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Patents

A patent is a form of intellectual property consisting of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. In the U.S., and many foreign jurisdictions, a patent enables a patent holder to protect the structure and /or functionality of inventions that are new, useful and not obvious.

There are two types of patents that are of potential interest to most businesses: utility patents and design patents.

Utility patents are the type of patent that most people think of when they hear the word “patent”. Such patents can relate to one or more of four types of inventions:

  • Processes – for example, manufacturing processes or processes implemented using computer software.
  • Machines – for example, mechanical devices or electronic devices. Machines typically have parts which often dynamically interact with one another.
  • Articles of manufacture – for example, ceramics, cast metal articles, simple tools. Articles of manufacture may have parts, but any interaction among the parts is usually static.
  • Compositions of matter – for example, alloys, drugs and chemicals.

Design patents relate to ornamental designs for objects such as articles of manufacture and machines, which can include the appearance of user interfaces for computer software. Put another way, utility patents relate to how something works, whereas design patents relate to how it looks. It is not uncommon for an articles of manufacture or machine to be eligible for both utility and design patent protection.
For an invention to be eligible for patent protection, it must be:

  • New – no one else has publically revealed or filed for a patent for the same invention.
  • Useful – the invention has to serve some purpose, even if such purpose is not particular earthshaking such as, for example, decoration or entertainment.
  • Non-Obvious – the invention is not an obvious modification of a preexisting invention or combination of preexisting inventions (this is usually the most difficult hurdle).

Unlike trademarks, copyrights, or trade secrets, patent rights do not automatically accrue by the conception, testing, or use of an invention – the inventor or his or her assignee must file a patent application.
This is an imprtant point. In the past, under U.S. patent law, the first person to conceive of an invention could claim patent rights in the invention. Under current law, however, the first person or entity to file a patent application for an invention will have any patent rights the invention, whether they were the first or the tenth person to conceive of the invention.
Thus, it is critical to file patent applications on an invention as soon as possible. The USPTO provides a low-cost option for inventors to file a patent application on an invention to firmly establish a filing date: provisional patent applications. For $65-$130 in USPTO fees, an inventor can file any available documents relating under a cover sheet to establish a filing date. The provisional patent application is good for one year, after which it expires. The provisional patent application must be followed by a full application within one year.
If an invention was in use or was publically disclosed before any patent applications were filed, the invention may be barred from patent protection. If you believe this is the case for your invention, you should consult a qualified patent agent or patent attorney to discuss your rights. Do not delay if you are interested in obtaining a patent.
Once you have obtained a U.S. patent, you can prevent anyone from making, using, selling or importing your invention in the U.S. or inducing or encouraging anyone else to do the same. This is powerful protection, and can be very valuable. While the cost of obtaining an issued patent typically falls in the range $5,000-$10,000, the value of patents can, and occasionally do, run into the hundreds of thousands.
Note that U.S. patents are only enforceable in the U.S. If you have a substantial market for your invention overseas, you may wish to file for foreign patents. This can be costly, but may be an essential protection your business needs.

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