Patent BasicsLast Updated: June 18, 2018
A patent is a government-issued right that allows the patent holder to exclude others from using the patent. If the patent holder’s rights are violated, they can sue the infringer in civil courts. Some call this a government-granted monopoly to your innovation.
Governments grant patents in exchange for the inventor’s clear and detailed public disclosure of the invention. You therefore have to affirmatively apply for a patent and make a full public disclosure of your patent with the patent office to obtain a patent. Without a patent right granted from the United States Patent and Trademark Office (“USPTO”), you do not have the right to exclude others from using your invention.
What isn't patentable?
- Something that is not new or useful.
- Useful (sometimes called the utility requirement) means that the patent must have some useful purpose. The bar for this is low.
- New, or novel, means certain public disclosures have not been made inventions prior to the filing date. Specifically, an invention is normally not patentable if any of the following happened prior to the inventor filing for a patent: the invention was publicly known or otherwise available to the public (either through sale, public use or otherwise); the invention described in a printed publication anywhere in the world; or the invention was described in published patent application (in the US or PCT countries or issued patent anywhere in the world.
Please note that the above statements are generalizations, there are exceptions. There is, however, an exception for disclosures made by the inventor up to 12 months prior to filing of the patent application. See disclosure grace period.
Among other capabilities, LOCIsearch helps inventors determine if their invention is new or novel through our innovative search process. Loci’s search engine contains every patent filed and patent applications in the US and PCT. Our plan is to continue to increase our search capabilities, so keep checking back.
- “Laws of nature, physical phenomena, and abstract ideas” cannot be patented.
- You cannot patent laws of nature and products of nature. For example, a pharmaceutical company tried to patent a method using metabolism rates for a drug to modify the dosage of the drug. The Supreme Court found that unpatentable because the patent was seeking to monopolize a correlation that is a law of nature.
- Mathematical algorithms and mere ideas are also not patentable. You cannot for example, patent the concept of gravity. The Supreme Court struck down a patent that described hedging and another that described a computer-assisted settlement process on the grounds of abstract ideas.
What's a provisional patent?
While in itself it is not an issued patent and a provision patent application does not become a patent, it serves four important purposes:
- It locks in your priority date for your patent. The United States (along with the rest of the world) is a first-inventor-to-file patent system so a provisional patent saves your place in line for your patent. This is its most important use.
- You can lock in your priority date but keep working on your patent.
- It is less formal and cheaper to file than a patent. While your job is still to completely describe your invention, you do not need to list your claims or take an oath at the time of filing it. And it costs between $50-$200. Drawings are required if they are necessary to understand the invention (this translates to drawings are almost always required).
- You can start using the phrase “patent pending” when discussing or in labeling your invention.
To obtain actual patent rights, you need to follow a provisional patent with a full patent application within 12 months.
What are the downsides of filing a provisional patent application?
- If you miss the 12 month window to file an actual patent application, absent extraordinary circumstances, your patent rights are gone.
- The description of your invention in a provisional patent must be as complete as a normal patent application. A poorly drafted provisional patent will not save your priority date and might even be used against you.
- In short, a provisional patent should be written to fully disclose your invention in a way that a person of ordinary skill can understand it and make use of it.
The parts of a provisional patent are:
- Background of the Invention
- Summary of the Disclosure
- Brief Description of the Drawings
- Detailed Description of the Invention
- Claims (not required but may be advisable)
You can find examples of provisional patents here.
How long is a patent good for?
Most patents are enforceable for 20 years from the date of filing, including utility patents. Design patents are good for 14 or 15 years from the filing date. There are other factors that go into this answer that are beyond the scope here, like if a provisional patent was filed. See What’s a provisional patent?
What is the USPTO?
The U.S. Patent and Trade Office (USPTO) is the official governing body for all patent and trademark issuance in the United States. From the time of its inception in 1802 up until 2011, the system in the United States was known as a ‘first-to-invent’ system. This was advantageous in part because it rewarded the individual who actually invented the idea, as opposed to the person who may not have invented but was able to file a patent application first. However, the first-to-invent system was disadvantageous to the the process of innovation due to the incredible backlog of patents awaiting approval and costly and complex litigation known as interference proceedings in which inventors fought to demonstrate precedence and efforts to bring their inventions to complete patent applications or working prototypes.
Beginning in September 2011, the USPTO changed over to a system known as ‘first-inventor-to-file’ which changed the landscape significantly for innovators across the country. This new system was different in that it helped to align the US system to the systems used in the rest of the world and it changed the invention precedence standard with the intent of creating greater certainty regarding patent rights. Despite this recent change in filing system, the patent process through the USPTO still takes MANY years and costs THOUSANDS of dollars to complete. The process is inefficient and stifles progress and innovation.