Patents

A patent is a grant by the United States Patent and Trademark Office (USPTO) that allows you to prevent others from making, using, selling or importing an invention, design or plant for a limited period of time. Patents are governed by federal law.

If you have an invention that you want to patent, you may be reluctant to go to an attorney or other professional for help, because you are afraid they will steal your idea. You should know that if you seek the assistance of an attorney, he or she is required to keep the information about your invention confidential due to the attorney-client privilege. Nevertheless, if you are still concerned, you can ask the lawyer to sign a nondisclosure Agreement before you disclose any information.

There are several different types of patents:

  • Utility patent: applies to processes, machines, manufactures, compositions of matter or improvements on old ideas that are novel, useful and not obvious to others in the field of the invention. Many inventions will cover more than one of these categories, but there will usually be only one patent. This is the most common type of patent. A utility patent stops others from making, using, selling, or importing the invention for 20 years from the filing date of the patent application.
  • Design patent:  applies to new and original designs that ornament a manufactured item. The design cannot be just functional or useful; it must be ornamental or artistically pleasing. A design patent can stop others from making, using, selling or importing the design for 15 years from the issue date of the patent.
  • Plant patent: applies to new, nonobvious, asexually reproducible plants. This not a very common type of patent. A plant patent can stop others from creating the plant or profiting from it for 20 years from the filing date of the patent application.

“Novel” means that the invention is different from all previous inventions. If the invention has already been described in a public document, or been in public use or on sale, the patent will be denied.

“Nonobvious” means that the invention would not have been obvious to someone skilled in that particular field or industry at the time you made your invention. It may be difficult to determine if the USPTO is going to consider your invention nonobvious because it is a very subjective determination.

“Useful” means that the invention must offer some real-world benefit or help people complete real-world tasks. However, sometimes patents are granted to inventions that are merely for humorous purposes, like a singing fish on a plaque. Only a utility patent must be useful; design patents and plant patents do not require that the invention be useful.

Some types of inventions do not qualify for patent protection, such as laws of nature, substances that organically occur in nature, mathematical formulas and certain surgical methods/protocols. Also, inventions that are useful only for illegal activities cannot be patented.

Legal Editor: Lawrence Goodwin and Dayrel Sewell, July 2016

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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