Property Rights

Patents

What is a patent? A patent is a grant of protection for an invention. It's granted by the U.S. Patent and Trademark Office (PTO) and has a term of 14 to 20 years. Owning a patent gives you the right to stop someone else from making, using or selling your invention without your permission.

Who can apply for a patent? Only an inventor may apply for a patent on his or her idea. If two or more people participate in the creation of an invention, the law requires that all participants apply for a patent as joint inventors. A person applying for a patent on an idea he or she did not directly invent is subject to criminal penalties and invalidation of the patent, if one was issued. A person making only a financial contribution to an invention can't be named as a joint inventor.

Are there different kinds of patents? Yes, and the following are the two types of patents that entrepreneurs use most often:

A design patent provides protection on the appearance or ornamental design of your invention. It is generally cheaper, simpler to file and more easily accepted by the PTO than other types of patents. However, its overall protection isn't as effective as a utility patent because the invention's design can be changed many times, thus helping others who want to use your design avoid patent infringement. Its term is 14 years.

A utility patent protects the function or method of your invention. This patent is more complicated than a design patent because it requires you to explain how your invention is used. A utility patent is usually more expensive to obtain, requires more input from an attorney, and is more difficult to have issued by the PTO. Its protection is greater than that of a design patent, however, because patenting a method or function provides stronger, broader coverage. A person trying to make a product similar to your patented one must avoid all the claims of your patent. The utility patent's term is 20 years. Most inventions can be filed as a design patent, utility patent or both.

Is there a test to determine whether my invention is patentable? Yes. To receive a design patent, your invention must pass these tests:

  • It must have a new, original and ornamental design.
  • The novel features of your design must not be obvious.

To receive a utility patent, your invention must pass four tests:

1. Statutory-Class Test: Your invention can reasonably be classified as a process, machine, manufacture, composition or a "new use" of any one or more of these classifications.

2. Utility Test: Your invention is considered useful.

3. Novelty Test: Your invention has a feature that sets it apart from previous inventions and is unknown to the public.

4. "Unobviousness" Test: Your invention's novelty must not be obvious to someone who has ordinary skill in the area of your invention. For example, if your invention is a hairbrush, the uniqueness of its design must not be obvious to someone who uses a hairbrush every day.

How do I know if my idea has already been patented? A search can be performed on all existing patents. This patent search will tell you whether other patents have already been issued that may disclose or suggest your invention. You can perform a patent search on your own, use the Internet or hire a patent researcher.

To perform a search on your own, simply find the nearest public library that has been designated as a Patent and Trademark Depository Library. They are staffed with knowledgeable librarians who can assist you in your search.

If you have Internet access, you can use two Web sites to perform a search. The first site is http://www.uspto.govThis site is sponsored by the PTO and allows you to search existing patents. The second site is http://www.patents.ibm.com, which is maintained by IBM and is more comprehensive. It allows you to do more sophisticated searches and displays drawings of the patented products.

You can find a professional patent searcher by looking in the Washington, DC, Yellow Pages under "Patent Searchers." These people actually go to the PTO search room where the most current information is available. This type of search is the most accurate, although it can be expensive. Average fees for searches start at $200.

How do I know if a product on the market is patented? Products marked with a "patent pending" or "pat pend" have patents filed with the PTO that have not yet been issued. When you see a product with the legend "patent" or "pat" followed by the patent number, this product has received a patent from the PTO.

Where do I file a patent application? The Assistant Commissioner for Patents, Washington, DC 20231.

How can I get more information? Call (703) 308-4357 or (800) PTO-9199.

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This article was originally published in the January 1999 print edition of Entrepreneur with the headline: Property Rights.

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