An overview of United States patents and patent law

A United States patent is an exclusive right granted by the U.S. government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the U.S. Essentially a patent represents a government granted monopoly over the invention. The monopoly lasts for the limited term of the patent, generally 20 years. The primary purpose of the U.S. patent process is to further and foster the advancement of innovation. Thus, if you file a patent application and/or are issued a patent by the United States Patent and Trademark Office (“USPTO”), the patented invention must be disclosed in a manner that allows others skilled in the art to understand how to make or perform the invention, and any patented inventions, including, devices, goods, software, or other methods and processes, will be open for the public’s eye, even if not available for the public’s use.

As a right to exclude others from the invention, patents are also a form of intellectual property that a person or entity may own, transfer and license, and thus, is a property right you possess. As with almost all property rights (such as tangible property like cars, houses, books, or computers) the holder of a property right can sell, lease/license, or otherwise dispose of or grant rights in or ownership of a patent.

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Types Of Patents

There are three types of patents: utility, design, and plant patents. Each is unique and carries different requirements in their application process.

A utility patent is governed by Section 101 of Title 35 of the United States Code. In general, a utility patent is awarded to an inventor who provides an invention which creates a new and useful process, machine, item, method, device, code, or chemical, or any new and useful improvement to one of these objects.

A design patent is governed by Section 171 of Title 35 of the United States Code and involves the design embodied in or applied to an item or invention, and not to the invention itself. These types of patents involve the ornamental, aesthetic, or configuration of inventions. Thus, a design patent is focused on the mere appearance of the object and is quite different from the utility patent that is the most typical patent type.

The final type of patent is called a plant patent which is governed by Section 161 of Title 35 of the United States Code. This type of patent involves vegetative (living organisms) plants. An inventor may obtain a plant patent where he has invented or discovered and asexually reproduced a unique, distinct, and new variety of plant.

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Provisional And Non-provisional Patent Applications

Further, utility and plant patent applications are divided into two different types: a provisional and a non-provisional.

A provisional patent application is an expedited and less expensive way for inventors to establish a filing date for their invention with the USPTO. The filing fee is less than for a non-provisional patent application, and the cost to prepare a provisional patent application is often less. A provisional patent application is not acted upon or reviewed by the USPTO and must be converted to a non-provisional patent application within twelve months, or it will be deemed abandoned.

A non-provisional patent application is an application filed with the USPTO, which is intended to be a full and complete application that is ready for review and consideration by the USPTO. It can be filed directly without being preceded by a provisional patent application, or it can be filed as a conversion of a provisional patent application if it is filed within 12 months of the original provisional application filing date. If the inventor converts a provisional patent application to a non-provisional application during the provisional application’s 12 month period, the provisional application’s filing date will be the non-provisional application filing date. This is important because ownership and priority of property rights are closely related to the filing date.

When a non-provisional patent application is submitted to a patent examiner for review, the examiner will inspect the patent and determine whether all of the requirements for patentability are met. If these requirements are satisfactorily met, the patent examiner will issue a notice of allowance for the non-provisional patent application. After that, if the inventor or his or her assignee follows the necessary procedures and pays the issuance fees, a patent will be issued to such inventor or assignee.

Understanding the different types of patents and patent applications is an important aspect to protecting a patentable invention and should be considered and understood by inventors who are contemplating filing a patent. It can also be important to the process of enforcing and defending against enforcement of patents through litigation and must be considered and understood by patent owners contemplating filing a patent infringement lawsuit as well as by persons or entities defending a patent infringement lawsuit.