The world of patent protection is complex and detailed, with many people needing clarification about the level and length of protection, the expense, and more. At a minimum, the idea of a patent is simple: for a set period, a U.S. patent protects inventions from being made, used, or sold without the inventor’s permission in the United States.
However, patent portfolios have great utility in long-term business strategy and can be leveraged for the benefit of the enterprise. For example, entrepreneurs looking for funding can demonstrate the value of their start-up by showing their patent portfolio to potential investors. Additionally, when you have a patent pending, you can market your product as the same, and a brief statement in your advertising confirming you have a patent pending can ward off competitors from stealing or using your ideas.
The United States Patent and Trademark Office (USPTO) grants patents in three categories:
- Utility: The most common patent granted, this protects the function or usefulness of an invention, from machines to processes, compositions of matter or an article of manufacture. Valid for up to 20 years.
- Design: This protects the new, original ornamental design of an object. Valid up to 15 years.
- Plant: Protection of an invented or newly-discovered asexually reproduced variety of plant such as roses or orchids, for example. (Sexually reproduced plants, such as corn and soybeans are not protected.) Valid up to 20 years.
U.S. patent myths debunked
Myth: Anyone can get a patent.
Truth: Inventions must be new, useful, and non-obvious, and something that can be made or used. The USPTO holds new patents to four criteria:
- Inventions must be functional, not theories.
- A clear description of how to make and use the invention must be provided.
- The invention must be “new or novel,” meaning it has never been done before.
- The invention is “not obvious,” meaning not a change to something already invented.
Myth: A patent protects inventions worldwide.
Truth: U.S. patent protections only extend within the United States. For global or multi-country protections, additional patent applications must be filed in other countries.
For international patents, the World Intellectual Property Organization (WIPO) under the Patent Cooperation Treaty (PCT) allows applicants to file a single international patent application that provides protections in the PCT member countries (currently 157 countries).
Myth: A patent is valid forever.
Truth: U.S. patents last a maximum of 20 years, depending on the type of patent. Plant and Utility both extend for 20 years from the date of filing, while Design patents last 15 years from filing.
After 20 years, the invention enters the public domain, though there are some exceptions. If an application was delayed due to governmental interference, or a delay relating to war or national emergency, the patent holder may be eligible for an extension of the term. The Patent Term Restoration Act of 1984 allows some term extensions up to five years if the FDA approval process for a drug or medical device delayed the invention’s commercial usage.
There are other ways to extend the life of your invention before the patent expires:
- File a patent application for any improvements you’ve made to the original invention before the patent expires.
- Develop a plan to maximize commercialization of your invention before the patent expires.
- Consider licensing to other companies after the patent expires so you can continue to generate revenue.
Myth: Patents prevent people from infringing on your invention.
Truth: It is up to the patent holder to enforce their patent rights, there is no organization overseeing the usage or manufacture of patent inventions. Patent owners have the option to sue in federal court and seek damages.
One interesting caveat on infringement is that according to the USPTO, “the U.S. government may use any patented invention without permission of the patent owner, but the owner is entitled to compensation for such use.”
Common pitfalls to avoid when seeking a patent
Filing too late
Waiting too long to file an application risks another party finding out about an invention and filing their own patent or producing their own versions and thus eliminating the novelty factor of yours.
Making it public
Disclosing an invention to the public before filing for a patent could eliminate your patent rights.
Failing to describe the invention properly
The USPTO requires a detailed, clear description of the invention and its scope. If the description is too broad or narrow, it may invalidate the application.
Failing to maintain a patent
The USPTO requires regular maintenance fees to keep a patent active. Failing to pay these fees will cause your patent to expire.
Not working with an experienced patent attorney
The patent process can be complex, and a small misstep can result in an application rejection. An experienced attorney can assess your chances of obtaining a patent, navigate the process, and ensure that your application is properly prepared and filed.
Messner Reeves LLP’s Intellectual Property team is the best at what they do. From strategy and protection to prosecution and litigation, our intellectual property attorneys are nationally acclaimed experts in protecting intellectual property domestically and internationally.
Contact us today to learn more about our services.
