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Monthly Archives: April 2017

Guide to Understanding Types of Patents

What Are the Different Types of Patents?

  • Utility patents: These are patents that cover how a product or process functions. For instance, you can get a utility patent to cover your new hair dryer invention. Utility patents last for 20 years.
  • Design patents: A design patent covers how a product looks. It has nothing to do with the product’s usefulness, but you can only get a design patent for a useful product or process. Design patents last for 14 years.
  • Plant patents: If you create a new species of plant, a plant patent prevents other people or companies from breeding it. Like utility patents, they last for 20 years.

The most common types of patents include design (how a product looks), utility (how a product functions), and plant (new plant species) patents. Other types of patents include provisional patents and reissue patents.

You can also get a software patent. This type of patent covers how a computer process works and its desired results. Patent eligibility for software lacks formal definition, so you might need a patent attorney to help decide if your invention is patentable.

There are two types of utility patents:

  • Provisional patent: This patent gives you more time to fully create your regular patent. After you receive a provisional patent, you can call your invention “patent pending.” You have 12 months to file a regular patent application (RPA) after you receive your provisional patent. The cost of a provisional patent can vary greatly. A small company can file their own provisional for around $100. While a much more involved application with great detail can cost several thousand dollars.
  • Regular utility patent: This is the actual patent that remains in effect for 20 years. When you receive a regular utility patent, your invention moves from being patent pending to being patented. When the patent expires, you can pay maintenance fees to reinstate it.

You’ll also find different types of patent applications, including the following:

  • Reissue application: You must file a reissue application if your existing and unexpired patent becomes invalid or defective for some reason. This application should contain the same scope of information as the original patent.
  • Divisional application: A patent examiner from the U.S. Patent and Trademark Office (USPTO) can ask for a divisional application if an invention includes more than one patentable part. Each patent application must cover just one invention.
  • Continuation application: If you need to add new matter to a patent that hasn’t been abandoned or approved, you can submit a continuation application. It allows the patent examiner to take new information into account.  There are strict rules against the addition of “new matter”. The rules pertain to circumstance when a person attempts to add new matter to a patent application that was already filed.  Adding new material as well as new information when you are filing your application is completely acceptable.  You will be given an updated filing priority date when the continuation-in-part patent application is filed. The new date will only apply to the new matter. A continuation-in-part application is a patent application filed during the lifetime of an earlier non-provisional application, repeating some substantial portion or all of the earlier non-provisional application and adding matter not disclosed in the said earlier non-provisional application. If any rejections exist for a non-provisional application, filing a continuation-in-part doesn’t assume that the applicant is complying or accepting those rejections. The continuation-in-part has nothing to do with anything related to any denials of the initial non-provisional application.

Each type of patent has its own set of requirements. After you file your patent application, the USPTO will assign a patent examiner. He or she reviews your application forms and compares them against current patents.

Utility patents are the most common type of patent. However, design patents prove cheaper to get, so inventors often start with them.

Why Do You Need to Know the Different Types of Patents?

If you want to protect an invention, you need a patent. Otherwise, someone else can make the same product and sell it. A patent protects intellectual property. It also allows inventors to create unique new products and processes, which can help boost the economy.

However, since different types of patents exist, you’ll need to know which type to file. If you file a design patent application for a product’s usefulness, the USPTO will deny the application. Often times, a utility patent and a design patent are enough to provide the necessary patent protection. Filing both a utility patent and a design patent application could prove beneficial if your invention is unique in its structure and its function in addition to being a one of a kind design.  The added benefit is that a utility and a design patent application will mark your invention as “patent pending” at the Patent Office.   You are urged to discuss the path that best suits your particular situation prior to moving forward.

You also need to know about the requirements for each type of patent:

  • Design patents: The USPTO grants design patents for designs that prove original, unique, and novel. The design must also apply to a product that consumers can use. For instance, you can’t patent a painting or a sculpture that has no use. However, you can copyright those items.  While design patents are much easier to acquire, they are nearly impossible to enforce and they typically have no substantial worth.  Placing a design patent on file will cost around $1,000. You should additionally plan on around $2,500 to get through issuance.
  • Utility patents: You can get a utility patent as long as your product’s usefulness is unique and non-obvious. The claim in the patent must relate to the way the product works. The cost of a utility application ranges from $7,000 to $10,000. These fees cover the search, draft and filing with the patent office. You should plan on an additional $10,000 – $15,000 to get through issuance.
  • Plant patents: The USPTO approves plant patents for plants that have never existed or been found before. The plant must reproduce asexually, and the new plant species must be unique. The fee to place a plant patents on file is roughly $1,000. Additionally, plan on another $2,500 or more through issuance.

The USPTO demands detailed information when you file for a patent. For instance, you must create drawings, usually in black ink, that illustrate an invention’s design or utility. Other documents needed include the following:

  • Claim: Each patent needs a single claim. It should state the invention’s purpose or unique design in simple words.
  • Title: Use common words to title a patent. Titles usually have just one or two words that consumers would recognize, such as “bench,” “washing machine,” or “belt.”
  • Specification: The total written and illustrated contents of a patent application.
  • Cross reference: This document claims priority for your patent. You must list current patent applications.
  • Disclosure: If you used federal or sponsored money for your invention, you must let the USPTO know.
  • Background: You can write a simple description about how the invention came about.
  • Figures: Label your drawings with figure numbers. In a document, label each figure with simple wording.
  • Abstract: You can also offer a document that summarizes the whole application.

You must also learn what your patent protects. If you get a patent on your invention, you’ll need to know how to defend it. If you know the types of patents and their definitions, you can do more detailed research.

When Should You File for a Patent?

You don’t have to file for a patent, but you should if you want to protect your rights to your invention. If you decide you want a patent, you should file as quickly as you can. The USPTO issues patents based on the “first to file” standard. In other words, even if you created an invention first, if someone else files for a patent on the same invention before you, they will get the patent.

Also, patent applications can take a long time to get approved. The average pendency is 28.1 months, though some patents get approved within as few as 18 months.

When Should You Not File for a Patent?

If your invention won’t qualify for a patent, don’t waste time and money on filing. You can ask a patent lawyer to help you decide whether your invention meets the USPTO’s standards.

You might also want to delay filing for a patent if you’re not sure your product can perform commercially. Many great ideas never lead to actual products on the market. You may not want to waste money on patenting an idea that you’ll never use to make money.

Do a patent search before you file a patent, too. A patent search looks for other patents that might prove similar to your invention. You can hire a patent lawyer to do a patent search, or take the DIY approach.

Examples of the Types of Patents

  • Design patents: Apple has gotten patents for many of its products. For instance, the company has filed design patents for its unique iPhone.
  • Utility patents: The casino table game is a good example of a utility patent. Ask any patent attorney in Las Vegas and they will tell you some of the most interesting ideas come from new table games.
  • Plant patents: Several variations of the poinsettia plant have gotten patents.

Common Mistakes

Try to avoid the most common mistakes that deal with types of patents, including these:

  • Wrong patent: Don’t file for a patent unless you’re sure it’s the right one. Ask a patent lawyer to help if you’re at all confused.
  • Too many claims: You can only file a single claim with your patent application. You can get more than one patent for an invention, but each patent must cover a single part of that invention.
  • Broadness: Don’t file for any type of patent if the descriptions are too broad. You might attract patent trolls, people who buy patents from other companies and sue other businesses for infringement.
  • Waiting to file: After you offer a product for sale, the USPTO gives you one year to file a provisional or non-provisional patent. If you wait longer, you can no longer get a patent for that invention.
  • Public use: The USPTO also sets limits for public use. If you display your invention, you have 12 months to file for a patent.
  • Poor application: Even if your application has merit, the USPTO might deny it because it doesn’t have the right information. Always work with a patent lawyer or agent to make sure you submit a sound application.

Frequently Asked Questions

You might have questions about the different types of patents, such as these. You can also ask your questions to an experienced patent attorney in San Francisco on UpCounsel since they have likely heard and answered many of these already:

  • Why are patent filings complicated?

The USPTO wants to help inventors protect their intellectual property. To do so, it needs as much information as possible. The USPTO needs to protect the inventor who files a patent as well as anyone else who has filed a similar patent.

  • Why does the patent-filing process take so long?

The USPTO gets many applications each month. Examiners can only review so many in a given time period, which creates a backlog. Filing sooner will help you get your patent faster.

  • Do small businesses need patents?

If you own a small business, you might want to hold off on patenting an invention for it. Small business patents can help protect your brand and market share, but they can also deplete your budget. Ask a patent lawyer to help you make these critical decisions.

Steps to File

The steps you take to file a patent depend on the type of patent you need. Utility patents often need more documents and information. Design patents depend more on drawings than words.

You can file your patent electronically through the USPTO website, uspto.gov. It’s the fastest way to get your information into the system.

If you’re ready to file a patent and you understand the different types of patents, start collecting information. Use an UpCounsel job posting to find a patent lawyer who can help you through the process.

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How to Get a Patent

Want to Get a Patent for an Invention?

You’ll need to follow these steps to get a patent.

In order to understand how to patent an idea, you will first need to determine that you have a patentable idea. Then you must file an application to get a patent via the U.S. Patent and Trademark Office (USPTO).

1. Do you know what type of patent you need?

You can get several different kinds of patents. It’s important to decide what type of patent is the right one for you.

Examples of common types of patents are:

Utility Patents

Utility patents are the most common type of patents that cover a wide range of categories. To protect the way something is used and how it works, you should get a utility patent. A utility patent would cover a machine, product, a process, or a composition of matter.  

A new kind of biofuel burning car engine or a mind powered hand tool are examples of inventions that would require a utility patent.

Design Patents

A design patent relates to the shape or design embodied in or applied to an article of manufacture. If you are creating a new ornamental feature to an item, you will need a design patent.

Suppose you have manufactured a new computer with a brand new shape that exists for the first time. You could obtain a utility patent for the computer (a machine), and a design patent for the new ornamental feature (the new shape).

Plant Patents

Anyone who discovers or invents and asexually reproduces any distinct and new variety of a plant can get a plant patent. Asexual reproduction is the multiplication of the plant without using genetic seeds while assuring that the genetic copy of the plant may be employed. However, the plant cannot be found in an uncultivated state for this to be valid.

For more information on the topic, visit the United States Trademark and Patent (USPTO) website to see a list of the many accepted modes of plant reproduction. Once a plant patent is granted, it will last for up to 20 years from the date of filing the application. This way the patent holder can exclude others from reproducing, selling or using the plant in any way.

Software Patents

These days, the most effective method of protection of original computer software is to get a patent for it. A software patent must have the same criteria as all patentable material in order to be protected.

The software must be useful, novel, and nonobvious to someone of ordinary skill in the computer software field. Since computer software is a fairly new process, it’s especially hard to define what the non-obvious element of a software patent should be.

A software must also fall into one of the following patent classes: utility, design or plant. Increasingly a software is being described as a collection of processes or as a machine, so it would fall into the utility class of patents.

2. Decide what type of patent application will need to file for.

Do you need to get a provisional patent, non-provisional patent, or international patent?

Filing for a Provisional Patent in the U.S.

A provisional application is quite different from a non-provisional patent application.  The distinction between a provisional patent application and a non-provisional patent application came about in 1995 when the USPTO first allowed the filing of provisional application.

One of the bigger differences is that the formalities of a non-provisional patent are not necessary in a provisional patent. A provisional patent allows you to put a “patent pending” label on your invention and saves you a spot in line to file for a non-provisional patent. This allows you to hold your spot in line for a one year time frame to figure out if you would want to move forward and file a full non-provisional patent in the future when and if you desire to.

A smaller difference has to do with specific parts of patents such as trade secrets, which will not be released when applying for a provisional patent.

Filing a Non-Provisional Patent in the U.S.

Depending on the type of patent, a non-provisional patent is a standard patent that protects an invention within the U.S. for 14-20 years. Detailed descriptions are required for this application, including a description that would allow another ordinary person to recreate your invention.

The challenge when creating a non-provisional patent lies in the specifications drafting. Stronger patent applications have highly skilled lawyers draft the details on top of creating patent drawings to express a more thorough description.

Filing for an International Patent

Under the Patent Cooperation Treaty (PCT), an international agreement with several countries, an inventor may file a single international patent application in order to seek protection for an invention across any country that has signed the agreement. The World Intellectual Property Organization has a list of every country that has signed this agreement.

Need help with getting a patent?

Post a Job on UpCounsel and Connect with a patent attorney who can help you get a patent and answer any questions you have today about how to get a patent for your invention.

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