What is Patent Protection?

Patent protection allows the inventor of a new product or design to have exclusive rights to make, sell, use, and/or import the item throughout the United States. No other company or individual can make, sell, use, or important an item that is identical or even very similar. If another company or person does infringe on the patent protection, laws allow the patent holder to sue for infringement.

There are three types of patents:

  • Utility
  • Design
  • Plant

Utility patent protection covers the function and operation of an invention, while design patent protection is on the ornamental design of a product. Plant patents are rare and only cover a distinct new variety of plant that can be asexually reproduced.

In order to qualify for utility patent protection, an idea must be novel, non-obvious, and useful. Novel means that the idea is different from all other previous ideas, referred to as prior art. If you released any information about your idea more than 12 months before you file a patent application, your own information about the invention would qualify as prior art and would eliminate your chance to file for patent protection.

Non-obvious means that someone skilled in the industry in which your idea will be used would not immediately come up with the same idea. It must be surprising and unexpected, even to those working in the industry, in order to qualify under the non-obvious requirement. For many inventors, this requirement is the most difficult and subjective of the three.

Useful means that the idea provides some practical benefit for real-world users. In order to qualify as useful, your idea must work, which means you'll have to produce a working prototype to prove it. It's difficult for those in the pharmaceutical industry to obtain patent protection on new drugs that haven't been tested since the usefulness would not have been proved.

Neither design nor plant patents require the inventor to show usefulness.

A patent holder may have the right to license the product or design to others, but this is at his/her discretion. Over seven million patents have been issued in the U.S. When working on a new idea, an inventor should think about patent protection throughout every step of the design, manufacturing, and production process. Before talking about your idea with anyone, make sure you know how you want to proceed in terms of protecting it from other use.

The current marketplace for products and distribution is very competitive, and larger companies often have the advantage because of cost-cutting strategies for lower prices and options that smaller companies or inventors cannot access. Some companies even have to merge with one another to keep up with the competition. If you come up with a great idea, you need to protect it as soon as possible to prevent these bigger companies from pushing you out of the market and taking your product or design.

In the past, patents weren't as necessary to protect intellectual property. But major companies have resources to file for hundreds or even thousands of patents, so they can quickly take your idea and secure patent protection on it if you don't start the process first. For example, IBM received 1,800 patents in 1997, and in 1998 the number increased to 2,700 patents. This computer company had to protect its innovative ideas, and filing for patents is the most cost-effective and best strategy to do so. With thousands of patents, IBM enjoys protection on each of those ideas for 20 years.

It's nearly impossible to prove who came up with an idea first, so the United States Patent and Trademark Office (USPTO) usually gives preference to the applicant with the earlier filing date.

Why is Patent Protection Important?

The purpose of patent protection is to allow inventors to be the exclusive manufacturer and provider of his/her invention. With patent protection, you can maximize your earning potential by licensing the idea to others or simply making it yourself. Patent protection is one of the best ways to increase the profit margins on a product, since it limits others from making something identical or even very similar.

Thanks to social media and online resources, many inventors turn to the general public for investments rather than approaching venture capitalists or other traditional investors. But before you launch a crowdfunding campaign, make sure to file for patent protection first. Millions of people could see your campaign in a short period of time, making it much more difficult to be the first to file for a patent.

Reasons to Consider Not Using Patent Protection

The main reason that inventors choose not to use patent protection is the cost to file for a patent. Even preparing and filing the application yourself requires paying an application fee, which varies, based on the size of the company. You will have to include detailed drawings done in the exact required specifications, and most inventors outsource these drawings to artists who have worked on patent drawings before.

If you receive a utility patent, you have to pay maintenance fees several times over the 20-year patent term to keep it in effect. Design patents do not require maintenance fees, but the term is 15 years. Hiring a lawyer to help draft and submit your patent application is smart, but this comes with a cost as well. Many new inventors don't have the money to file for patent protection.

Another reason you wouldn't use patent protection is if your idea isn't patentable. Some inventions are too generic to qualify for patent protection, and others are too similar to prior art, or items that already hold patent protection. Some unpatentable ideas and processes include:

  • Anything done entirely by human motor coordination (choreography, methods for practicing meditation).
  • Drugs that aren't safe.
  • Methods and protocols used for performing surgery.
  • Inventions that are inoperable (perpetual motion machines).
  • Inventions that will only be used for illegal acts or purposes.
  • Printed materials that have no unique structure or physical shape.

Going through the patent process is also very time-consuming. It can take several years before your application even comes up for review with the USPTO.

Reasons to Consider Using Patent Protection

Without patent protection, you hold no legal rights to your invention. And worse, if someone else files for patent protection on your idea, you will no longer be able to make your invention without infringing on that patent. Updates to U.S. patent laws in 2011 changed from "first-to-invent" protection to "first-to-file." This meant that inventors had to file for protection immediately to avoid losing the opportunity to patent their ideas.

Deadlines

When filing for patent protection, you must file within 12 months of releasing your idea to the public. There are two options for patent applications:

The provisional patent application is easier to complete, is less expensive, and has fewer requirements and restrictions. In fact, the USPTO doesn't even review provisional patent applications. The process of submitting one simply extends the period in which you can still qualify for patent protection. After submitting a provisional patent application, you have 12 months to file a nonprovisional patent application on the same invention. If you don't, the provisional application will expire and you will not have any patent protection on your idea.

What Could Happen When You Use Patent Protection?

As soon as you file an application for a patent, you can legally refer to the patent pending status on marketing materials, ad campaigns, and on the product itself. You don't have to share that you have a patent pending with customers or competitors, although doing so can deter competitors from trying to copy your idea.

When you have patent protection on your idea, you have the legal rights to produce and profit from that product. You can license the idea to others and make money that way or keep it all within your company to maximize profits.

What Could Happen When Don't You Use Patent Protection?

Patent protection is the only way to restrict the manufacture, production, licensing, and sale of your invention. Without a patent in place, anyone can create an identical or similar product without any legal repercussions.  

Some inventors choose to delay filing for patent protection until they determine whether the product will succeed in the marketplace. But because of the changes to U.S. patent laws, this is a risky move. If someone else files first, he or she will likely get the protection instead of you.

If you do choose to delay submitting your patent application, make sure to keep your idea out of the public eye until you are ready. If you develop the product or work on your idea with anyone else, have everyone involved sign a nondisclosure agreement to keep the information confidential.

Frequently Asked Questions

  • What qualifies for patent protection?

A number of things qualify for patent protection. These include:

  • New methods or processing for producing items or concrete results.
  • Articles of manufacture 
  • Machines 
  • Compositions of matter 

An improvement that is significant enough within any of the four categories may also qualify for patent protection. Computer software would also fall under the first category for patent protection.

  • What are the types of patents?

The three types of patents are utility, plant, and design.

  • How long does it take to get patent protection on my idea?

The process to obtain patent protection can take anywhere from several months to several years. The USPTO has an extensive backlog of utility patents, so these typically take the longest.

Steps to File

The first step in filing for patent protection is submitting the application to the USPTO. Make sure to choose the appropriate application for the type of patent you wish to obtain and include all required documentation and drawings to avoid delays. You can submit your application on the USPTO website or mail it to the office.

Upon submission, you will receive a patent pending serial number that allows you to check the status of your application. Don't expect to hear back right away; most applications take 18-24 months before they go to a reviewer. But you can start using "patent pending" on all of your materials.

If you receive approval for your patent protection, replace "patent pending" on any materials and the product itself with your actual patent number. If your application is denied, you can go through the appeal process.

If you need help with patent protection, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.