If you’ve ever had an idea for an invention or a process, you may have wondered whether you should get a patent. A patent is a legal filing that demonstrates that the holder of the patent is the creator of an idea, machine or process.
A patent also gives the holder exclusive rights to use, produce, reproduce and sell the product or service derived from the patent.
Unlike copyright, which is assigned at the point of creation, a patent must be granted by the United States Patent and Trademark Office (USPTO). This agency is responsible for patent processing and the maintenance of patent records.
In order to become a patent holder, you must file an application with the USPTO. While it is often advisable to work with a legal professional who specializes in patent law to do this, you can file an application yourself.
If you choose to do so, you’re encouraged to review the Manual of Patent Examining Procedure to get a better understanding of what is required.
What Are The Different Types Of Patents?
Before you can begin the process of applying for a patent, you will first need to think about what type of patent you will need. There are three different patent types recognized by the USPTO, and which one you need will depend on the makeup and intent of your idea or invention.
Utility patents are common among entrepreneurs and small business owners. These types of patents involve processes, machines, the results of manufacturing or the composition of an invention.
Utility filings can be completed on a provisional basis, meaning they can be filed with or without a finished product. A non-provisional patent can be filed at a later date.
Design patents are another common type of filing for entrepreneurs who have come up with a novel design for a product. These differ from utility patents as a design patent only covers the appearance or physical design of a product whereas a utility patent covers the actual mechanisms of action that define the product as it is to be used.
Plant patents are the third type of patent, and these are specifically reserved for entrepreneurs who have created a new type of plant. Cultivating a new hybrid species of flower or chili pepper may be a scenario that would call for a plant patent.
What Is Involved In The Patent Process?
The first step in registering a patent is to fill out an application with the USPTO. You may consider working with a patent attorney to determine how to get a patent with the least amount of work on your part.
A patent attorney can not only assist you with the filing process but can also represent your interests in the event that someone infringes upon your patent in the future.
When you begin to put together your application for a patent, you will need to do a search of existing patents to ensure that your idea or invention is not already patented. If a patent already exists that is too similar or involves a majority of your ideas or processes, you may be denied a patent.
Can Someone Else Patent My Idea?
Whether or not someone else can patent your idea, machine or process depends on how similar their filing is to yours. This is where having a patent attorney on your side really becomes a necessity. The law looks at the date of a patent filing and the specific wording of its background statement and descriptions.
Drawings that accompany a patent application will also be scrutinized to compare how similar two products or processes are to one another.
Another issue you may face is whether or not any part of your patent filing is within the public domain. If an existing patent has not been maintained or a period of time has passed since the patent was granted, the idea or design may fall into the public domain where anyone is free to use parts of the patent.
For utility patents, this occurs after 20 years. For design patents, transfer to the public domain takes place after 14 or 15 years depending on when the original patent application was filed.
Is Getting A Patent The Same As Getting A Trademark?
The question of whether or not you need to register a trademark when you file a patent is a common one, especially considering that the USPTO also handles trademark registration.
There are some very distinct differences between patents and trademarks, just as there are differences between patents and copyright assignments.
A trademark is registered for items that identify a business or product. This is similar to a design patent, but the key difference is that a trademark is not concerned with how a product or service is used. A patent assigns use to the product regardless of a trademark.
This means that you can’t create and sell a process or product that has been patented, but you can use and sell an existing process or product that has not been patented, you just can’t use the same trademark.
An example of this may be where someone creates a method of producing toasted hamburger buns on a conveyor belt and trademarks it as “Joe’s Toast-O-Matic”. If the inventor has not patented the process, you can use the same process, but you can not call it Joe’s Toast-O-Matic.
This is because despite the process not being restricted by a patent, the name has been trademarked and its use is therefore restricted.