If you invent something—whether it's a lifesaving drug, an electronic device, or a new machine—you will likely want to profit from that invention. But once you take the invention to market, selling it to the general public, you risk having competitors attempt to copy it. Fortunately, patent law offers a way to prevent that from happening, by providing a legal monopoly over your invention for a limited time period (typically 20 years). Let's take a closer look at what patents are, and how they provide this important protection.
Broadly speaking, a patent is a property right granted by the U.S. federal government that allows the holder to exclude others from making, using, offering for sale, or selling the protected invention. The exact language and terms that apply in the United States are found in the Patent Act. And the federal agency that manages the process for granting or denying these applications is the United States Patent and Trademark Office (USPTO).
Only the inventor can apply for a patent for the invention. If two or more collaborators were involved in developing an invention, they must apply jointly for patent protection. A patent can, however, be transferred to another party by a written agreement.
In order to qualify for patent protection, an invention must be "novel." That means that if it's already known or in use by others in the U.S. or in a foreign country before having supposedly been invented by the patent applicant, it won't qualify.
Similarly, if the invention has been described in a printed publication in this country or a foreign country prior to having been invented by the patent applicant, no patent can be granted. Put differently, if information about the invention is already public, you cannot claim a private monopoly over it through a patent; this is part of the "novelty" requirement.
This is so even if the patent applicant was the first to invent it and is the person who has described it in the publication or been using or selling the invention.
Practically speaking, what this means to an inventor is that the invention must be kept relatively secret prior to applying for a patent. An inventor cannot, for instance, put an invention on the market for over a year and then seek patent protection for it. At that time, it's too late. Also see How to Protect Your Invention From Theft When Pitching It.
There are three types of patents that the USPTO may grant depending on the nature of the invention: utility patents, design patents, and plant patents.
Utility patents, which are by far the most common, are granted to any person who invents or discovers any new and useful process, machine, manufacture, or compositions of matter, or any new and useful improvement thereof. "Process" as used in the patent statute primarily refers to technical processes. The term "manufacture" refers to all manufactured articles. "Composition of matter" refers to chemical compositions.
In addition to utility patents, design patents can be issued for instances of new and unique design of an article of manufacture.
Plant patents—which are fairly uncommon for average people to apply for—are granted for asexually reproduced, non-tuberous plants.
If the item you wish to patent does not seem to fit into any of the categories described, perhaps a patent is not the appropriate form of protection. Literary, dramatic, musical and artistic works are normally protected by copyright. Trademarks provide protection for distinctive names, phrases, symbols, or signs that are used to identify and distinguish the source of a particular product. Patents are specifically for inventions.
If you believe that a patent is necessary to advance your business, you will need to begin the application process. Remember, patent applications are closely scrutinized; they can take months or even years to be approved by the USPTO, depending on the nature and complexity of the invention.
Although you do not necessarily need an attorney to register a patent with the USPTO, it could be helpful to speak with one who's experienced in intellectual property law. Unfortunately, patent registration can sometimes be a time-consuming and technical process. Learn more about the patent registration process on the USPTO's website.