What is a Patent and How Can it Help Your Business?

By Josh Gerben, Esq.

If innovation is the lifeblood of your business, then success may depend on creating products, processes, and technologies that will fuel your company’s growth.

But, innovation is only the beginning. You also face the task of protecting your inventions for years to come. A well-constructed, legally-solid patent is the most essential part of that process.

What is a patent, and why is it so important?

A patent grants the right to exclude others from copying (or otherwise infringing) an invention, which may be a product, a process, or other technology. In other words, a patent will prevent others from making, using, selling, or distributing the invention without the patent owner’s consent.

However, a patent, and in many cases even a pending patent application, can be beneficial to your business in many other ways, for example, by:

• contributing as part of a powerful marketing tool, not just for sales but for your company’s image in the customer’s eyes, and
• generating a potential source of revenue through licensing or sales to other parties.

Searching for potential conflicts

In the U.S., the United States Patent and Trademark Office (USPTO) is the governmental entity that is responsible for processing, examining, and granting patent applications. Early in the patent process, it is often wise and recommended to search various patent databases, such as the USPTO patent database, in an effort to determine whether your invention is similar to any existing patents or published patent applications.

A properly conducted patent search is often an intricate and time-consuming process that may require a detailed review of often complex patent documents. Learn more about how to do a patent search.

That is why it makes sense to involve an experienced patent attorney right from the beginning who understands the intricacies of conducting a patent search and who can guide you through the process at every step.

How do you determine what is patentable?

Not every invention is eligible for a patent. For example, as an initial threshold requirement, the “subject matter eligibility” standard (under 35 U.S.C. 101 and implemented by the USPTO) provides that the invention must be directed to a process, machine, article of manufacture, or a composition of matter.

Once subject matter eligibility is established, other criteria must be met, including, for example:

• the invention must be useful, serving a particular purpose, and
• the invention must not only be new or novel but it must also be considered not obvious while taking into consideration all existing products, patents, public documents, etc.

Naturally, there are often plenty of nuances and potential roadblocks that may arise throughout the patent application process; however, a patent attorney can help you navigate those, and create a well-constructed application with the best chance of approval.

Now, let’s dig deeper into the three types of patents.

What is a Utility Patent?

Generally speaking, a utility patent is directed to the structural or functional features of an invention, such as how the product is made or how it works.

There are examples of products that are or once were protected by a utility patent almost everywhere you look: light bulbs, computers, appliances, musical instruments, GPS devices, and a multitude of other products.

A utility patent is especially valuable because it holds a term of 20 years; however, it can often be difficult to obtain and the process may take several months or years as the patent application winds its way through the approval process.

What is a Design Patent?

A design patent, on the other hand, will protect the unique shape or ornamental, non-functional features of a product, such as how it looks.

One of the earliest examples of a design patent is the Statue of Liberty (1879); another is the original curved Coca-Cola bottle (1915). More recent examples are also everywhere you look, including Crocs, Oakley sunglasses, GPS-related devices, or even a computer mouse.

While a utility patent lasts for 20 years (calculated from the filing or priority date) and requires periodic maintenance fees, a design patent has a term of 15 years (calculated from the issue date) with no maintenance fees. It should be noted that many inventions or products can qualify for both a utility patent and a design patent if the requirements of each are met.

What is a Plant Patent?

Less common are plant patents, which, like utility patents, have a term of 20 years from the filing or priority date. These patents can apply to plants that are reproduced or created by means other than seeds, such as grafting, layering, budding, or root cuttings.

The Haas Avocado is one example, along with hundreds of roses and other flowers that are often named after their creators.

Submitting an application

If your invention meets all the necessary requirements, it’s time to prepare the patent application and submit it to the USPTO. Its status immediately turns to “patent pending” during a review process that can take several months or even years, depending on numerous factors such as the current backlog and staffing levels at the USPTO, as well as, in some cases, the complexity of the invention.

As mentioned above, if a utility patent is granted, there will still be periodic maintenance fees throughout the 20-year term. An experienced patent attorney can advise you when action becomes necessary.

Enforcement begins with you

While the USPTO is responsible for reviewing and granting patents, it is not responsible for any patent enforcement. Identifying and pursuing potential infringement of your patent is your responsibility.

You should contact an experienced patent attorney to assist with any enforcement options, preferably before any contact is made with the potential infringer.

Making a complicated process easier

The patent application process does not need to be as complicated as it may seem at first. Your business deserves the same protection for your innovations and new products as any other company, large or small. Establish and protect your patent rights by enlisting an attorney who specializes in patent law. Get in touch with us and we’ll guide you through the process.

• SHARE THIS ARTICLE ON:

Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.