PATENT PROCESS OVERVIEW
So you’ve just come up with the greatest solution to a problem and believe you need a patent. Now what? Most people have some understanding of what it means to have a patent, but few know the actual process until it is time to file an application. Many missteps and traps await the uninformed, so the best advice is to seek out a patent attorney early in the process.
TYPES OF PATENTS AVAILABLE
In general, there are three types of patents that have enforceable legal rights attached to them: utility, design, and plant patents. Each type of patent covers a separate and distinct category of products.
Utility patents cover the majority of what a person would consider a patent. This category includes applications that contain utility in the invention. For example, a new flipper design for scuba divers, or an inflatable life jacket. Utility patents provide patent protection for 20 years from the filing date of the non-provisional patent application.
Next, are design patents which covers what the ornamental design or features of a product. An example of a design patent would be a lampshade that is in the shape of a space shuttle. In other words, a lampshade’s primary feature is utility in nature to “keep light out of your eyes” but the unique ornamental shape of the lampshade can be protected in a design patent. Design patents provide patent protection for 14 years from the issue date of the patent.
The third category of patents are plant patents, which cover discovered or invented plants that are asexually reproduced. An example of a plant patent would be a thorn-less rosebush. Plant patents provide patent protection for 20 years from the filing date of the plant patent application.
THE PATENT PROCESS
For each patent, a corresponding patent application must be filed. In the United States, an additional feature is available for utility patents, the provisional application. A provisional patent application is just that, provisional. There are few requirements to filing a provisional application and the main idea is to hold a filing priority date, which is very important. For example, if an inventor invents a product on Monday and tells their friends all about it publicly on Tuesday, the Tuesday disclosure will count against them in many international patent offices, which have an “absolute novelty” bar. In other words, the foreign country would consider the public disclosure as prior art and if it disclosed the important workings of the patent, then no patent would be granted in that country. If nothing is done after one year of having the provisional patent application filed, then the application becomes abandoned.
Prior to the one-year deadline or filed as a standalone application, a non-provisional application is filed for a utility patent application. This application is a formal application with many requirements to successfully file and be granted a filing date. A non-provisional patent application is an application that is examined by a Patent Examiner at the Patent Office who then decides whether to allow the application to issue as a utility patent.
Design patent applications do not have a corresponding provisional application, they are considered only as design applications. The same goes for plant patent applications. Examination of each of these is similar to a non-provisional application.