Can You Patent a Process?
If you're an inventor who has developed a process for making something, you may have considered patenting it to prevent others from copying your process and profiting from your hard work. So, can you patent a process? We will discuss the answer to this question in much detail below.
Can You Patent a Process?
Yes, you can patent a process. Patenting a process involves obtaining a utility patent to protect a series of steps taken to manufacture a physical object. That said, to be able to patent a process, your process must have patentable subject matter, must be new and unique, must be useful, and must be nonobvious. We will dive into each one of these requirements below. If you're successful in patenting your process, you will be able to stop others from using, making, and selling the process for 20 years from the date you filed your utility patent application.
For clarity, a process patent is one that is granted to a person who has created a new and unique process that changes the characteristics of physical materials. Patenting a process is very important because if another person or business patents the process that you use to make something, you will no longer be able to use the process as you will be infringing on the patent holder's patented process.
As such, if you rely on a process to manufacture something, and the process is new and unique, you should explore the option of patenting it to continue using the process, as well as stopping others from using the same or similar process.
How Can You Patent a Process?
To patent a process, you will need to apply for a utility patent. Utility patents are used to protect new inventions, processes, machines, and articles of manufacture. To qualify for a utility patent, the process you want to patent must (1) have a patentable subject matter, (2) be novel (new), (3) nonobvious, and be useful (have utility).
- Patentable Subject Matter - For you to patent a process, the process must have a patentable subject matter, and the process for manufacturing physical objects falls under the umbrella of patentable subject matter for which the USPTO provides patent protection. That said, if you patent a process, you're only patenting the process for making an object and not the object produced by the process. To be able to patent your process, your process must satisfy the remaining requirements.
- Novelty - The process that you want to patent must be novel, meaning the process you want to patent is different from all other processes that have been publicly disclosed or patented. If anyone else has publicly disclosed or patent a process that's the same as or similar to yours, you will not be able to patent your process. Also, to patent your process, you must patent it within 12 months of disclosing the process to the public. Note: Keeping the process secret and using it, does not constitute public disclosure of the process. However, if you tell the public about your process, it will be deemed to have been disclosed and you have exactly 1 yeat during which to file a patent application to protect it.
- Nonobviousness - To patent your process, the process must be non-obvious, that is, the process must not be obvious to a person skilled in the field of the process you're trying to patent. The process must demonstrate something that's new. You will be able to satisfy this requirement if you can show that your process is significantly different from all other processes that have been publicly disclosed or patented in the past. For example, if your process solves a problem that no other process has solved in the past, this is strong evidence that your process is indeed nonobvious and should therefore qualify for a utility patent.
- Utility - To patent your process, the final task you have is to establish the usefulness of your process. The usefulness requirement can be established by showing that your process offers some utility, meaning it offers some identifiable benefit to society. For most inventions and processes, the utility requirement is easily satisfied so long as you include a statement that explains the utility of your invention in your utility patent application.
If you're deciding whether to patent your process, you should consult with a licensed patent attorney in your jurisdiction. A patent attorney will give you a better idea as to whether you have a process that qualifies for a patent. If you can't afford a patent attorney, you should consider searching for an experienced patent agent. Patent agents are just as qualified as patent attorneys to assist inventors with patenting their inventions and processes.
Preparing a Patent Application to Patent Your Process
Once you or your attorney has determined that your process is eligible for a patent, you must conduct a prior art search and prepare a utility patent application to patent your invention. Other than inventing your process, preparing a utility patent application is the most time-consuming process that you will need to complete to patent your process.
If you do not have experience preparing a patent application, you should seriously consider hiring an experience patent attorney or patent agent to assist you with preparing and filing your patent application. How well your patent application is prepared will determine the patent protection offered by your utility patent.
This is so because a patent application is similar to a deed for a parcel of land in that the patent application sets forth the scope of protection for your process just as a deed sets forth the boundaries of a piece of land. Therefore, hiring an experience attorney who knows how to draft patent application is essential to obtaining the strongest patent protection.
A patent application must include the following sections:
- Title of your invention
- Cross-references to relevant patent applications
- A statement explaining any Federally sponsored R&D
- Background of the invention
- Summary of the invention
- Invention drawings
- Brief description of the drawings
- Invention claims
- Abstract of the invention
In the event that you cannot afford to hire a patent attorney, you should consider hiring a patent agent. Patent agents are just as qualified as patent attorneys to assist inventors with patenting their inventions. Hiring a patent attorney or patent agent can save you a lot of money and headache in the long run.
How Long Does it Take to Patent a Process?
According to data from the USPTO, it currently takes the USPTO 24 months to either grant or deny a utility patent application. That said, if you want to expedite the processing of your utility patent application, you should consider using the USPTO's Track One Service. Track One promises inventors to have a decision (grant or deny) within as little as 12 months. Some inventors who have used the services have reported obtaining a decision on their patent application within as little as 6 months.
Why Is It Important For You to Patent Your Process?
Patenting your process is very important for you because as a patent holder over your process, you will be able to stop everyone else from using, making, and selling your process for 20 years from the date you filed your patent application.
During your 20 year patent term, you will be able to stop anyone else from using, making, and selling your process within the United States.
If you find someone else using the same or similar process, you can bring a patent infringement lawsuit against them in Federal Court. If your lawsuit is successful, you will obtain a court order, ordering the infringing party to immediately stop using your patented process.
Alternative to Patenting Your Process
If you do not want to patent your process, there are some alternative forms of intellectual property protection that you can use to protect your process. Patenting your invention involves publicly disclosing your process in exchange for a patent, which allows you to prohibit others from using, making, and selling your invention.
Trade secret protection, on the other hand, allows you to protect your process so long as you keep your process secret. Keeping your process secret involves taking reasonable measures to prevent the disclosure of your process. To qualify for trade secret protection, you do not need to apply for any form of IP.
To protect your process as a trade secret, you should only share your process with your employees, and you should have your employees sign an NDA (non-dsiclosure agreement), prohibiting them from disclosing your process and how it works.
In the event that an employee violates his or her NDA, you can bring a lawsuit against them for breach of the NDA. Typically, most employees will not violate their NDA because of the financial penalties that they will face as a result of their breach of the agreement.
Patent Rebel Frequently Asked Questions (FAQs)
1. Can you patent a process in the US?
Yes, in the United States you can get a utility patent to protect your process so long as the process meets the patenting requirements set forth by the USPTO.
2. How do you patent a process?
You can patent a process by preparing a patent application, filing it with the USPTO, and paying the patenting fees to the USPTO. That said, if you do not have experience preparing utility patent applications, you should consider hiring an attorney to assist you with preparing, filing, and prosecuting your patent application.
3. How long does a process patent last?
To patent a process, you need a utility patent, utility patents last for 20 years from the date that you submit a regular non-provisional patent application.
4. How long does it take to get a process patent?
To patent a process, you will need to apply for a utility patent application. Utility patents take on average of 24 months to either be granted or denied a patent. You have the option of expediting your patent application by applying for Track One.
Utility Patent
Whether your an inventor seeking to patent your invention using a utility patent or you're just wondering what a utility patent is, you've come to the right place as we will discuss everything there is to know about a utility patent. So, what is a utility patent? And what is the difference between a utility patent vs a design patent? We will also discuss the cost of a utility patent, as well as give you an example of a utility patent.
What is a Utility Patent?
A utility patent is defined as a form of intellectual property (IP) protection that protects new inventions, processes, machines, compositions of matter, or articles of manufacture. Said differently, utility patents protect inventions that perform a new and useful function. Utility patents are the most applied for type of patent, making up more than 92% of all applied for patents.
Inventors want to protect their inventions using utility patents because utility patents allow them to control who uses, makes, sells, and imports their patented invention to the United States for a limited period of time. For utility patents, this limited period of time is 20 years.
While a utility patent is active and its grant state, only the patent holder can use, make, and sell the patented invention, anyone else who wants to make any use of the patented invention must first obtain the patent holder's express permission to do so.
Now that you know that a utility patent is a powerful form of IP protection, you should know that obtaining one is not easy. To obtain a utility patent, an inventor must prepare, file, and prosecute a utility patent application to obtain a patent.
Preparing a utility patent application alone is very costly and time-consuming. Even after a utility patent application has been prepared and filed with the USPTO, it takes the patent office, on average, 24 months to process and either grant or deny a patent application.
How Does a Utility Patent Work?
A utility patent works by vesting IP rights in the hand of a patent holder. Once an inventor patents his invention and becomes a patent holder, an inventor can stop others from using, making, offering to sell, selling, and importing his patented invention to the United States for a limited period of time (20 years for utility patents).
During the 20-year patent term/patent life, an inventor may become the only person to use, manufacture, and sell the patented invention. Also, a patent holder can choose to license the use and manufacturing of his patented invention to third parties in exchange for an agreed-upon fee.
How to Get a Utility Patent?
For an inventor to get or obtain a utility patent, an inventor must first conduct a prior art search to determine that no one else has patented the invention he wants to patent. A prior art search should only be conducted by an experienced individual, such as a patent attorney. This is so because a prior art search is a complicated process that requires a trained and experienced individual to properly perform a prior art search.
After conducting a prior art search, an inventor should also hire an attorney to prepare a patent application. A patent application defines the invention that an inventor wants to protect.
As such, taking the time to prepare a strong patent application is of the utmost importance because the application will determine the quality of the resulting patent.
Although the USPTO allows inventors to prepare their own patent application without hiring an attorney, they recommend that inventors hire an attorney to assist them with its preparation.
After preparing a patent application, an applicant files the application with the patent office and waits for a patent examiner to begin examining his application.
If the patent examiner finds an application to be complete, complies with the patenting requirements, and is free of errors, an application will be granted.
The moment the patent office grants a patent application, a patent holder will be able to exercise his rights under the patent. Prior to the patent office granting a patent application, an applicant will not be able to enforce patent rights because he will not have any rights to enforce until the patent office grants his application.
How Long Does it Take to Get a Utility Patent?
According to data from the USPTO, it currently takes 24 months for the patent office to process a patent application, meaning that the patent office will either grant or deny a patent application within 24 months of an inventor filing his non-provisional patent application with the USPTO.
If an inventor is in a rush to patent his invention, the patent office offers inventors the ability to expedite their patent application by using a service known as Track One. Track One promises to process a patent application within 12 months, which cuts down the processing time in half.
That said, some applicants who have used the USPTO's Track One service have reported being able to patent their invention in as little as six months. So, depending on your specific case, you may be able to patent your invention in less than 12 months.
How Long Does a Utility Patent Last?
In the United States, a utility patent lasts for 20 years from the date an inventor files a regular, nonprovisional patent application with the USPTO. Said differently, the patent term or patent life of a utility patent is 20 years measured from the date an inventor filed a utility patent application with the patent office.
That said, to keep a utility patent in its active/grant/issued state, a patent holder must pay three periodic maintenance fees throughout the life of a utility patent. These maintenance fees must be paid at 3.5, 7.5, and 11.5 years. Failure to pay any of the maintenance fees on time will lead a utility patent to expire prematurely before the patent term has ended.
Hiring an Attorney to Obtain a Utility Patent
The USPTO does not require inventors to be represented by an attorney to patent their invention, the patent office is even required to offer assistance to inventors seeking to patent their invention. However, the patent office highly recommends that inventors hire an attorney to patent their invention.
Although hiring an attorney is not required for an inventor to patent his invention, Patent Rebel highly recommends that inventors hire an attorney to assist them with preparing and filing a patent application because US patent law is quite complex and making mistakes can cost an inventor a ton of money to fix, down the road. As such, it's a good idea to hire an attorney to avoid costly mistakes down the road.
If you're an inventor and you do not have enough money to hire an attorney, you should explore the option of hiring a patent agent. Patent agents, like patent attorneys, are qualified and licensed by the USPTO to assist inventors with patenting their invention.
Patent agents are licensed to assist inventors with conducting a prior art search, preparing their patent application, filing it with the patent office, and prosecuting it until the patent office grants the patent application.
How Much Does a Utility Patent Cost?
A utility patent for a simple and straightforward invention can cost between $5,000 and $7,000, with more complex inventions costing $15,000+ to patent. The cost really depends on a few factors, such as the complexity of your invention, the experience of your patent attorney, the help you've offered your attorney, and the geographical location of your attorney because attornies in different parts of the U.S charge different rates for assisting inventors with the patenting process.
In addition to paying an attorney's fees, an inventor should factor in the cost of fees that must be paid to the USPTO. The patent office charges the following fees:
- Filing Fee - $150
- Patent Search Fee - $330
- Patent Examination Fee - $380
- Patent Issue Fee - $500
- Patent Maintenance Fee #1 - $800
- Patent Maintenance Fee #2 - $1,800
- Patent Maintenance Fee #3 - $3,700
Utility Patent vs Design Patent
What Do They Protect?
A utility patent protects the functional aspects of an invention. Said differently, it protects how an invention works or achieves its purpose and how it's used by the end-user.
Design patents, on the other hand, protect the aesthetics of an invention. Said differently, design patents protect the appearance of an invention or how an invention looks.
Design patents cannot be used to protect the functional aspects of an invention.
If an inventor wants to protect how his invention works, he should apply for a utility patent. If he wants to protect the appearance of his invention, he should apply for a design patent.
In the event that an inventor wants to protect both the appearance and function of his invention, he must apply for both a utility patent and use a separate application to apply for a design patent.
Both the design and utility cannot be patented using one application. One utility patent application should be filed, along with a design patent application because each application will protect something different.
Patent Term
A utility patent lasts for 20 years from the date an inventor files what's known as a nonprovisional utility patent application with the USPTO. A design patent, on the other hand, lasts for 15 years from the date the patent office grants a design patent application.
Choosing the Property Type of Patent
Every inventor should determine what patent he wants to use to protect his invention. If an inventor wants to protect how his invention works, he should apply for a utility patent, however, if an inventor wants to protect how his invention or product looks, he should seek a design patent. If you're unsure about the type of patent that you need for your invention, you should speak to your patent attorney to assist you with choosing the proper type of patent for your invention.
Maintenance Fees / Patent Renewal Fees
Also, it's important to note that utility patent holders must pay periodic maintenance fees at 3.5, 7.5, and 11.5 years to keep a utility patent in its active/grant state. Missing one of these maintenance/renewal fees will result in the expiration of a utility patent. As such, utility patent holders should ensure that these fees are paid on time to keep a utility patent active.
Design patents, unlike utility patents, do not require a patent holder to pay periodic fees. Once an inventor obtains his patent, the patent expires upon the expiration date of the patent term. So, inventors do not need to worry about paying maintenance fees to keep a design patent in its active/grant state.
Example of Utility Patent
Here is an example of a utility patent:
Example of Design Patent
Here is an example of a design patent:
Utility Patent vs Provisional Patent
When applying for a utility patent, inventors have two options: (1) file a full nonprovisional utility patent application, or (2) file a provisional patent application first to obtain an early filing date and later file a utility patent application.
Inventors often opt to file a provisional patent application first because it requires less work and is cheaper to file than a complete utility patent application. The provisional application reserves an early filing date for an invention, but it does not turn into a patent.
Reserving an early filing date in the U.S is extremely important because it has a first to file rule that awards a patent to the inventor who first files a patent application with the patent office. As such, inventors often choose to first file a provisional application to obtain the early filing date.
That said, a provisional patent never turns into a granted patent, as such an inventor has 12 months from filing a provisional application to file a nonprovisional utility patent application to continue patent his invention.
If an inventor does not file a nonprovisional patent application within the 12 month period, the early filing date is lost and the provisional application is deemed to have been abandoned.
Obtaining Both a Utility Patent and a Design Patent
Some inventions may be protected by both a utility patent and a design patent. However, for an inventor to obtain both a utility and design patent, an inventor must file two separate patent applications. The utility patent will protect the functional aspects of the invention, while the design patent will protect the appearance of the invention.
If the appearance or aesthetics of your invention contributes to the popularity of your product or invention, then you should seek a design patent in addition to a utility patent. Design patents are easier to obtain than utility patent and they also cost less, since they're not as complicated as utility patents.
Having overlapping protection for your invention or product adds tremendous value to your invention and protects you from copycats who may copy not only the function of your product but also its design.
Patent Rebel Frequently Asked Questions (FAQs)
1) What does utility patent mean?
Utility patent means that you're dealing with a form of intellectual property (IP) protection that's protecting how an invention or product works. For example, if a product is protected by a utility patent, you cannot use, makes, or sell the product without first obtaining an inventor's express permission to do so.
2) What qualifies for a utility patent?
For a product or invention to qualify for a utility patent, it must be new, nonobvious, have a patentable subject matter, and offer some useful purpose. Also, for an invention or product to qualify for a patent, an inventor must prepare an accurate patent application, file it with the USPTO, and prosecute it until the patent office issues a patent for that product/invention.
3) Should I patent my product?
If you have a product that you know you can successfully commercialize, you should patent it because a utility patent will allow you to control who uses, makes, and sells the product. A patent allows you to protect your intellectual property, enabling you to choose who you sell or license your IP to.
4) Are patents worth the money?
Patents can be worth the money if the product you're patenting has a market or you know you can license the use of your patented invention to others in exchange for a fee.
5) Should I patent my idea before selling my product?
If you have a product that will become successful, you should patent it prior to selling it. This is so because, in the US, an inventor cannot patent an invention that has been publicly disclosed or offered for sale more than 12 months prior to filing a patent application with the USPTO.
6) Can I patent a product that already exists?
No, you cannot patent a product that already exists if you're not the original inventor of the product and more than 12 months have passed since the product is being offered for sale or publicly disclosed.
7) What is the length of a utility patent?
A utility patent has a length of 20 years. The 20-year patent term/life is measured from the date an inventor files his utility patent application with the patent office. A utility patent may expire before the expiration of the patent term if the maintenance fees on the patent are not paid on time.
Registering a Patent
If you have an idea or an invention that you're currently working on, you might be wondering how to register a patent with the USPTO to obtain a patent to protect your invention from being used and copied by others. Patents are intellectual property rights that allow an inventor to control who uses, makes, sells, and imports the patented invention for a limited period of time. Utility patents last for 20 years from the filing date of a patent application and design patents last for 15 years from the date the USPTO grants a patent application. So, how do you register a patent with the patent office? We will answer this question below.
What is Registering a Patent?
Registering a patent is the process of preparing a patent application, filing it with the USPTO, and prosecuting it so that an inventor can successfully patent his invention and have the patent office issue an inventor a patent to protect his invention.
How to Register a Patent?
Registering a patent can be done by preparing a patent application for an invention and filing it with the patent office. Once the patent office grants a patent application, a patent will have been registered and an inventor can begin controlling who uses, makes, and sells the invention protected by the patent registration.
To register a patent, an inventor must perform the following steps:
- Choose a patent that's suitable for the invention you want to register
- Document the Invention you want to Register
- Don't talk about your invention publicly
- Hire an attorney to assist you with the patent registration process
- Conduct a prior art search
- Prepare a patent application
- File your patent registration application with the patent office
- Check the status of your patent registration
- Patent application is approved
Choose a Patent That's Suitable For the Invention You Want to Register !
Before applying to register a patent with the USPTO, inventors must choose the appropriate type of patent for their invention. The USPTO currently offers three types of patents that can be registered: (1) utility patent registration, (2) design patent registration, and (3) plant patent registration. We will discuss these three types of patents in more detail below.
Utility Patent Registration
Registering a utility patent protects how an invention works, as well as how it used. Said differently, utility patents protect the functional aspects of an invention. Utility patents last for 20 years from the date an inventor files a patent application with the USPTO.
Design Patent Registration
Registering a design patent protects how an invention looks or the appearance of an invention. Said differently, a design patent protects the aesthetics of an invention. It cannot be used to protect the functional aspects of an invention. Design patents offer 15 years of patent protection.
Plant Patent Registration
Registering a plant patent protects new, asexually reproduced species of plants. Plant patents, like utility patents, offer 20 years of protection. That said, plant patents are the least sought after patent, making up less than one percent of all applied for patents.
Document the Invention you want to Register
To register your invention, you should take notes about how you came up with the idea and the different tasks that you performed to make your invention. Having a well-documented invention makes establishing ownership over your invention easy and establishes that you are indeed the original inventor of the invention.
Having a well-documented invention also makes the life of the attorney who's assisting you with patenting your invention much easier. Since an attorney may have to spend less time preparing your patent application, this will reduce the attorney fees that you pay.
So, while taking notes is time-consuming, it will make patenting and registering your invention with the USPTO much easier.
Don't Talk About Your Invention Publicly
If you have an invention that you want to register and patent in the US and abroad, you should not disclose your invention to the public. The United States offers inventors a 12 month grace period during which to patent an invention after disclosing it. Other countries do not offer such a grace period and any public disclosure of the invention will render the invention unpatentable.
Also, the United States has a first to file rule that grants a patent to the inventor who first files a patent application with the USPTO.
For example, if you make an invention and party B makes the same invention two years later but files a patent application with the patent office before you do, party B will be awarded a patent and you will not even though you made the invention first.
As such, if you have an invention, don't sit on it for too long because you might miss your opportunity to patent your invention and register it with the USPTO.
Hire an Attorney to Assist you with the Invention Registration Process
Patenting an invention and registering it with the USPTO is a complicated and time-consuming process. To comply with all of the requirements for patenting an invention, inventors should hire an experienced patent attorney. Patent attorneys have the knowledge and legal skills to properly navigate the patent registration process.
Patent attorneys typically charge $5,000 to assist inventors with patenting simple inventions, however, the cost to patent more complex inventions can easily exceed $15,000.
If you don't have the funds to hire an attorney, consider hiring a patent agent to assist you with patenting and registering your invention with the USPTO.
Conduct a Prior Art Search
Prior to registering and patenting an invention, an inventor or his attorney must conduct a prior art search. Conducting a prior art search entails searching the world wide web, USPTO patent database, international patent bases, and journals or other written materials for inventions that are the same as or similar to the one the inventor is seeking to patent.
Conducting a prior art search is a complicated and time-consuming task that should be performed by an individual who is experienced in performing prior art searches for patenting and registering inventions with the patent office. So, hire someone who has experience performing this type of search before proceeding to prepare a patent application.
Prepare a Patent Application
Preparing a well-written patent application is extremely important because the patent application and patent claims lay out the scope of the invention an inventor is seeking to register and patent with the USPTO.
The broader the patent claims, the more protection and more control an inventor will have over his invention. Said differently, the broader the claims, the broader the control an inventor will have over his invention.
Hiring an attorney to prepare a patent application is not required by the USPTO, however, the patent office strongly recommends that inventors hire an attorney to prepare their patent application because patent law is quite demanding as to the content and preparation of patent applications.
Making even seemingly minor mistakes could cost you a ton of money and time to fix later in the patenting process.
File Your Patent Registration Application with the USPTO
After an inventor prepares his patent registration application, he should then file the application with the USPTO. Filing a patent application in the United States is not free, an inventor must pay a basic filing fee, along with a patent examination fee and a patent search fee. Once the fees are paid, the application goes into a queue until it's assigned to a patent examiner.
Periodically Check the Status of Your Patent Registration Application
After filing a patent registration application with the patent office, an applicant must periodically check the status of his patent application. Now, we're not telling you to check the status every 30 minutes, but it's a good habit to check its status every week to ensure that you respond to the patent office's request for any additional documents or that changes/amendments be made to your patent registration application.
Patent Application is Approved
After filing your patent application, the patent office may require some changes and/or amendments to your application. If your application is complete and meets the patenting requirements, the patent office will approve your patent registration application and your patent will be granted and issued.
As soon as the patent office grants an inventor's patent application, an inventor will be able to control who uses, makes, sells, and imports the patented invention to the United States. If anyone wants to use or sell a patent holder's invention, he must first obtain the patent holder's express permission to do so.
Filing a Patent Registration Application Without an Attorney
Patenting an invention is a complex process especially for an individual who does not have experience preparing patent applications. Preparing a patent application should only be done by an experienced individual because making even small mistakes could delay the lengthy process of registering and patenting an invention.
Federal US law mandates that the USPTO assist inventors who want to patent their invention on their own, but they also recommend that inventors hire an attorney to assist them with patenting their invention because of the complexity of patent law.
U.S Patent Law is complex and places a lot of requirements on how a patent application must be prepared, as well as the content that must be present in the application for an inventor to patent his invention.
Leaving out information or making mistakes could delay your application and cost you more money down the road to make additions and/or amendments to your patent application. So, hire an attorney and have the job done right from the beginning.
If you cannot afford an attorney, you should explore the option of hiring a patent agent. Patent agents are licensed by the USPTO the same way patent attorneys are licensed by the USPTO and are able to assist inventors with preparing their patent application, filing it with the patent office, and prosecuting it until the patent office grants or rejects the patent registration application.
How Much Does it Cost to Register a Patent?
To register and patent an invention, it costs approximately $5,000 to patent a simple and straightforward invention and $15,000+ to patent more complex inventions. The cost to patent an invention depends mainly on the complexity of your invention, the experience of your attorney, and the geographical location of the attorney assisting you with patenting your invention.
Who Can Register a Patent?
Any inventor of a new invention, machine, process, design, or new plant species can file a patent application with the USPTO to register and patent his invention. As we mentioned above, to register and patent an invention, and inventor must follow the strict rules set forth by US Patent Law to be able to obtain a patent over his invention.
How Long Does it Take to Register a Patent?
According to data from the USPTO, it currently takes 24 months for an inventor to successfully register and obtain a patent. The 24-month patenting period begins the moment an inventor files a patent application with the patent office and lasts until the patent office either grants or denies a patent application.
If an applicant wants to speed up his patent application, he has two options. If an applicant filed a utility patent application, he can speed up his application by requesting to use the USPTO's Track One services.
Track one promises to process a patent application within 12 months, which is much quicker than the 24 month waiting period for regular applications. That said, an applicant must pay an extra fee to use this service.
If an inventor is applying for a design patent, an applicant also has the option to speed up the process by requesting an expedited review of his design under Rocket Docket.
Rocket docket promises to grant a design patent application within 12 months of an applicant filing his design patent application. That said, some inventors have reported being able to patent their design in as little as four months. Like Track One, an applicant must pay an additional fee to use this service.
How Long Does a Patent Registration Last?
Utility patent registration lasts for 20 years. The 20-year patent term begins the moment an inventor files a regular, nonprovisional patent application with the USPTO. However, for an inventor to keep his utility patent active and in its grant state, he must pay three periodic maintenance fees at 3.5, 7.5, and 11.5 years. Failure to pay any of these maintenance fees will result in the expiration of the utility patent.
Design patents last for 15 years from the date the patent office grants a design patent application. Unlike utility patents, a design patent holder does not need to pay maintenance fees to keep his design patent in its active registration state.
How Many Patents can Inventor Register?
An inventor can register an unlimited number of patents. US Patent law and the USPTO do not place a limit on the number of inventions a patent holder can patent. That said, if an inventor wants to patent multiple inventions, he must file separate patent applications for each invention or design he wants to patent. This can be very costly, but if you have the resources and you know that you can make money from patenting your invention, it might be worth it to spend the time and money patenting them.
Patent Rebel Frequently Asked Questions (FAQs)
1) Do patents have to be registered?
To obtain a patent and register an invention with the USPTO, an inventor must prepare and file a patent application with the patent office. So, yes patents must be registered and approved by the patent office before an inventor becomes a patent holder to benefit from the protection of patent laws.
2) How do I register my patent?
You can register your patent by preparing a patent application, filing it with the USPTO, and prosecuting your patent application. If you are interested in patenting your invention, you should contact an experienced patent attorney in your state for more information on registering your patent.
3) What are the three types of patents I can register?
The patent office offers inventors three types of patents: utility patents, design patents, and plant patents. Utility patents are the most popular patent, followed by design patents and plant patents.
4) Can you register a patent after disclosing your invention?
In the US, you have 12 months to register and file a patent application with the USPTO from the date you publicly disclosed your invention, offered it for sale, or sold it. If an inventor does not file a patent application within the 12 month grace period, his invention will no longer be eligible for a patent. That said, the U.S is lenient and offers a 12 month grace period, other countries are not as lenient as the US and require that no disclosure of the invention has occurred.
5) What does it mean to register a patent?
Registering a patent refers to the process of patenting an invention. Patenting invention requires an applicant to prepare a patent application, file it with the patent office, and prosecutes it until the patent office grants a patent application, thereby granting an inventor a patent over his invention.
6) How do I register a utility / design patent?
The process for registering a design and utility patent is very similar and requires an applicant to prepare and file a patent application with the USPTO. If you have a design or invention that you want to register, please contact an attorney and ask them whether it's worth it for your specific case.
Provisional Patent vs Utility Patent
If you're like most of the visitors who visit Patent Rebel, you might be wondering: what is the difference between a provisional patent and a utility patent. The USPTO offers inventors the option of either filing a provisional patent application or a nonprovisional utility patent application. If you want to learn what the difference is between a utility patent and a provisional patent, read below to find out.
Provisional Patent vs Utility Patent
A provisional patent, correctly known as a provisional patent application, is a patent application that does not require many of the formalities that are required for a regular utility patent application, but it does not turn into a patent, whereas a non-provisional utility patent application turns into a patent grant.
Let's dive deeper into the differences between a provisional patent application and a utility patent application.
Provisional Patent (What does provisional patent mean?)
A provisional patent application is a toned-down version of a nonprovisional utility patent application. Provisional applications do not require much of the information required for a complete utility patent application.
For example, a provisional patent application does not require formal patent claims, if you've ever drafted a utility patent application, this is one of the longest and most time-consuming portions to create because it sets out the scope of an inventor's patent rights.
Also, provisional patent applications are much cheaper to file than utility patent applications because they require less to be performed by an attorney. As such, many inventors choose to file a provisional patent application to obtain an early filing date.
You might be wondering: why is obtaining an early filing date for an invention important?
Obtaining an early filing date for an invention is important because the United States has adopted a first to file rule, which grants a patent to the inventor who first files a patent application with the patent office.
The first to file rule encourages inventors who have inventions that they want to protect to head over to the patent office to file a patent application.
The importance can be illustrated with the following example.
Let's say that you invent something first and a subsequent inventor invents the same invention 2 years later but files a patent application before you do. The subsequent inventor will be awarded a patent application and you will not because he filed a patent application before you did.
The fact that you invented the invention first does not matter in this analysis. This is why inventors rush to the patent office to file an application to obtain an early filing date for it.
Many inventors choose to first a provisional patent application because it can be prepared fairly quickly when compared to preparing a complete nonprovisional utility patent application.
The only downside to filing a provisional patent application is that it does not turn into a patent because it's not examined by the USPTO.
As such, inventors file a provisional patent application for the early filing date and later file a nonprovisional patent application that benefits from the early filing date of the provisional patent application.
Utility Patent (What does utility patent mean?)
So, now we know that a provisional patent application is cheap, quick to prepare, and easy to file, so how does a nonprovisional utility patent application compare?
A nonprovisional utility patent application is a regular, formal patent application that must comply with the hundreds of requirements set forth by the USPTO.
Close attention to details and requirements must be paid to properly prepare, file, and prosecute a utility patent application.
Making even seemingly minor mistakes in a utility patent application could cost an inventor a ton of money and time to repair down the road.
As such, it is imperative that inventors hire an experienced patent attorney to assist them with preparing, filing, and prosecuting a utility patent application.
If you're an inventor with little to no experience prepare utility patent application, you should hire an experienced patent attorney to assist you with patenting your invention.
Patent Pending Status (What is it? & how do you get it?)
As soon as an inventor files either a provisional patent application or utility patent application, he will be able to advertise his invention. or product as patent pending. He may add the term "patent pending" to the product itself, product packaging, and any instruction manuals for the product.
This is a great advantage when it comes to advertising because consumers often associate patent-pending products with quality and ingenuity. So, if you've filed your patent application, you can immediately add this designation without doing anything else.
Turning a Provisional Patent Into a Utility Patent
By now, you should know that filing a provisional patent application does not result in a patent.
To obtain a utility patent and benefit from the early filing date of a provisional patent application, an inventor must file a nonprovisional patent application that claims the benefit of the earlier-filed provisional patent application.
Inventors have 12 months from filing a provisional patent application to file a nonprovisional patent application that claims the benefit of an earlier-filed provisional application to benefit from its earlier filing date.
If an inventor does not file a utility patent application within the 12 month grace period, the early filing date is lost. If the early filing date is lost, the inventor will have to rely on the filing date of the filing of the nonprovisional patent application.
Also, if an inventor files a provisional patent application and then files a nonprovisional utility patent application that adds new matters to the invention and those matters were not described in the provisional application, they are considered to be new matter and the inventor will not be able to benefit from the earlier filing date as it pertains to them.
The resulting patent will be a hybrid patent with some portions of the invention having priority of the earlier filing date and new matter having the filing date of the nonprovisional utility patent application.
As such, although some inventors believe that they do not have to spend the time and money preparing a provisional application, they are mistaken. Poor choices they make when preparing a provisional application will come back to bite them when the time comes to filing a nonprovisional utility patent application.
Should you Get a Utility Patent or Provisional Patent?
Inventors often start off by filing a provisional patent application to quickly obtain an early filing date and then file a nonprovisional utility patent application within the 12 month grace period to continue patenting their invention.
A provisional patent application is great for someone who is still working on his invention, knows how to describe how it works, yet doesn't want to invest heavily in patenting it right away.
The provisional application gives an inventor an early filing date and some flexibility to continue working on an invention, perfecting further.
Also, having a patent-pending invention makes finding and convincing investors to invest in your invention or product easier because it proves to them that you've taken legal measures to protect your work.
Also, having a patent pending on an invention shows inventors that you have rights to your work and that there is something tangible that they can invest their money in.
So, if you have an invention and you still haven't filed a patent application, what are you waiting for? Hire an attorney and ask them to assist you with patenting your invention and obtaining patent pending status on your invention.
Benefits of a Provisional Patent
As mentioned earlier, the main benefit of filing a provisional patent application is that it gives inventors an early filing date for their invention. This is especially important in situations where many people are seeking to patent the same invention.
The first to file rule in the U.S awards a patent to the first inventor who files a patent application, as such, provisional patents are an important tool for inventors all around the world seeking to patent their inventions in the United States.
Patent Rebel Note: To benefit from a provisional patent, make sure that you take the time to accurately describe the invention you're seeking to patent. Leaving out critical information about the invention you're seeking to patent may cost you a patent. So, hire an attorney and have done correctly if you value your invention and believe it will become commercially successful.
The second benefit of obtaining a provisional patent (filing a provisional patent application) is that you'll be able to market and advertise your invention as patent-pending as soon as you file your provisional patent application with the USPTO.
Now, let's discuss the benefits of obtaining a utility patent.
Benefits of a Utility Patent
Utility patents have many benefits, so let's dive right into them!
The biggest benefit of obtaining a utility patent over an invention is that a patent holder is able to control who uses, makes, sells, and imports his patented invention to the United States.
By being to control who uses and sells his patented invention, an inventor may be able to become the only person selling the patented product, thereby cornering the market and creating an advantage for himself over his competitors.
Also, as a patent holder, an inventor enjoys the right to allow others to use his invention in exchange for a fee or agreed upon royalty. This is what is known as licensing. An inventor can license the use or creation of his patented invention to others in exchange for an agreed-upon fee.
Licensing agreements can prove to be very lucrative, especially if the invention you've patented is something that others need and there is no other invention that solves the same one your invention solves.
Having said that, patents are also great for inventors because if someone copies or sells the inventor's invention without his permission, he can bring a lawsuit against that party in Federal District Court for patent infringement.
If the inventor is successful in his lawsuit, he will obtain an injunction, ordering the infringer to stop his infringing use of the inventor's patented invention or product.
So, as you can see, it might be worth your time to patent your invention, especially if you know that your invention solves a problem that no other invention solves.
However, before proceeding with patenting your invention, you should consult with your own attorney to determine whether patenting your invention is worth your time and whether you should spend your time and money patenting it because the patenting process is costly and time-consuming.
Frequently Asked Questions at Patent Rebel (FAQs)
1) What is the difference between a provisional and a non provisional patent?
The main difference between the two is that a provisional patent is a placeholder in time that gives an inventor some time to file a utility patent. Whereas a non-provisional utility patent is a full-fledged complete patent application that turns into a patent. Whether you choose to file a provisional application or a non provisional patent application, you should consult with your attorney before doing so.
2) What are the three types of patents?
The three types of patents offered by the USPTO are utility patents, design patents, and plant patents. Utility patents are the most applied for patent and they protect how an invention works. Design patents, on the other hand, are the second most applied for patent and they protect the appearance of an invention or how it looks. Plant patents are the least applied for patent and make up less than 1% of all applied for patents and they protect new, asexually reproduced plant species.
3) Does a provisional patent affect the patent term?
Yes, a provisional patent affects the patent term. The patent term without filing a provisional patent lasts for 20 years from the date an applicant files his nonprovisional patent application. However, when an inventor files a provisional patent application and follows up by filing a nonprovisional patent application, the patent term begins at the time of filing the provisional application thereby extending the 20 year patent term to 21 years.
4) Can a patent last forever?
No, a patent can never last forever. Utility patents last for 20 years from the filing date of a nonprovisional patent application. Design patents last for 15 years from the date the patent office grants a design patent application. Once a patent expires, it cannot be renewed. However, you may be able to patent an improvement to your invention and that could extend the amount of time you're able to benefit from your original invention.
5) Can you patent an expired patent?
No, once a patent expires, it falls into the public domain and cannot be patented again. When a patent falls into the public, anyone is free to use, make, and sell the patented invention without having to obtain the express permission of the patent holder.
6) Does a patent pending protect you?
A patent pending does not protect inventors. An inventor does not have any rights to an invention while a patent application is pending. An inventor gains rights to an invention only after the USPTO grants his patent application. Before that happens an inventor does not have rights to his invention.
Utility Patent vs Provisional Patent
At this point, you should know the difference between a utility patent and a provisional patent. Utility patent applications are full-fledged patent applications that turn into granted patents. However, provisional patent applications never turn into a patent. Instead, to get a patent, an inventor must file a nonprovisional utility patent application that relates back to an earlier-filed provisional patent. If you have any general questions or comments, please feel free to leave them in the comments section below.
How to File a Patent?
If you're like many inventors out there, you're probably working on your invention or you've completed working on it and you're wondering how to prepare and file your patent application with the USPTO. If that's you, you've come to the right place as we will discuss what you need to do to prepare and file your patent application with the patent office in the US.
How to File a Patent?
According to the USPTO, the best and most cost-effective way to file a patent application is to utilize the USPTO EFS Website to submit a patent application online. Choosing to not file a patent application electronically comes with a hefty fee of $400 to file a paper application.
That said, prior to filing a patent application, an inventor should perform several steps to avoid problems down the road.
Here is a summary of the things that you should have prepared prior to filing a patent application with the USPTO:
- Choose the patent that's suitable for your invention
- Document work on your invention
- Keep your invention secret
- Hire an attorney
- Conduct a prior art search
- Prepare your patent application
- File your application with the Patent Office
- Periodically check the status of your patent application
One: Choosing the Right Type of Patent
Before an inventor files a patent application or even begins preparing one, he should choose the appropriate type of patent for his invention. The USPTO currently offers three types of different patent applications: utility patents, design patents, and plant patents. We will explain the type of invention that these patents protect below.
Utility Patent
Utility patents protect the function of an invention. That is, utility patents protect how to make an invention, as well as how the invention works or achieves its purpose. Utility patents do not protect the appearance of an invention unless the appearance is in itself functional. Utility patents last for 20 years.
Design Patent
Design patents protect the aesthetics or appearance of an invention. Said differently, they protect how an invention looks, such as an invention's design or the appearance of product packaging. Design patents do not protect how an invention works. Design patents are good for 15 years.
Plant Patent
Plant patents protect new asexually reproduced species of plants. Plant patents, like utility patents, offer 20 years of protection and only protect new species of plants. Plant patents make up less than 1% of all applied for patents at the USPTO.
Two: Document Work on Your Invention
Documenting all of the work that you're doing to create your invention is very important because it helps you establish evidence that you are indeed the original inventor of the invention.
We know that taking notes while making your invention is time-consuming but may prove to be very important for protecting your intellectual property rights if your rights are ever challenged by someone else.
Also, taking copious notes will assist your attorney is understanding how your invention works, as well as how to make your invention. If your notes are good enough and help your attorney save some time preparing your invention, you may be able to save some money on attorney fees.
Three: Keep Your Invention Secret
Keeping your invention secret is of utmost importance and we'll explain why. The United States requires inventors to file a patent application with the USPTO within 12 months of publicly disclosing their invention, offering it for sale, or selling it.
That said, the U.S is lenient in that it offers a 12 month grace period for inventors to file their patent application because other countries don't offer a grace period to inventors who publicly disclose their invention, instead, they consider the invention as public and therefore unpatentable.
So, if you want to patent your invention in countries other than the US, make sure that you keep your invention secret until you've filed a patent application in each country where you want to protect your invention.
In most countries, once you've filed a patent application, you can go ahead and discuss your invention publicly. That said, it's best to consult with your attorney prior to disclosing your invention.
Four: Hire an Attorney to Conduct a Prior Art Search
Prior to preparing a patent application, an inventor should consult with an attorney and conduct a prior art search. A prior art search is a search for inventions that are the same as or similar to the one that an inventor is seeking to patent.
A prior art search usually starts by searching the internet for similar inventions, then proceeding to search patent databases, such as the USPTO Patent Database and other international databases of internationally patented inventions.
Once these two searches are conducted, a patent attorney will typically then move to search science journals that are related to the field of the invention you're seeking to patent.
If an attorney wants to get into more detail, he can dive into engineering archives that are related to your invention and search those, as well. But, typically, that's as deep as attorneys will go when conducting a prior art search for an invention.
Five: Prepare Your Patent Application
Once you've conducted a prior art search and the search did not reveal anything that prohibits you from patenting your invention, your attorney will probably begin preparing a patent application for your invention.
Preparing a patent application is the most important and time-consuming task in the process of patenting an invention. It's important because the quality of your patent application will determine the quality of protection that you receive from your patent.
The broader and stronger the application, the more control an inventor will have over his invention. As such, it's important for you or your attorney to take the time to draft a strong patent application.
Some inventors choose to patent their invention on their own to save money and this means drafting either a provisional patent application to quickly obtain an early filing date for the invention or drafting a regular, nonprovisional patent application.
A provisional patent application (PPA) is used by inventors to obtain a priority date for an invention. Obtaining an early priority date (filing date) is important in the US because it has a first to file rule that awards a patent to the party that first files a patent application for an invention.
The first to file rule can be illustrated by the following example. If you invent something first and two years later, Inventor B invents the same invention but files a patent application first, inventor B will be awarded a patent and you will not even though you made the invention first.
This is so because inventor B filed a patent application first. As such, if you have an invention, don't sit on it for too long because if you do, someone else might file a patent application for it at the patent office, barring you from patenting the invention even though you invented it first.
That said, you should not prepare a patent application on your own if you do not have the expertise to do so. We acknowledge that you can save a ton of money by preparing the application on your own, but you're sacrificing the quality of the patent you may get by doing so.
If you don't have the money to hire an attorney, you may choose to go with a patent agent. Patent agents can assist inventors with all aspects of patenting their invention at the USPTO.
Six: File Your Patent Application
Once you've prepared a strong patent application, it's time to file it with the USPTO. Filing a patent application can be done online. If you've hired an attorney, your attorney can file your patent application online for you.
Filing a patent application is the cheapest way to do so. Filing a paper application comes with an additional hefty fee of $400. So, get to a computer and file your patent application electronically.
At the time you file your patent application, you need to pay the application filing fee, as well as other patenting fees, such as the patent search fee and patent examination fee. You may liable for additional fees depending on your application, so please check the USPTO website for fee information prior to filing a patent application.
Unfortunately, if you want to file a patent application for free, you cannot because the patent office does not provide free services, however, they do offer discounted rates for small inventors.
Seven: Periodically Check the Status of Your Patent Application
Once you've filed a patent application, it's imperative that you periodically check the status of your patent application. The USPTO will update the status of your application at each step of the process.
You need to make sure that the patent office has everything they need to process your application. Periodically checking the status of your application will ensure that you reply to the patent office in a timely manner.
If the patent office needs additional information or needs you to make any changes, amendments, or additions to your application, you will know to do so by checking the status of your application.
You can check the status of your patent application by following these steps:
- Heading over to https://uspto.gov
- Clicking on patents
- Select patent application status from the drop-down menu
- Clicking on private PAIR to public PAIR to track the status of your application
- Once you've performed these steps, you will see a ton of relevant information, such as:
- Name of your invention
- Examiner name
- Invention class
- Status of your application
- History of actions performed on your application
Should You File a Patent Application?
If you have an invention that you know you can profit from, you should go ahead and contact a patent attorney to assist you with patenting your invention.
Filing a patent application to patent your invention is worth it for inventors who have an invention that is commercially viable. Obtaining a patent allows a patent holder to control who uses, makes, and sells his invention.
For example, if you have a new type of nail clippers that make cutting nails easier and quicker, patenting is a great option.
This is so because a patent on such a product allows an inventor to stop others from using, making, selling, and importing the patented product to the United States for a limited period of time.
This limited period of time is 20 years for utility patents and begins the moment an inventor files a utility patent application with the patent office.
How Long Does it Take to Get a Patent Application Approved?
According to data from the USPTO, it currently takes 24 months for the patent office to either approve or deny applicants' patent application. The 24 month time period begins at the time an applicant files his or her nonprovisional, regular patent application with the USPTO.
If an inventor wants to obtain a patent more quickly, he can use the Track One Service, which is a service offered by the USPTO that promises to either grant or deny a patent application within 12 months of an applicant filing a nonprovisional utility patent application. Applicants have reported obtaining a utility patent under Track One in as little as 6 months.
That said, if you're applying for a design patent, the patent office offers a similar service for design patent applications. The service is known as Rocket Docket and it promises to either grant or deny a patent application within 12 months, however, applicants have reported obtaining a design patent in 4 months using this service.
Patent Rebel Frequently Asked Questions (FAQs)
1) How much does it cost to file a patent application?
The cost to file a patent application is different from one inventor to another. Expect to pay approximately $1000 in patenting fees when you submit your patent application.
2) Can I file a patent application on my own?
Absolutely, anyone can file a patent application and they do not need to be represented by an attorney. However, the USPTO strongly recommends that applicants hire an attorney to prepare and file a patent application on their behalf.
3) What are the two main types of patents?
The two main types of patents sought after at the USPTO are utility patents and design patents. Utility patents protect how an invention works and design patents protect how an invention looks. So, know which type of patent you need before applying.
How to File for a Patent?
You can file for a patent by preparing a patent application, uploading the required information and documents to the USPTO website, paying the applicable filing fees and patenting fees, and submitting your application. If you have any general questions or comments, please feel free to leave them in the comments section below.
How Long Are Patents Good For in the US?
How long a patent is good for depends on the type of patent that an inventor has obtained from the USPTO. Utility patents, design patents, and plant patents are good for different periods of time that we will discuss below. We will also discuss why inventors go through the difficult and costly process of patenting their inventions and products.
How Long Are Patents Good For in the US?
To determine how long a patent is good for in the United States, you need to know the type of patent you're dealing with because different types of patents last for different periods of time.
We will now discuss how long each of the different patents that the USPTO offers are good for.
1) How Long Are Utility Patents Good For?
Utility patents are good for 20 years from the date that an inventor files a (regular) nonprovisional patent application with the USPTO.
If an inventor files a provisional patent application and subsequently files a nonprovisional patent application, the 20-year patent term begins at the time the nonprovisional application is filed.
That said, utility patent applications filed before June 8th, 1995 last for 20 years from the filing date of the patent application or 17 years from the issue date of the patent, whichever is longer.
2) How Long Are Design Patents Good For?
Design patents are good for 15 years from the date the USPTO issues or grants a design patent application.
Note: Design patent issued from design patent applications filed before May 13, 2015, last for 14 years from the date the patent office granted the design patent application.
3) How Long are Plant Patents Good For?
Plant patents are good for 20 years from the date an inventor files a nonprovisional patent application to patent his new, asexually reproduced plant species.
Once a plant patent expires, anyone can use, make, or sell the patented species without having to obtain the patent holder's express permission to do so.
4) How Long Are Patents Good For After Filing a Provisional Patent?
Provisional patents are good for 12 months from the date that they are filed with the USPTO.
If an inventor files a utility patent application and obtains a utility patent after filing a nonprovisional patent application, the utility patent resulting from a previously filed provisional application lasts 20 years from the date an inventor files a nonprovisional patent application that relates back to an earlier-filed provisional application.
On the other hand, if an inventor converts a provisional patent application instead of filing a nonprovisional application that relates back to a provisional application, the filing date to determine how long a utility patent is good for is the filing date of the provisional patent application and not the date of the conversion.
Inventors rarely choose to convert a provisional application into a nonprovisional application, but if you do encounter this situation, you now know to look at the date of the provisional application to measure the 20-year patent term.
Patent Lifecycle in the US
- Having the idea for an invention
- Figuring out how to make the invention and how it works
- Documenting your invention
- Preparing and filing a provisional patent application
- Preparing and filing a regular, nonprovisional patent application within 12 months of filing your provisional application
- Prosecuting your patent
- Patent Grant
- Patent Expiration
Why is the Patent Term Important?
The patent term or how long a patent is good for is important because while a patent is in effect (patent term has not expired), an inventor can stop others from using, making, selling, and importing the patented invention to the United States.
Said differently, no one can use, make, sell, or import the patented invention to the United States without first obtaining the patent holder's express permission.
This allows an inventor to control who uses, makes, and sells the patented invention or product.
Since an inventor is able to control who uses or sells his invention, he can either sell his invention to a third party or he can license its use to others in exchange for an agreed-upon fee or royalty.
Can Patents Be Renewed After They Expire?
Generally, patents cannot be renewed once they expire. That said, to determine whether a patent can be renewed after it expires, you must ask: why did the patent expire?
If the patent expired because the patent term has ended, it cannot be renewed. For example, if you're looking at a utility patent that has lived out its 20-year patent life and it has expired, such a patent cannot be renewed.
The same applies to design patents. If you're looking at a design patent that has been granted for 15+ years, then it has expired and such a patent cannot be renewed after its expiration.
However, utility patents require the payment of maintenance fees to keep them in their grant state. If a utility patent expires for nonpayment of maintenance fees, such a patent can be renewed (for a hefty fee) and will last for the remainder of the patent term.
So, if you want to renew your patent and you know that you can't but it has permanently expired, you should consider modifying the original invention and patenting the improvements.
That said, the improvements you make must comply with the requirements of patenting an invention for you to obtain an improvement patent.
Why Do Inventors Go Through the Trouble of Obtaining Patents?
If you've every patented an invention or a product, then you probably know that obtaining a patent is a long, complicated, and costly process. So, why do inventors go through the trouble of patenting their invention(s)?
Inventors patent their inventions because US Patent Law allows them to control who uses, makes, sells, or imports their invention to the United States.
As a patent holder, an inventor can stop others from using, making, or selling the patented invention or product without the patent holder's express permission.
These rights allow inventors to profit from patenting their invention because they have the exclusive right to sell the patented product and license its use to others.
If the product has a market, an inventor could become the only person offering the product for sale without having to worry about competitors copying the product and selling their own version of it.
This is so because utility patent protect the function of a product. Since they protect the function, even if a patent holder's competitors were to make a product that looks totally different but works the same way, the patent holder will be able to stop others from making and selling a competing product that works the same way even though it looks different.
Also, many inventors choose to license the use of their invention or technology to third parties in exchange for an agreed-upon royalty or fee, allowing them to profit from their invention without having to spend tons of money marketing it and selling it.
How Long Does it Take to Get a Patent?
Now that we know how long a patent is good for, how long does it actually take applicants to get a patent?
According to data that we obtained from the USPTO, it takes applicants 24 months to get a utility patent and 20 months to get a design patent.
That said, there are ways to expedite your patent application, be it a utility patent application or a design patent application.
Utility patent applications can be expedited through Track One, which is a service offered by the USPTO for an additional fee. Track one promises to get applicants a decision on their application within 12 months, however, there are some reports of decisions being made in as little as 6 months.
Design patent applications can also be expedited through Rocket Docket, which is a service that the USPTO also offered for an additional fee. Although Rocket Docket promises to give applicants a decision within 12 months of filing a patent application, some inventors report obtaining a patent on their design in as little as 4 months.
So, if you have an invention or product that you want to patent as quickly as possible, there are some options that you can take to do so.
Different Types of Patents (Which One is Right For You?)
Utility Patent
A utility patent protects the functional aspects of an invention. Said differently, it protects how an invention works and how it achieves the desired result.
For example, if you wanted to patent a new type of nail clippers, you would want to obtain a utility patent to protect how it clips nails.
Utility patents are the most valuable patent that you can obtain because they offer broad protection.
Design Patent
A design patent protects the aesthetics of an invention. Said differently, design patents protect how your invention looks. This type of patent is different from a utility patent that protects how your invention looks.
Design patents aren't as strong as utility patents because competitors can design around your product, making it look different and they wouldn't be liable for design patent infringement.
This is where utility patents come in handy. If you have a utility patent and a design patent protecting your invention, even if your competitors where to make a product that looks totally different from yours but works the same way, you will be able to stop your competitors from making the invention because utility patents protect how the invention works without regards to how it actually looks or appears.
Plant Patent
A plant patent is a special patent that is granted to inventors who produce new plant species by asexual reproduction. Said differently, to obtain a plant patent, an inventor must have a new type of plant species that he can reproduce through means such as rooting, grafting, or budding.
If an inventor is able to patent his new plant species, he will be allowed to stop others from using, making, and selling the patented plant species for a limited period of time of 20 years.
Keeping Your Invention Secret Until You Patent It
Inventors are often times excited about their invention and it's all they want to talk about. However, we are here to tell you not to talk about your invention until you've actually patented it. There are some good reasons for doing so.
In the United States, the USPTO requires that an invention be novel for an inventor to be able to patent it. For an invention to be new, it must not have been publicly disclosed prior to filing a patent application with the patent office.
The USPTO does offer a 12 month grace period to inventors. This grace period allows inventors to file a patent application within 12 months of publicly disclosing or offering an invention or product for sale.
If an inventor does not file a patent application within the 12 month grace period, an inventor will be prohibited from patenting his invention. As such, it is important to keep your invention secret until you are ready to file a patent application with the patent office.
That said, don't keep your invention secret for too long because the United States has a first to file rule that awards patents to the party that first files a patent application with the USPTO.
We will illustrate the first to file rule.
If you invent a water pump and inventor B invents the same water pump 2 years later but files a utility patent application before you do. Inventor B will be awarded a patent and you won't be able to patent your invention even though you invented it first. This is so because inventor B filed a patent application before you did.
As such, if you have an invention you are unsure about patenting it, contact an experienced patent attorney in your jurisdiction and ask them about how you should proceed with your own case.
If you need to share your invention with third parties to work on it, make sure to have the parties that you are dealing with sign a confidentiality agreement.
Although a confidentiality agreement does not guarantee that the party will not disclose your invention, it does give you some recourse against a party that does disclose your invention.
Most times, a confidentiality agreement is enough to keep third parties from disclosing your invention.
Frequently Asked Questions
1) Do patents expire?
Yes, patents do expire. Patents do not last forever. In this US, utility patents last for 20 years, design patents last for 15 years, and plant patents last for 20 years. This article covers how long a patent is valid for in much detail.
2) What happens to a patent after it expires?
After a patent expires, the invention falls into the public domain. Essentially, this means that anyone can use, make, or sell the once patented invention without having to obtain the express permission of the previous patent holder. That said, you should contact your attorney prior to using an invention that was once patented to ensure that no other laws protect your use of the invention.
3) Can you renew an expired patent?
Once a patent expires because the patent term has ended, you cannot renew an expired patent. However, if you're dealing with a utility patent that has expired for nonpayment of maintenance fees, you may be able to renew the patent by reinstating it after paying the past due maintenance fees on the patent.
4) When is a patent effective?
A patent only becomes effective after the USPTO grants a patent application. Prior to the patent office granting a patent application, an inventor cannot stop others from using, making, or selling the patented invention. Once the patent office grants an application, then and only then does a patent holder gain the right to control who uses, makes, or sells his invention without his permission.
How to Patent Something?
If you've just finished working on an awesome invention, you might be wondering how you can patent that invention. The USPTO allows inventors to patent something so long as it meets the patenting requirements and a patent application is properly prepared and filed with the patent office. We will go into much detail about what you need to do to patent something below.
How to Patent Something?
You should follow these steps if you want to patent something:
- Determine the proper type of IP protection
- Determine the type of patent you need
- Does your invention meet the patenting requirements of:
- Patentable subject matter
- Novelty
- Nonobviousness
- Usefulness
- Patentable subject matter
- Prepare your patent application
- File your patent application for & pay the applicable fees
- Checking the status of your patent application & following up with the patent office
Determine the Proper Type of IP Protection
U.S Law offers holders of intellectual property several different ways to protect it. For example, patent law allows inventors to patent their inventions, machines, process, and designs. Obtaining a patent allows inventors to stop others from using their inventions without their permission for a limited period of time.
Trademark law allows mark holders to register their marks with the USPTO to stop others from using their marks in ways that confuse consumers as to the source of goods or services.
Copyright law allows the creators of artistic works, such as songs, books, articles, movies, and drawings to protect their work by registering their work of art with the US Copyright Office. Registration allows artists to stop others from misusing or copying their artwork without their express permission.
If you've determined that the proper IP protection for you is a patent, you should proceed to the next section to determine what type of patent you need for your invention.
Determine the Type of Patent You Need
Once you've determined that your IP can be protected by a patent, you should decide what type of patent you need. 99% of patents filed are utility patents and design patents, so you're probably wondering what the difference is between a utility patent and a design patent.
Utility Patents
Utility patents protect new inventions, machines, processes, compositions of matters, articles of manufacture, and any improvements of these. That said, utility patents protect how inventions work and how they're used by the end-user.
Design Patents
Design patents, on the other hand, protect the aesthetic or appearance of an invention. Said differently, design patents protect how an invention looks or the design of an invention.
So, now you should be able to determine whether your invention requires a utility patent or a design patent.
Both Types of Patents
You should know that some inventions qualify for both a utility patent as well as a design patent. However, to obtain both patents, an inventor must file both a utility patent application and a design patent application.
The utility patent application protects how the invention works or functions and the design patent protects the appearance of your invention.
If your invention has a unique function, as well as a unique appearance that customers like, you should consider applying for both types of patent protection.
Does Your Invention Meet the Patenting Requirements?
To patent your invention, the invention must meet the following requirements set forth under US Patent Law.
1) Patentable Subject Matter
To patent something at the USPTO, the invention must have a patentable subject matter, meaning that the invention must be one for which patent law offers protection.
Patent law allows inventors to patent machines, processes, compositions of matters, articles of manufacture, and designs. So long as your invention falls within one of these categories, you can proceed with patenting your invention.
2) Novelty
To patent something, your invention must be novel. The novelty requirement mandates that your invention be different from anything that has ever been patented before and different from anything that has ever been publicly disclosed.
US Patent Law has placed the novelty requirement to stop people from re-patenting once patented inventions. If an inventor cannot show that his invention is novel, he will not be able to patent it in the US.
If you have an invention, you must file a patent application within 12 months of publicly disclosing your invention or offering it for sale.
Also, prior to filing a patent application with the USPTO, it is critical that an applicant perform a prior art search to ensure that no one else has ever patented the invention or publicly disclosed the invention that the applicant wants to patent.
If the prior art search does not turn up inventions that are the same, an applicant can proceed with patenting his invention. However, if the patent search turns up inventions that are the same, the applicant should not file a patent application because the patent office will reject the application for lack of novelty.
3) Nonobviousness
The third requirement to patent something is that an invention is non-obvious at the time an applicant files a patent application with the USPTO.
Said differently, to patent an invention, the invention must be non-obvious and sufficiently different from anything that was already patented or publicly disclosed.
To test nonobviousness, the patent examiner conducts a subjective determination that asks whether an ordinary person skilled in the field of the invention would have believed the invention to be obvious at the time an applicant filed his patent application.
The nonobviousness inquiry is a subjective and factual inquiry that is undertaken by the patent examiner to determine whether the invention is, in fact, something that's new or whether it's just a combination of previously patented or publicly disclosed inventions.
Nonobviousness is the biggest hurdle that inventors face and must overcome to successfully patent their inventions.
To overcome nonobviousness, it helps if an applicant is able to show that there is a big difference between his invention and previously patented inventions and publicly disclosed invention.
It also helps if an inventor can show that his invention solves a problem or offers a solution for a problem that no other invention has been able to solve as this goes to show that the invention functions differently and achieves a desired result that no other invention has been able to achieve.
4) Usefulness (Utility)
To obtain a patent for something, an inventor must show that his invention is useful or offers some utility. Said differently, an inventor must show that his invention offers some identifiable benefit to society.
For many inventions, their utility is apparent from the invention itself. Take for example nail clippers, any person looking at them or their description will know that the benefit offered by them is the ability to trim nails, as such including a statement about their utility is not necessary.
However, for some inventions, utility is not readily apparent. In such a situation, it would be wise to include a statement that explains the utility of the invention (benefit of the invention).
Inventions are rarely rejected on the grounds that they are not useful, but to make sure that you satisfy this requirement, it's a good idea to include a short statement that highlights the utility or usefulness of your invention.
Preparing a Strong Patent Application
After you've determined that your invention qualifies for a patent and you've successfully conducted a prior art search, it's time to prepare your patent application.
Preparing a patent application is one of the most time-consuming parts of patenting your invention, but it's the most important part because it sets the scope of protection for your invention.
Hiring an experienced patent attorney to prepare your patent application is the most important thing you can do to obtain the strongest patent protection for your invention.
A patent application must include the following sections:
- Title of your invention
- Cross-references to relevant patent applications
- A statement explaining any Federally sponsored R&D
- Background of the invention
- Summary of the invention
- Invention drawings
- Brief description of the drawings
- Invention claims
- Abstract of the invention
The patent application for an invention must include sufficient detail to enable both the patent examiner and a person familiar with the field of the invention to understand how to make the invention, as well as how to use it.
Preparing a well-written and strong patent application is essential to obtaining the strongest patent protection for your invention. This is so because a patent application is similar to a deed of land in that the patent application sets the scope of protection for the invention just as a land deed sets the boundaries of a piece of land.
As such, hiring an experienced patent attorney to prepare your patent application is essential to obtaining the best and broadest protection possible for your invention.
If you don't have the funds to hire a patent attorney, you should explore the option of hiring a patent agent to prepare your patent application for you.
Patent agents, like patent attorneys, are licensed by the USPTO to assist inventors with preparing their patent application, filing it with the patent office, prosecuting them, and communicating with the patent office on an inventor's behalf.
As such, if you can't hire a patent attorney, you may want to hire a decent patent agent because they are familiar with the process of patenting an invention.
Hiring one can save you a lot of money and time down the road by avoiding easy mistakes that you may make if you choose to prepare your patent application on your own.
Filing Your Patent Application with the USPTO & Paying the Applicable Fees
Once you or your attorney have prepared a patent application, it's time to file your patent application. Filing can be done online using the USPTO website.
At the time you file a patent application online you will have to pay the associated filing fees and patenting fees.
Utility patent fees are typically much higher than design patent fees because utility patents are more complex and have more patent claims.
Design patents are less expensive than utility patents because an inventor can only claim one design per design patent application.
Since design patents only have one claim, they take less time to prepare and are therefore less costly than utility patents which can take a lot more time to prepare and file.
The patent office charges significantly lower fees when it comes to filing fees, search fees, and examination fees for design patents vs utility patents.
Checking the Status of Your Patent Application
Once you've filed your patent application, you should check the status of your patent application by using the USPTO PAIR system. The pair system has the latest and most up-to-date information about your patent application.
Make sure that you periodically check the status of your application as the patent examiner may have sent you information about your pending patent application.
You should check to see if the patent office has requested any information or requires changes/amendments to your patent application.
If the patent office requires some action on your part, you should contact your patent attorney and ask them to handle the matter for you in a timely manner.
How Much Does it Cost to Get a Patent?
We will now cover how much it costs to get a utility patent and how much it costs to get a design patent.
Utility Patent Cost
- Filing fees: $75
- Patent search fees: $165
- Patent examination fees: $190
- Attorney fees: $7,500 to $15,000+ (depends on invention)
- Utility patent issue fee: $250
Design Patent Cost
- Filing fees: $50
- Patent search fees: $40
- Patent examination fees: $150
- Attorney fees: $1,500 to $3,000
- Design patent issue fee: $175
Patent Rebel Comment: The costs associated with patenting an invention can vary depending on the complexity of your invention, how much assistance you're offering the attorney preparing your patent application, as well as the geographic location of the attorney that's assisting you with patenting your invention. Attorneys in different regions charge different amounts for their services.
How Long Does it Take to Patent an Invention?
According to data from the USPTO, it currently takes the patent office 24 months to process a utility patent application and it takes them 20 months to process a design patent application. When we say process, we mean it takes the patent office that much time to either grant or deny a patent application.
If you need to patent your invention as quickly as possible, the patent office offers two different services to expedite patent applications.
Expediting a Utility Patent Application
The patent office allows applicants of utility patent applications to expedite their patent application by applying for Track One. Track One service promises to either grant or deny a patent application within 12 months. However, there are some reports of the patent office granting patent applications within as little as 6 months by using this service. That said, to expedite a utility patent application, an applicant will have to pay an extra fee in addition to the normal patenting fees.
Expediting a Design Patent Application
Applicants can expedite a design patent application by filing a request to expedite their design patent application. The request to expedite a design patent application is known as Rocket Docket and can be made at the time an applicant files his design patent application with the USPTO. To use Rocket Docket, an applicant will have to pay an extra fee in addition to the regular patenting fees to obtain a design patent.
Why Are Patents Important for Inventors?
Patents are important to inventors because they allow patent holders to stop others from using, making, selling, offering to sell, and importing the patent invention to the United States for a limited period of time.
Utility patents grant these rights to a patent holder for 20 years. The 20-year patent term begins at the moment an applicant file a nonprovisional utility patent application with the patent office.
Design patents, on the other hand, grant these rights to a patent holder for 15 years. The 15-year patent term for a design patent begins at the time the patent office grants a design patent application.
During the patent term, a patent holder may be able to sell the patented item or object while controlling who sells any competing objects that function the same way as the product or object that the patent holder has patented.
This offers the patent holder an advantage over others by allowing him or her to exclusively profit from the sale of the patented invention.
Also, by patenting an invention, the patent holder can license the use of his invention to others in exchange for an agreed-upon royalty or fee. Patents make this process easier and more clear because the patent application lays out the scope of rights that the patent holder is allowing others to use.
As such, there are many benefits to patenting an invention. However, before spending the time and money to patent an invention, an inventor should consult with his own patent attorney to determine whether proceeding with the patenting process is worth it for his specific situation.
Frequently Asked Questions Patent Rebel Receives (FAQs)
1) Can you patent an idea or a concept?
The short answer is: no, you cannot patent merely an idea or concept. You much have something more concrete. To patent something, you have to be able to explain how it works or functions, as well as how it's used.
To patent your invention, you invention must be something for which the patent office offers a patent, such as a machine, process, article of manufacture, composition of matter, or a design.
If your invention does not fall within one of these categories or one of the prohibited categories, the patent office will not allow you to patent it.
2) What is the difference between a utility patent and a design patent?
A utility patent protects how an invention works or the functional aspects of an invention. Design patents, on the other hand, protect the aesthetics or appearance of an invention. Said differently, design patents protect how an invention looks or appears.
An inventor should know which type of patent he or she needs because utility patents and design patents protect different aspects of an invention.
Some inventions can qualify for either a design patent or a utility patent and some can qualify for both types of patents.
That said, if you want to protect your invention with both a design patent and a utility patent, you will need to apply for each protection separately, meaning you'll have to prepare and file both a utility patent application, as well as a design patent application.
3) What qualifies for a patent?
For something to qualify for a patent, it must have a patentable subject matter, meaning it's something that patent law protects, such as a machine, process, article, formula, or design. Also, to patent something, it must be new and unique, meaning it's different from anything that has ever been patented and anything that has been publicly disclosed or offered for sale more than 12 months before an applicant files a patent application with the patent office.
4) Can you patent a product that already exists?
No, you cannot patent a product that already exists and is offered for sale to the public. To patent something, you must be the original inventor of the item you're seeking to patent. Also, to get a patent on something, it must not have been publicly disclosed prior to you filing a patent application. In the event that a product is already being offered to the public, you cannot patent it because it is not novel (new), but rather something that is already publicly available.
5) How do I find out if someone else has already patented the invention I want to patent?
You can find out of someone else has already patented the invention that you want to patent by conducting a prior art search. Said differently, you should conduct a search of the USPTO patent database to check whether someone else has already patented an invention that's the same as or similar to the one that you're seeking to patent. You should also perform a search of sources that could include inventions that are similar to yours. This is so because the patent office will not allow you to patent an invention that has already been patented before, nor will it allow you to patent an invention that has been publicly disclosed.
6) Can anyone see a patent?
Yes, if you successfully patent your invention, anyone can conduct a search of the USPTO database to see your patent. Once a patent holder's patent expires, the public will be able to use, make, and sell the patented invention without having to obtain the patent holder's permission. That said, if you don't want your invention to become public, you should talk to an attorney and discuss other options or methods to protect your invention.
7) Does my invention qualify for a patent?
For an invention to qualify for a patent, an invention must have the following:
- Patentable subject matter
- Novelty
- Nonobviousness
- Usefulness (Utility)
For a more in-depth explanation, read above as this article goes into great detail about the requirements for patenting an invention or design.
How to Get a Patent on Something?
According to Patent Rebel, to obtain a patent on something, such as invention, machine, process, composition, article, or design, an applicant should hire an attorney to assist him with the process of patenting his invention, especially if an inventor does not have experience patenting inventions.
To get a patent, an attorney will then conduct a prior art search to determine whether anyone has already patented the same invention. If no one has patented the same invention or improvement, the attorney will then proceed to preparing a strong patent application, filing it with the patent office, paying the applicable fees, and prosecuting the patent application.
If you have any general questions or comments, please feel free to leave them in the comments section below. Please remember that we are only offering general legal information, to know more about your specific situation, you should contact a licensed patent attorney in your jurisdiction.
Getting a Patent on Your Own
If you have an invention that you want to patent but don't want to pay a huge amount of money to an attorney, you do have the option of patenting your invention on your own without the help of an attorney. The USPTO will even offer you help to patent your invention if you choose to do so on your own. We will now show you how you can get a utility or design patent on your own.
That said, although the patent office offers help to inventors, they do recommend that you hire an attorney to assist you with the preparation, filing, and prosecution of your patent application.
The USPTO recommends hiring an attorney because patent law is quite complex and making even small mistakes can cause trouble down the road. That said, we will provide as many details as possible to assist you with patenting your invention on your own.
That said, inventors do have the option of patenting their invention on their own without having to hire a lawyer.
Why Do Inventors Get Patents?
It's beneficial to patent an invention because obtaining a patent on an invention allows a patent holder to control who uses, makes, sells, offers to sell, and imports the patented invention to the United States.
Said differently, patents allow their holders to profit exclusively from their invention without having to worry about others making and selling the patented invention.
Having said that, let's dive into how you should approach patenting your invention without an attorney.
So, how exactly do you get a patent on your own? We will explain this in much detail below.
Getting a Patent on Your Own
Here are the steps that you need to take to get a patent on your own.
- Determine whether your invention qualifies for patent protection
- Determine what type of patent you need (Utility or Design)
- Keep your invention secret
- Perform a prior art search
- Prepare a patent application
- File the patent application with the USPTO
- Pay applicable patenting fees
- Track the status of your patent application
1) Determine whether your invention qualifies for patent protection
To get a patent on your own, you must have something that patent law protects. Patent law in the U.S protects new and unique inventions, processes, methods, and designs.
Utility patents protect the functional aspects of an invention or how an invention works and how it's used. Design patents, on the other hand, protect the ornamental aspects of an invention or the appearance of an invention.
Obtaining either a utility patent or design patent allows an inventor to legally stop others from using, making, and selling the patented invention in the United States for a limited period of time.
To obtain either a utility patent or a design patent, an inventor must have an invention that has:
- Patentable subject matter
- Novelty (New)
- Nonobvious
- Useful
Patentable Subject Matter
To obtain a patent, your invention must be the type of intellectual property that patent law protects. Patent law protects new and unique inventions, machines, processes, compositions of matters, articles of manufacture, and designs. We will discuss what utility patents and design patents protect below.
Novelty
The novelty requirement requires an invention to be new. That is, an inventor must have an invention that is different from anything else that has ever been patented before and the invention must not have been publicly disclosed nor offered it for sale more than 12 months prior to filing a patent application with the patent office.
Nonobviousness
To get a patent, an inventor must show that his invention is sufficiently different from anything that's out there so that an ordinary person skilled in the field of the invention would not believe the invention to be obvious at the time an inventor files his patent application.
If your invention is not sufficiently different, the patent office may reject your patent application for being obvious. Making small changes to existing inventions is unlikely to make your invention nonobvious.
Usefulness
The last requirement an inventor has to satisfy to get a patent is showing that the invention to be patented serves some useful purpose. Many inventors include a statement in their patent application that explicitly states the purpose of the invention. However, such a statement is not always required such as where the utility or usefulness of an invention is apparent.
Patent applications are rarely rejected on the grounds that the invention described therein is not useful.
An inventor needs to show that his invention provides the public with some identifiable benefit. For example, a new type of plastic beverage that composes more quickly, helping the environment, is enough utility to satisfy the usefulness requirement.
2) What Type of Patent Do You Need?
Utility Patents
Utility patents protect new and unique inventions, machines, processes, compositions of matter, and articles of manufacture. Said differently, utility patents protect machines, processes for making something, compositions of matter such as chemical formulations, and articles of manufacture or products that have uniquely been assembled.
Examples of things utility patents protect:
- Computer hardware
- Machines (something with moving parts such as an engine)
- Process for making a product
- Computer software
- Compositions of matter (Pharmaceuticals, supplements)
- Articles of manufacture (nail clippers, a new type of mop)
Utility patents are the most applied for patents, making up more than 92% of all applied for patents at the USPTO. Utility patents offer strong and broad protection over an invention.
Design Patents
Design patents protect new and unique designs. Said differently, design patents protect the ornamental or aesthetic aspects of an item. They protect the appearance of an invention.
Design patents are therefore different from utility patents, which protect the functional aspects of an invention and how it works.
Examples of things design patents protect
- iPhone design
- Lawnmower design
- Purse design
- Packaging design for a product
- Jewelry design
It's good to have a design patent over an invention, but design patents are not as strong as utility patents. Utility patents offer the strongest protection because they protect how an invention works. So, even if your competitor changes the appearance of a competing invention, if it works the same way, a utility patent holder will be able to stop his competitors from using, making, and selling the patented invention.
Obtaining both utility and design patents
Some inventions qualify for both a utility patent, as well as a design patent. The utility patent protects the functional aspects of the invention, such as how it works and how it's used and the design patent would protect the appearance of the invention or how it looks.
That said, to obtain both utility and design patent protection, an inventor needs to file a utility patent application and a separate design patent application. Filing a single application for both types of protection does not exist. Each must be applied for separately.
3) Keep Your Invention Secret
The USPTO requires inventions to be novel. The novelty requirement means that the invention must not have been publically disclosed or offered for sale prior to filing a patent application with the patent office.
The patent office offers a 12 month grace period to inventors who have publically disclosed their invention. That is, an inventor has 12 months to file a patent application with the patent office from the date he publically discloses his invention.
So, it's best practice not to disclose your invention at all prior to filing your patent application with the patent office.
Additionally, if you're planning on patenting your invention in other countries, you may want to keep your invention 100% secret and not publically disclose it because some countries require absolute novelty, meaning that no disclosure has ever been made.
So, keep your invention secret prior to filing a patent application.
4) Performing a Prior Art Search
Getting a patent on your invention requires an inventor to have a novel invention, this means having an invention that is completely different from any invention that has been patented in the US, as well as being different from anything that has been publicly disclosed.
To determine that an invention is different from anything that's been patented, an inventor needs to perform a search of the USPTO database to ensure that no one else has ever patented the same invention.
Also, an applicant must perform a public search to determine that no one has publicly disclosed the invention the inventor is seeking to patent.
Performing a successful and competent prior art or patent search is an art. As such, having the experience to know where to search, as well as when to stop searching is a must to perform a successful prior art search.
Attorney performing a patent search typically start searching broad topics that relate to the invention and proceed to make their search narrower by using more restrictive keywords.
At the end of a patent or prior art search, an applicant should have a good idea of where his invention stands in terms of other similar inventions.
5) Preparing a Patent Application
When preparing a patent application, these are some of the important sections that you'll have to include in your application.
A. Title of the Invention
A title for your invention is one of the first things you'll encounter as you begin to prepare a patent application. The title should be as short and as specific as possible while accurately describing the invention to be patented. The title should also be fewer than 500 characters.
B. Cross Referencing Related Patent Applications
If an inventor has filed a provisional patent application before filing a (regular) non-provisional patent application and the inventor applicant wants to benefit from the earlier filing date of the provisional application, an applicant must cross-reference the application in the nonprovisional patent application.
The section that cross-references related patent application comes right after the title of the invention.
Cross-referencing a previously filed provisional patent application can be done by including the following text:
"This application claims the benefit of US Provisional Patent Application No. ##/123,456, filed on January 1st, 2020."
According to the USPTO, an applicant may cross-reference his patent application to other applications whenever appropriate. Several cross-references may be made.
C. Statements Regarding Federally Sponsored R&D
If the federal government has sponsored the research and development of an invention, the patent application should include a statement that states what interest, if any, the government has in the invention. Also, the patent application should include the name of the US Government Agency that sponsored the research and development of the invention, as well as the contract number, if any.
D. Background of the Invention
This section should include a description of the class to which the invention relates. For example, if you've invented a new type of Jar, you should state that your invention falls in class 215 of "Bottles and Jars."
An applicant should also give a brief explanation of the problems that prior art has not solved and how the applicant's invention solves those problems. An applicant should include specific references to prior art and how his invention is different from such art.
This section should be short and to the point.
E. Brief Summary of the Invention
The summary of the invention should contain a few sentences that describe the essence of the invention, how the invention works, as well as the purpose for which the invention was created.
The brief summary of the invention should let the patent examiner, as well as the public, know what the invention is about and how it works as briefly as possible.
The Summary should be consistent with what the applicant is claiming as the invention in his patent application.
The applicant should use easy to understand and clear terms to explain the invention. An applicant should avoid using hard to understand terms, as well as legal jargon.
F. Brief Description of the Invention Drawings
You should include a brief description of each of the invention drawings that you've included in your patent application.
For example:
Fig. 1A shows a side view of ________________
Fig. 2B shows a top view of _______________
G. Detailed Description of the Invention
To get a patent, an applicant must include a detailed description of the invention. This description should include how to make the invention, as well as how to use the invention. The description should be made in clear and concise terms.
The invention should be described in as many details so as to allow an ordinary person skilled in the field of the invention to be able to understand how to make the invention, as well as how to use it.
If after reading the detailed description an ordinary person skilled in the field of the invention does not know how to make it and use it without much experimentation, your description is not sufficient and the patent examiner may reject your application, requiring the applicant to amend this section of the application.
H. Add Patent Claims
The claims section is where the inventor sets forth what parts of the invention he wants to protect with the patent. Patent claims set the scope of protection offered to the patent holder. Since claims are the most important part of a patent application, special attention should be given to them.
An inventor can make several patent claims in a utility patent application. However, if you're applying for a design you can only claim one design per design patent application.
In a utility patent application, claims should start with the broadest independent claim possible, followed by other dependent claims that limit the broadest independent claims.
I. Abstract of the Disclosure
The abstract of the disclosure serves as a quick section that both the USPTO and the public can use to get a quick idea about the invention. The abstract should enable anyone who reads it to understand what's new about the invention. It should not be more than 150 words and is usually limited to one paragraph.
J. Invention Drawings
Invention drawings should be included in every patent application where the drawings are necessary for the patent examiner and the public to understand the invention. Drawings fill in the gaps that are left by the text describing the invention.
Invention drawings must be submitted at the time an applicant files his patent application. Adding drawings later is not permitted because the addition of new matter after the filing of a patent application is prohibited by the USPTO.
K. Oath or Declaration
The Oath or Declaration Form must be filed with every patent application. In the Oath or Declaration form, the inventor must declare that he believes that he is the original inventor of the invention claimed in the patent application.
The inventor must also declare that he made or authorized the patent application to be filed with the USPTO. The Oath or Declaration must be made for both utility and design patent applications.
6) Filing a Patent Application
Once an inventor prepares his patent application, he has the option to either file a paper application or an electronic application. Filing an application electronically or online is the quickest and cheapest way to file a patent application with the USPTO. When submitting your application online, you must also pay the patenting fees to the patent office.
7) Keeping Track of Your Patent Application
Once you've submitted a patent application to the USPTO, it's a good idea to track the status of your patent application using PAIR. Pair allows applicants to securely track the status of their patent application online.
It's necessary to periodically check the status of your patent application to ensure that the USPTO has everything that they need to promptly process your patent application.
The patent office often requires changes and/or amendments to be made to a patent application and they often require those changes to be made within a certain timeframe.
As such, it is very important that an inventor promptly replies to such requests to ensure that his patent application is not delayed or abandoned due to not responding on time.
Filing a Provisional Patent Application
Some inventors choose to file a provisional patent application in lieu of filing a regular nonprovisional utility patent application to obtain an early filing date with the patent office.
Obtaining an early filing date for your invention is very important in the US because of the first to file rule that awards a patent to the person who first files a patent application for an invention.
Provisional patent applications are only available for utility patents and are not available for design patents.
Provisional patent applications are often filed because applicants don't have to comply with many of the requirements of a regular utility patent application. Provisional applications are also much less expensive to file than nonprovisional application yet they still reserve an early filing date for your invention.
Patent Rebel Note: You should note that provisional patent applications only last for 12 months. To obtain a patent, an inventor must file a nonprovisional patent application with 12 months of filing his provisional patent application. If an inventor does not file a nonprovisional patent application that claims the early filing date of a previously filed provisional application, the early filing date is lost.
How Much Does it Cost to Get a Patent?
Patents can cost anywhere from $2,500 to $15,000+, depending on the complexity of your invention and the attorney's fees you pay to a lawyer to prepare and file your patent application with the USPTO.
If you want to obtain a utility patent over your invention, you should expect to pay anywhere between $5,000 to $15,000+ to obtain a utility patent. The cost depends on the type of invention you're seeking to protect, as well as the complexity of the invention. The more complex the invention, the more you'll have to pay an attorney to prepare your patent application.
Design patents, on the other hand, typically cost anywhere from $2,500 to $3,500, which is much less than utility patents. The reason why design patents cost less is because they can only contain one invention claim (one design claim). As such, they require less work on behalf of your attorney to prepare and therefore cost less.
Can You Get a Patent on Your Own?
Yes, an inventor has the option to file a patent on his own. In fact, the patent office offers inventors who choose to prepare and file their patent application on their own, assistance with doing so.
That said, both the USPTO and Patent Rebel recommend that inventors who do not have experience patenting their own inventions to hire an attorney to assist them with the preparation and filing of their patent application.
This is so because US patent law is complex and making a mistake could cost you a patent on your invention. There are simply too many requirements and rules that an inventor has to comply with when preparing and filing a patent application. As such, it makes sense to hire an attorney to assist inventors with the patenting process.
So, if you were wondering whether you need an attorney to patent your invention, the short answer is no, you don't need one, but hiring one can make your life much easier and means that you'll get the best patent protection possible.
If you can't afford an attorney, you should consider hiring a patent agent to assist you with patenting your invention. Patent agents are qualified and licensed by the USPTO to assist inventors with all steps of patenting an invention.
Patent agents can assist you with performing a prior art search, preparing your patent application, filing it with the patent office, prosecuting it, and communicating with the patent office on your behalf.
Patent agents tend to charge less than patent attorneys because they have not attended law school, but they are more than qualified to assist you with patenting your invention and dealing with the patent office on your behalf.
Why Should You Get a Patent?
You should get a patent because patents allow patent holders to control who uses, makes, sells, offers to sell, and imports the patented invention to the United States.
No one in the United States can make, use, or sell a patented invention without first having to obtain the patent holder's permission.
This allows a patent holder to control who competes with him. This is especially true if the patent holder's patented invention is the only invention that solves a particular problem or works a certain way.
Utility patents allow patent holders to stop others from making inventions that work or function the same way as the patent holder's invention.
Also, if you have a new and unique design that sets your invention or product apart from others, you can protect the design of your product by also applying for and obtaining a design patent.
Design patents protect the appearance of your product and should obtain one if the appearance of your product is something that your customers look at and like about your product.
How Long Does it Take to Get a Patent?
According to the USPTO, it currently takes 24 months to obtain a utility patent and 20 months to obtain a design patent. The period of time it takes to get a patent is measured from the time you file a utility or design patent application with the patent office.
Patent Rebel Tip: If you want to patent your invention as quickly as possible, the USPTO does offer services that allow inventors to expedite the patenting process. For utility patents, you should consider using Track One. To qualify for Track One to expedite your utility patent, you need to apply for the program and pay an additional fee to expedite your application.
Also, you can expedite a design patent application using Rocket Docket, which allows inventors to expedite their design patent application by paying an additional fee and filing a request to expedite the application. Track one promises to make a decision on your utility patent application within 12 months. Rocket Docket promises to make a decision on your patent application within 12 months, as well. However, there are numerous reports that show inventors who were able to patent their invention within less than 6 months.
How to Get a Patent on Your Invention
At this point, you should know the following:
- What patents protect
- The type of patent you need for your specific invention
- The process for searching prior art
- The steps involved in preparing your patent application
- How much patenting an invention costs
- How long it takes to patent your invention
We hope this article did a great job assisting you with patenting your invention. Please note that this article is meant to offer general legal information. Patent Rebel is not your attorney, so if you need any legal advice for your specific situation, you should contact an experienced patent attorney in your jurisdiction to assist you.
That said, if you have any general questions or comments on getting a patent on your own, please feel free to leave a message in the comments section below.
What is a Patent License Agreement?
If you have an invention that you've patented, you might be wondering whether you can license your product or invention for others to use? The short answer is that you can license your invention to others by executing a patent license agreement. So, what exactly is a patent license agreement? We will answer this question below.
What is a Patent License Agreement?
A patent license agreement is a negotiated agreement between a patent holder and a licensee. Once the parties have negotiated the terms of an agreement, the parties enter into a contract where the patent holder (licensor) agrees to allow the licensee to use, make, sell, or import the patented invention to the US in exchange for an agreed-upon fee.
The terms of a patent license agreement will set forward the scope of rights that the patent holder (licensor) is transferring to the party that wants to use the patented invention (licensee). The licensing agreement typically includes the royalty or agreed-upon fee that will be paid by the licensee to the licensor in exchange for use of the patented invention.
If you are an inventor and you want to license your invention to a third party to profit from your patented invention, you should contact an attorney to assist you with drafting your licensing agreement.
Properly drafting a license agreement is very important to avoid disputes down the road. This is so because the patent license agreement sets forth what the licensee can and cannot do with your patented invention.
A patent license agreement is a legally binding contract where both the licensor and licensee have duties that they must perform according to the terms of the patent license agreement.
As such, clearly laying out what is required by each party is very important because not performing any of the agreed-upon terms will result in a breach of contract. Hiring an attorney to remedy a breach of contract is much more costly than hiring an attorney to properly draft a licensing agreement. So, hire an attorney and have the job done right from the getgo.
Since every situation is different and the parties agree to perform different things, patent holders and licensees should not use premade licensing agreements. Instead, the parties should have an attorney draft a patent license agreement that reflects what both parties have agreed to.
Attorneys often approach drafting a licensing agreement by looking at what the parties want to achieve with their patent license agreement and they take clauses from other agreements and modify them to fit what the parties' have agreed to.
How Much Does it Cost to License a Patent?
A well-written licensing agreement tailored to a licensor and Licensee's specific situation requires three to four hours of an attorney's time, costing between $300 to $1,000, depending on how much your attorney charges you.
You can find a standard licensing agreement for $10 to $50, however, we do not recommend using these unless you have experience drafting licensing agreements.
Patent Rebel does not recommend using a standardized licensing agreement because they are not tailored to your specific situation. For a licensing agreement to be effective, it must accurately represent the agreement between the licensor and the licensee.
Premade agreements are often missing important information that may prove to be very important when the time comes for each party to perform its duties under the agreement.
So, we recommend spending the extra money upfront to hire an experienced attorney draft your patent license agreement to avoid costly legal situations down the road.
How Long Does a Patent License Agreement Last?
A patent license agreement lasts for as long as the parties agree for the agreement to last. The terms of a patent license agreements are agreed upon by both parties, the agreement usually spells out the term for how it will last.
So, if you're curious about how long a patent license lasts, all you have to do is look at the terms of the agreement between the licensor and the licensee.
What Terms Should a Patent License Agreement Contain?
We will cover the most important terms that you'll encounter when licensing intellectual property, such as patents. This list is not comprehensive of everything you'll encounter, but you should know they exist.
1. Type of License
When drafting a patent license agreement, a patent holder must first determine what type of license he wants to give to the other party (licensee). There are two main types of patent license agreements: Exclusive license agreement and non-exclusive license agreements.
An exclusive license agreement is one where the patent holder transfers to the licensee the exclusive right to use, make, sell, and import the patented invention to the United States. Said differently, in an exclusive license agreement, the patent holder transfers all rights to make, use, and sell the patented invention to the licensee.
In a non-exclusive license agreement, the patent holder transfers to the licensee the right to use, make, sell, and import the patented invention while the patent holder retains (keeps) the right to use, make, and sell the patented invention.
Said differently, a non-exclusive patent agreement merely allows the licensee permission to use, make, and sell the patented invention. However, with this type of agreement, the patent holder retains the right to license the use of his invention to others.
2. Payment
Make sure that you or your attorney clearly define the terms of payment. Some of the patent holders we've dealt with have sought an upfront payment in addition to a percentage of the profits or sales. However, make sure that you unpack what percentage of profits or sales means.
You need to add enough detail to flesh out what happens in certain situations, such as when the product is offered at a discount. This is where your attorney will focus most of his attention and you should too because many disputes happen over payment details.
3. Set the Duration for your License
You should perform some research before locking yourself for too long in a licensing agreement.
For example, if you grant a company an exclusive licensee to manufacture and sell a pair of nail clippers that you invented in exchange for a royalty, you want to make sure that you don't lock yourself in a contract with that company for too long because if they don't sell well, the amount of money you make will suffer if they don't make enough sales.
You want to set the duration so that if you're not profiting under your current licensing agreement, you can get out of it to seek other, more lucrative agreements.
At the end of the day, every situation is different. So, if you're confused about how long to set the duration of your licensing agreement, you should contact your attorney and consult with them. They have experience and are best suited to assist you.
Can You License a Design Patent?
Absolutely, yes! You can license a design patent the same way a patent holder licenses the use of his utility patent.
If you have a design that you've patented, you can license it to a third party by drafting a patent license agreement where you and the other party layout the terms of your agreement.
The agreement will layout how the licensee can use your design. It will also layout the fee the licensee must pay in exchange for the ability to use, make, and sell your patented design.
How Do You Create a Patent License Agreement?
You can create a patent license agreement by looking at previously written licensing agreements and using the sections from previous agreements that illustrate the parties' agreement.
If you have a patent that you want to license, Patent Rebel recommends that you hire a skilled attorney to draft a patent license agreement for you. Many disputes arise from poorly drafted licensing agreements.
So, to avoid trouble down the road, hire an attorney and have them draft an agreement that accurately and completely reflects what the parties' have agreed to when negotiating their agreement.
Patent Rebel Frequently Asked Questions (FAQs)
1) How do you get a license for intellectual property?
This article covers licensing patents, but the process for licensing other forms of intellectual property is very similar. The parties need to negotiate a licensing agreement before entering into one. Many parties to choose to hire an attorney to represent them not only in drafting the licensing agreement but also in negotiating the terms of the licensing agreement.
Hiring an experienced attorney is the best thing you can do to protect yourself from the other party. Whether you're the licensor or licensee, having an attorney negotiate the terms of a license agreement is the best thing you can do.
Always look at things as if you're in a dispute with the other party because even though you're not planning on getting into a dispute, life happens and so you should have an attorney carefully draft a licensing agreement for you.
2) What are the four types of intellectual property?
The USPTO offers four types of intellectual property protection: patents, trademarks, copyrights, and trade secrets. You can license the use of any form of intellectual property by executing a licensing agreement that allows a third party to use your IP.
3) What should be included in a licensing agreement?
We have included some of the sections that must be included in every licensing agreement. However, if agreement is different because different parties have different terms that must be included in the agreement. The agreement is made to accommodate what each party wants in exchange from the other party. If you know help drafting a licensing agreement, you should contact an attorney and ask them to draft it for you.
4) What are the types of licensing?
The two main types of licensing that we covered in this article are exclusive licenses and non-exclusive licenses. In an exclusive license, the patent holder transfers all the rights to make, use, and sell the patented invention to the licensee. In a non-exclusive license, the patent holder transfers the right to make, use, and sell the patented invention while the patent holder retains the right to license the patented invention to others.
5) What does licensing your product mean?
Licensing your product usually means that you allow another party to make use of a patent invention, make it, and sell it to others. In exchange for giving the other party the ability to make, use, and sell the invention, a patent holder takes a fee or percentage of the profits for every sale that the licensee makes.
How Long is a Design Patent Good For?
Whether you have a design that you want to patent or you're just curious about knowing how long a design patent is good for, you've come to the right place. The patent office allows inventors of new designs to protect those designs by obtaining a limited-time monopoly over their designs. So, how long does a design patent last for? We will answer this question below.
How Long is a Design Patent Good For?
According to the USPTO, a design patent that is filed on or after May 13th, 2015 is good for 15 years from the date the patent office grants a design patent application. A design patent that was filed before May 13th, 2015 lasts for 14 years from the date the patent office granted the design patent application.
A design patent allows design patent holders to stop others from using, making, selling, and importing a product or article that bears the patent holder's patented design for a limited period of time (15 years) without the patent holder's express permission.
While the patent holder has an active and valid patent, he may be able to sell his patented design without having to compete with others who will use his design because he can stop anyone else from copying and selling his design.
For someone who has a well-known design that attracts customers, having a design patent gives him the ability to control the market and be the only one who's offering an article bearing the patented design, making design patents an important tool for exploiting one's design for profit.
If anyone else uses the patent holder's patented design, the patent holder can bring a lawsuit against them for design patent infringement. If successful, the patent holder will be able to obtain an injunction to stop his competitors from using design. Also, a patent holder may obtain monetary damages he sustained as a result of the unlawful use of his design.
Patent Rebel Hint: An inventor cannot stop others from using his design patent while his design patent application is pending at the patent office. An inventor can only enforce his rights under patent law after the patent office grants his patent application. Once the patent office grants a design patent application, then and only then can a design patent holder begin to restrict others from using, making, and selling his patented design.
Why is filing a design patent application as quickly as possible important?
Filing a design patent application with the USPTO as quickly as possible is very important in the United States because the U.S has a first to file rule that awards a design patent to the first inventor who files a design patent application with the patent office.
For example, if you invent a new design and someone else invents the same design a year later and files a design patent application with the patent office before you do, he will be granted a design patent and you will not be able to patent the design even though you invented it first.
As such, if you have a design that's new and unique, you should file a patent application with the patent office as quickly as possible so that you will be able to obtain an early filing date for your design to prevent someone else from patenting it before you do.
How many designs can you patent?
You can patent an unlimited amount of designs, however, you can only patent one design per design patent application. For example, if you have more than one design that you want to patent, you will have to patent each design using a separate design patent application.
How Long Does it Take to Get a Design Patent?
According to the USPTO, it currently takes 20 months for an inventor to obtain a design patent. The 20 month period is measured from the moment an inventor files a design patent application and the date the patent office makes a decision on the application.
That said, waiting 20 months to patent a design often defeats the purpose of protecting a design since designs often go out of style very quickly. So, can you get a design patent quicker?
Yes, you can patent a design more quickly by using Rocket Docket. Rocket Docket is a service offered by the USPTO that allows inventors of new designs to expedite their design patent application by filing a request to expedite along with payment of a fee.
Rocket Docket promises to patent a design within less than 12 months, however, inventors have reported being able to patent their designs within less than 6 months and in some circumstances in just about 4 months. So, if you have a design that you want to patent, you should ask your attorney about the option to expedite your design patent application using Rocket Docket.
How Long is a Design Patent Valid For?
Design patents that result from design patent applications filed for on or after May 13th, 2015, are valid for 15 years from the date the patent office grants a design patent application.
On the other hand, design patents resulting from design patent applications that were filed before May 13th, 2015, are valid for 14 years from the date the patent office granted a design patent application.
Unlike utility patents, design patents do not require the patent holder to make periodic maintenance fees to keep the patented as granted. Once the patent office grants a design patent application, a design patent lasts until it expires.
What Happens When a Design Patent Expires?
When a design patent expires, the design falls into the public domain, meaning that anyone can use the patented design without having to obtain the design patent's holder's express permission.
This is so because once a design patent expires, the patent holder no longer has rights under patent law to stop others from using, making, and selling the patented design, allowing the public to use the patented design without violating patent law.
Patent Rebel Note: When a patent on a design expires, even though you can use the patented design without violating patent law, you should make sure to check if a different form of IP protection protects the design before using it. If, for example, copyright protection exists on the design, you might violate it if you use the once patented design without obtaining the permission of the copyright holder.
Can a Design be Patented?
Yes, a design can be patented so long as the design is new, unique, and nonobvious. To patent a design the design must have never been patented for and the design must not have been publicly disclosed more than 12 months before an applicant files a design patent application.
To patent a design, an inventor must prepare a design patent application along with several drawings of the design (invention) to be patented. After preparing a design patent application, an inventor must file the design patent application with the USPTO and pay the patenting fees to the patent office.
Frequently Asked Questions
1) How Long is a Patent Valid For?
Design patents in the US last for 15 years from the date the patent office grants a design patent application. On the other hand, utility patents last for 20 years from the date an applicant files a nonprovisional patent application with the patent office.
2) How do you know when a design patent expires?
You can know when a design patent expires by looking at the date the patent office granted a design patent application. You can find the grant date on a design patent, it's on the document itself and you can find a design patent by searching the USPTO patent database or using a patent search database such as Google Patents.
Once you find the grant date of a design patent application, you should do the following: (1) if the design patent was filed before May 13th, 2015, you should add 14 years to the grant date and this will give you the expiration date. If the design patent application was filed on or after May 13th, 2015, add 15 years to the grant date and this will give you the expiration date of a design patent.
3) What is the difference between a design and utility patent?
A design patent protects the appearance of an invention or article, whereas a utility patent protects how an invention works or how it's used (i.e., the function of an invention). Utility patents and design patents are very different, so if you have an invention that you want to protect, you should take the time to familiarize yourself with the differences between the two.
4) Can you get both a design and utility patent on an invention?
Yes, you can get both a design and utility patent on an invention but the invention must be both functional and have a unique design. The design patent would protect the appearance of the invention or how it looks and the utility patent would protect the function of an invention or how the invention looks. To get both a design and utility patent an inventor will have to file both a utility patent application and a design patent application because a single application is not available to get both a utility and design patent.
5) Can a design patent last forever?
A design patent does can never last forever because it is a limited monopoly that patent law specifies only lasts for 15 years, as such every design patent will expire and once a design patent expires, the same design can never be patented again. However, if you have a unique design and the design patent on it expired, you can make improvements to the design so that you make just enough changes so as to create a new design that can be patented again. This is one way you can sort of extend your rights over the design.
