Patents

Definition: A form of protection that provides a person or legal entity with exclusive rights for making, using or selling a concept or invention and excludes others from doing the same for the duration of the 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.

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.

There are actually several different type of patents, but the two following patents are the type 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.

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.

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.

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.

If you're trying to determine if your idea has already been patented, you can have a search 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.

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.

To perform a search on your own, simply find the nearest public library that's been designated as a Patent and Trademark Depository Library. They're staffed with knowledgeable librarians who can assist you in your search. If you want to search online, visit the U.S. Patent and Trademark Office's website. Or search the IBM patent site, which is more comprehensive than the USPTO site--it allows you to do more sophisticated searches and displays drawings of the patented products.

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