What (is a utility patent)?
Let's start by answering the question what is a patent??
A patent is a document granted by the federal government to an individual or an entity that gives them right to exclude others from making, using, and selling the subject of the patent, i.e., the invention protected by the patent.
What a patent does not do is give the patent holder the right to make the invention. How is this possible? Well, situations sometimes arise where one patent actually contains part of a different invention that is currently under protection by another patent. If this is the case then, while the patent holder may exclude others from making his invention, he must first license the rights to the patented part of his own invention before he can make, use, or sell the invention himself.
A utility patent is the most well-known type of patent, and it protects inventions that are new, useful, and not obvious based on the information and other inventions that are currently floating around in the world. More specifically, a utility patent covers a wide range of inventions including machines, processes, manufactured items, and compositions of matter, such as molecules and formulations.
Who (are utility patents available to)?
In the U.S., utility patents are available to the first true inventor (or assignee of the true inventor) to submit his application to the United States Patent and Trademark Office (USPTO). What this means is that if two individuals come up with the same invention separately from one another, the first inventor to reach the patent office will be given rights over the other inventor. Prior to March 16, 2013, the U.S. system was a "first-to-invent" system (rather than a "first-to-file" system, as it is now), meaning that the timing of the patent application filing was inconsequential and that rights were given to the first inventor to actually construct the invention.
Keep in mind that patent rights will only be granted to a true inventor - people will not be rewarded for ideas that are not their own - and patent rights will only be granted if the invention is new, useful, and "nonobvious."
Why (should I consider a utility patent)?
As we discussed, a patent gives a patent holder the right to exclude others from making, using, or selling the subject of the patent. This limited monopoly over an invention can be very lucrative for the inventor, as it gives him the ability to license his rights to others, usually in exchange for compensation called "royalties." A utility patent gives the patent holder these exclusive rights for up to 20 years from the time the patent application is first filed - assuming that the patent maintenance fees are paid throughout the life of the patent.
Where (and how do I file)?
A patent application must be filed with the USPTO. Patents are only available at the federal level, and patent rights cannot be granted by the states.
The patent process is quite long and tedious - taking roughly two to four years on average. An inventor may file on his own behalf, but many inventors prefer to seek the assistance of a registered patent attorney or agent who has experience in the area and can ensure that the application will be prosecuted correctly.
Typically, what is called a "prior art" search is conducted before the patent application is prepared in order to determine if an invention is actually patentable, and whether the making, using, or selling of the invention will infringe existing patents. If the invention is patentable and it makes financial sense to move forward, the patent application is then prepared and submitted to the USPTO for examination.
When (should I file my application)?
If an inventor makes public use of an invention, offers it for sale, or discloses the invention to the public, then a one-year clock begins where the inventor must submit his patent application for the invention to the USPTO or he will lose his ability to patent the invention forever. If the inventor protects his invention from public use or disclosure, then he could, in theory, wait longer to file his patent application. Of course, waiting is always a risk - the system is "first-to-file," after all, and there is always the possibility that another true inventor will be the first to reach the USPTO.
About the Author:
David "Tyler" Bennett is a business and intellectual property attorney, and he is a partner at Verhagen | Bennett LLP. To learn more about David, please click here.
For questions or comments about this post, please email David directly at: David@VerhagenBennett.com
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© 2017 David T. Bennett — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.