  • Combining Medications. Some pharmaceutical makers have been successful in extending the patent life of some medication by combining two drugs into one. At times, they have found the new combination to be more effective than the original drug. These fusing of two drugs is common and the newly formed drug gets a new patent to extend its life. One example of this is when Pfizer combined its patented drugs Norvasc and Lipitor into a new medication and had a patent issued for the new combination called "Caduet."
  • Rare Disease Drugs. The FDA offers a 7 year extension of patent life for drugs that treat rare diseases. The FDA defines rare disease as those affecting fewer than 200,000 people in the United States. The FDA offers this extension to encourage drug companies to develop treatments for these diseases. Without extending the patent life, companies would be discouraged from spending their time and money to develop a medication that won't be used by many people, so to make up for that, the FDA gives them an additional 7 years of patent life.

Drug Patent Length vs Market Exclusivity

Now that we've covered the lengths of drug patents and how some manufacturers extend them, lets explore market exclusivity. If you're not part of the pharmaceutical industry, then you've probably never heard of market exclusivity, so lets explore what is market exclusivity for drugs?

Explaining the difference between patents and market exclusivity will help you understand market exclusivity.

By now, you should know that patents are granted by the USPTO and protect the chemical makeup and claims of a drug. Exclusivity is a right granted by the FDA once a drug is approved and this right grants the drug maker market exclusivity which blocks the approval of any generic drugs until the brand name manufacturers exclusivity clock runs out. Source

The FDA established market exclusivity to rewards new drug innovation and to curb generic drug makers from profiting off the success of those who contributed their time and money to develop a new drug.

Another major difference between patents and market exclusivity is that a drug patent can expire before the FDA approves a drug whereas market exclusivity is granted upon the approval of a drug by the FDA.

How Long Does a Patent Last?

This article dove deep into how long do patents last and how drug manufacturers increase the length of their patents. We also covered how long drug patents last in the U.S and other countries such as Canada, UK, and Australia. We also discussed the importance of drug patents as well as how drug manufacturers increase the life of their patents. If you have any questions or comments please feel free to leave them in the comments section below.


Why are patents important?

Why Are Patents Important? (ANSWERED)

Getting a patent isn't easy and it's also expensive, so why do so many people patent their inventions and processes? This article will discuss the importance of patents, their benefits, their advantages and disadvantages, as well as the pros and cons of patents.

Patents are important for a variety of reasons that we will discuss below, but before we do that lets explain what is a patent? A patent is an exclusive right to use an invention or process that is granted by the Government to an inventor. Patents allow the inventor to exclude others from making, using, or selling their invention in the country where the patent was issued.

Patents are usually issued to actual persons and not to companies, but it's pretty common to find inventors assigning (transferring) their interest in their patent to their employer.

Patents typically protect inventions, products, processes, or designs that meet certain requirements of novelty and utility. Modernly, patents in the United States last for 20 years from the filing date of the patent. In the U.S, patent applications are filed at the USPTO (United States Patent & Trademark Office).

Why Are Patents Important? (Advantages of Patents)

Patents are important because they help protect your invention by giving you the exclusive right to stop others from copying, manufacturing, selling, or importing your invention without your permission.

Patents are beneficial in many other ways, here are a few more reasons why patenting your invention or process is important:

  • Protection. Patents give you the ability to protect your invention starting from the issue date of your patent. No one can manufacture, sell, or import your patented invention without first getting your consent to do so
  • Exclusivity. Patents allow you to use your patented invention or process and to profit from it exclusively on your own for 20 years from the date you filed for your patent
  • Priority. Being the first to patent an invention gives the patentee superior rights over subsequent patents. Therefore, if you're someone who's seeking capital for an idea, it's smart to patent your invention before disclosing the idea to potential investors and licensees to keep them from stealing your patent idea and patenting it before you even get a chance. If you're the first to patent the idea, you will be the sole owner of that patent
  • Profit. Patents allow you to license your patents for other to use for an agreed up royalty or fee. This is a huge advantage for people who wants to license or sell their patent rights to companies or individuals for a profit. Charging a royalty for the use of your patent (lets say 5%) can be a better options for inventors who do not have the resources and expenses to bring the idea or patented invention to market themselves
  • Innovation. Patents encourage innovation because people want to make money and what better way to do so than inventing something, protecting the invention, and later using it to earn some money. If people believe that their inventions would not be protected, they might not invent in the first place
  • Limit the Competition. Patenting your idea or design helps businesses limit competition. Just imagine yourself patenting an invention that is sold by both you can your competitor. By patenting the product, you will gain the right to ask your competitor to cease the production and sale of their competing product thereby garnering a larger market share by weeding out your competition
  • Investors. Having a patent or portfolio of patents is extremely valuable for small businesses especially when you consider that potential investors may invest in your company simply for the rights to use a particular patent or set of patents
  • Credibility. Having patents provides increased credibility to both the inventor and their company

Disadvantages of Patents (Cons of Patents)

Patents can be very beneficial, however here are some of the disadvantages and cons of applying for a patent:

  • Disclosing Information. By filing your patent application, you're making specific technical information about your patent publicly available. Keeping some details about your invention secret may be beneficial to stay ahead of your competitors because competitors may look for a way to invent around your patent
  • Time Consuming. Applying for and getting a patent is a very time consuming and lengthy process that often takes anywhere between 2 to 4 years for the government to grant/issue your patent. In our fast-paced world, waiting around for 4 years is a lot of time
  • Costly. It can be quite costly whether your patent is successful or not. You'll have to pay applications fees, searches for existing patents, and attorney's fees which contribute to quite the hefty bill. So even if your patent is unsuccessful, you could be left with bills that range from $2,000 to $5,000 depending on the complexity of your patent, the more complex the invention, the greater the cost
  • Complex. One of the arguments that we've heard time and time against is that the process of patenting an item is complex and usually requires the help of an attorney
  • Maintenance Fees. You need to pay periodic maintenance fees the last throughout the life of your patent. There are maintenance fees that must be paid three times throughout the life of your patent. If you fail to pay these fees, you might lose your rights and protections under US Patent law
  • Enforcement. Once you've filed your patent and your patent issues, you can't just sit back and expect the USPTO (Patent Office) to keep all those infringing upon your patent from selling your product, you're going to have proactively monitor the market, look for people infringing on your patent, and find an attorney who will deal with the person infringing upon your patent. Having an attorney take legal action against an infringer is an expensive process
  • Limited Protection. Patents are only good for the country in which they were issued. For example, if you received a patent for invention X in the U.S and someone in China copies your invention, you're out of luck because your patent is only good in the United States. If you have an invention that you want to protect worldwide, you'll have to patent your invention or idea in each country to gain patent protection
  • Lawsuits. If an inventor tries to patent his idea, competitors may file lawsuits in order to invalidate your patent, this is especially true if they believe that your patent can benefit them

All that we ask is that you weight the advantages and disadvantages of patents carefully before you decide that you want to patent your idea or invention. Making an informed decision will save you money, time, and heart ache in the long run.

Types of Patents

The two main types of patents that are issued by the USPTO (United States Patent and Trademark Office) are utility patents and design patents.

Type #1: Utility Patent

The U.S Code defines utility patents as "any news and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Basically what this means is that utility patents protect new machines, systems, and other useful inventions.

Utility patents are among the most valuable forms of intellectual property that a person can hold, but the problem is that they're costly. Depending on the complexity of your invention, patent cost can be huge for most people. Simple inventions can cost a few thousand dollars while more complex inventions can easily send the cost skyrocketing into the tends of thousands of dollars.

Utility Patent Summary
  • Protect how an invention operates or works
  • Lasts 20 years from the date you filed your patent
  • Covers thing like: a process, machine, manufacture, improvement of an existing invention
  • Most commonly issued patent by the USPTO (Approximately 90% of patents are utility patents)
  • Utility patents must serve a practical purpose or use

Type #2: Design Patent

According to the U.S Code, a design patent cover "any new, original and ornamental design for an article of manufacture may obtain a patent therefore." This means that design patents protect the ornamental design of a functional item. This covers things like the design of jewelry, Coca Cola Bottle, furniture, and computer icons.

Having a design patent over an ornamental item gives the patentee (patent holder) the power to exclude others from using a design that is substantially similar to their patented design.

Design Patents Summary
  • Utility patents protect an item's visual aesthetic or look (something that's purely decorative)
  • The design must original to an ornament or product
  • Last up to 20 years from your patent filing date
  • They cannot be renewed once they expire
  • Design patents can be used if the design has been published or sold before the person or company applied for the patent

Pros and Cons of Patents

Inventors must weigh the pros and cons of patents before submitting a patent application. We listed the pros and cons of patenting your invention in this post in the paragraphs above. One of the biggest drawbacks of patenting your invention is the complex and costly patenting process. Many people who do not seek patents don't do so because they don't find support for those who are close to them, they can't afford the high costs of patenting in the U.S, or they don't fully understanding what a patent is.

Understanding the pros and cons of patenting your invention will help you make a more informed decision as to whether to patent your invention or not.

Alternatives to Patents

Some people do not wish to profit from their discoveries and inventions so instead of patenting their invention, some patentees (patent holders) either keep their invention secret or they simple publish it into the public domain.

Some seek to publish their patents because they want to contribute to society while others do it simply to avoid the fees associated with patenting their invention. Once an inventions is published, a subsequent inventor cannot patent the idea or invention any more because it's public and it's not new anymore.

The first obvious drawback of publicly publishing your invention is that you cannot patent it anymore. Also, once you've published it your competitors may patent improvements to your original patent, leaving you without a remedy.

So, if you're someone who does not want competitors to use his invention, publishing your patent is the wrong way to go about things, keeping it a secret is your safest bet. That said, if you keep your invention a secret, you risk competitors developing the same invention and patenting it before you do, so that's something just to keep in mind.

Are Patents Worth It?

Patents are worth it and are valuable for inventors who want to control how their invention is made, how it's used, and to prevent anyone else from profiting from their idea.

That said, there are some disadvantages associated with patenting your idea or invention and we've listed them above. Some of the drawbacks of patenting an invention include cost, time, and the enforcement that comes along with your patent.

Without having a patent, you won't have ownership or control over your invention. This means that you won't be able to sell or license your intellectual property to anyone because you don't have exclusive rights to it. Also, anyone who hears about your idea can imitate it and not having a patent over it makes things much easier.

Why Are Patents Important Conclusion

Patents are important for the variety of reasons that we mentioned throughout this article. We hope this article covered the advantages and disadvantages of patents as well as their pros and cons effectively. If you have any questions or comments about patents and their important, please feel free to leave them in the comments section below.


How long do patents in the us last?

How Long Do Patents Last?

The amount of time that patents last in the United States has changed a few times over the course of our history. The U.S Constitution provides that inventors should have their inventions and discoveries protected "for limited times," however it doesn't give us an exact number of years. This article will introduce you to the different types of patents out there as well as the length of time that each type of patent lasts. We will cover how long utility patents last as well as design patents.

The first patents in the U.S lasted 14 years from the date that the patent office issued the patent and this was based on the patent term in England. In 1861 the Government increased the patent term from 14 years to 17 years by signing into law the Patent Act of 1861.

U.S Patent law underwent major changes that became effective on or after June 8, 1995. The changes that were made to the U.S patent system made it on par with the patent systems of other countries.

How Long Does a Patent Last?

If you were wondering: how long do patents last for? Patents that were filed on or after June 8, 1995, expire 20 years after the U.S filing date of your patent. For any patents that were in force on June 8, 1995 or for patent applications pending on that date, the patent will expire either 20 years from the filing date or 17 years after the patent was issued, whichever is later.

If you've ever asked an attorney "how long do patents last?" They will often answer by speaking in shorthand of the 20 year patent term, however this isn't entirely correct. The term of a patent (Enforcability of a Patent) does not start until the patent is issued (i.e., the "issue date" of the patent) by the USPTO.

Just remember that patents get their power from a statute, so if you have a patent application that is still pending, you cannot sue anyone for patent infringement until the USPTO issues your patent because until the issue date, there is no patent in existence to even enforce.

What is a Patent?

Patents are granted by the U.S Government and they give the patent holder the exclusive right to use a certain invention, useful process, machine, consumer article, or an improvement on such items. Source

If the USPTO grants a patent, the patent holder (known as a patentee) has the legal right to exclude others from using their inventions in the United States.

Patenting a certain process or invention does not require the patent holder to commercialize their own invention, it simply allows them to restrict others from making, using, or selling their invention.

Patent holders will be able to restrict others from using or selling their patents as long as the patent holders pays the maintenance fees to the USPTO. So long as the fees are paid, the patent protection will remain in effect until the patent term ends. Once a patent expires, it becomes in the public domain, meaning that anyone can use the patent and profit from its use without the patent owner's permission.

When do Patents Expire?

Patents expire 20 years from the earliest effective U.S filing date (date that you first filed the patent). So the amount of time that your patent is pending in the USPTO (U.S Patent & Trademark Office) is subtracted from from the the 20 years that you can enforce your patent for.

Here is a quick example of when patents expire. John files his patent on January 1, 2000 and the patent is pending and is not issued until January 1, 2002.

  • John's patent was pending for 2 years
  • During the 2 years while the patent was pending, John could not have enforced his patent by suing anyone for patent infringement because there is no patent yet in existence to base the lawsuit on
  • John's patent will expire 20 years from the January 1st filing date
  • The application pendency period from January 1st, 2000 to January 1st, 2002 (2 years) is subtracted from 20 year patent term. So, the patent term is in reality 18 years
  • Once the patent is issued, the patent holder can enforce his patent by suing anyone who infringes upon his patent

We hope this section was able to answer how long patent protections lasts.

Types of Patents | Know Your Patent

U.S Law provides protection for different kinds of patents. Different types of patents have different durations. Approximately 90% of patents in the United States are utility patents. Utility patents last for 20 years from the earliest filing date. Design patents, on the other hand, are only valid for 15 years from the date the USPTO issues or grants the patent.

Utility patents protect inventions, processes, and machines. Utility patents are the most common type of patent issued by the patent office, accounting for more than 90% of all filed for patents.

Utility patents typically claim and describe the functional aspects of an invention. They protect a variety of inventions that include consumer products, machinery, industrial parts, toys, and pharmaceutical drugs.

What is a Provisional Patent Application & How Does it Affect the Patent Term?

Some inventors choose to file provisional patent applications to get the earliest possible priority date for their invention. So, why do inventors rush to file provisional patent applications? They do so because the first to file a patent for an invention is able to claim invention priority. However, remember that provision patents only protect the date of an invention because they are not examined for patentability and do not become a patent unless the person seeking the patent files for a non-provisional patent within 12 months.

If you filed a provisional patent application before filing your utility patent application, your patent term starts on the earliest filing date, which is the date of your provisional patent application. So, you might be asking yourself what is a provisional patent application? Provisional patent applications are a cheaper way for an inventor to lock in a priority date prior to filing a regular, non-provisional patent application.

That said, provisional patent applications do not become patents. For a provisional patent application to become a patent, the inventors will have to file a nonprovisional patent application within 12 months of filing the provisional patent application with the patent office.

Some people use provisional patent applications because it gives them an extra year to perfect their invention, run experiments, find investors, or to perfect their prototype.

That said, this extra year comes at a cost because the patent term starts on your earliest filing date and by filing your provisional patent application, your patent term starts when you file your provisional application with the USPTO. So, if you're calculating how long your patent lasts, be sure that you're calculating from the correct filing date.

If you are looking to file a provisional patent, here is the provisional patent application form, you can find it here.

What Does Patent Pending Mean? | The Effect of Having a Patent Pending

Patent Pending is a legal designation that's given to inventions or processes once a patent application for the invention or process has been filed. The patent pending status remains until patent is issued or abandoned.

Having a patent pending comes with a short patent life. Your patent term starts from the earliest filing date, so it will go for 20 years from the date you file your provisional patent application or from the filing date of your patent, whichever is earlier. You first filing date is also known as your priority date.

If you've already filed your patent, just remember that you won't be able to enforce your patent until the patent offices issues you a patent for your invention.

If the patent office delays your patent for too long, you may be eligible to file a patent term extension to extend the patent term of your patent. Just note that to be eligible for such an extension, the patent office must be at fault for causing a substantial delay in processing your patent.

Quick Summary of Patent Terms by Patent Type

  • Utility Patents filed on or after June 8th, 1995 last for 20 years from the application filing date
  • Utility Patents filed before June 8th, 1995 last 17 years from the issue date or 20 years from the application filing date (whichever is longer)
  • Design Patents last 20 years from the application filing date
  • Plant Patents last 20 years from the application filing date
  • Design Patents filed on or after May 13, 2015 last 15 years from the date the patent is issued/granted

Patent Term Extensions

The USPTO is experiencing a major backlog of pending patent applications. As a result of this backlog, the patent office is adjusting the patent term for periods longer than 20 years. What does this mean for you? If you've filed a patent and your patent took too long to issue, the patent office may grant you an extension to compensate for the time lost between when you filed your patent application and when it was actually issued.

Keep Your Invention Confidential

Many people in the United States are still interested in inventing new things. Many entrepreneurs want to invent something and make tons of money from their invention. The U.S patent system offers them protection that can increase the market value of their patented invention.

That said, be careful with whom you share your invention because there are a lot of start-ups and people who prey on entrepreneurs who have novel inventions that may be worth a lot of money. So, if you're an inventor you are within your rights to be as cautious as possible when looking for a company to prototype or manufacture your invention. The last thing you want is someone copying your idea and selling it before you can even bring it to market.

There are a lot of inventors who acquire patents and despise the idea of taking their invention or prototype a shady invention factory they found on the web. Many "Invention Development" companies are either scams on aggressive marketers that try to get you to pay them upfront for their services and to give them a huge share of your sales. Be aware of such companies and scams. The best thing you can do is look for a reputable attorney who is well-suited to help you market your patent. The USPTO has a resource page dedicated to helping you avoid the most common invention promotion scams. Source

If you have invention that is unique and has commercial viability, contact a patent attorney who can evaluate your invention and protect your rights.

Patent Length Criticisms

We have heard many people who are not familiar with the U.S Patent System criticize patents as lasting too long. We disagree with system and we'll tell you why. When everything is considered, patents only last for a few fleeting moment.

Many lawyers throw out the phrase that patents last for 20 years and while that is partially true, there is a lot of time lost from the moment you file your patent application to the time when the patent is actually issued. In some cases, patents take several years to issue, so in reality you're getting less than 20 years of protection. This is so because you don't get exclusive rights in your patent until its issued. For example, TiVos patent was issued after more than 10 years passed after its filing. We are not saying that every patent will experience this length of delay, just keep in mind that patent holders lose a portion of their patent term while they're waiting for their patent to issue.

Not only do patents not last long enough, if you have a utility patent and you miss a maintenance payment, you could lose your patent and it will become part of the public domain where anyone can use it and make money from it. Here are some of the payment that you must make to ensure that your patent is good for its entire patent term:

  • First Maintenance Payment - Fee/$1,600 - Small Entity/$800 - Micro Entity/$400
  • Second Maintenance Payment - Fee/$3,600 - Small Entity/$1,800 - Micro Entity/$900
  • Third Maintenance Payment - Fee/$7,400 - Small Entity/$3,700 - Micro Entity/$1,850

Source

Patent Length Conclusion

We hope you found this article on patent length helpful. We covered how long the different types of patents last. We covered how long do utility patents last as well as how long do design patents last. We briefly touched on plant patent lengths. If you have any questions about how long do patents last, please feel free to leave it in the comments section below and we will do our best to answer your patent length related question.