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How to Figure Out if Your Business Needs a Patent

For those unfamiliar with patents, there’s often a tendency to group them into the same category as trademarks and copyrights. Established entrepreneurs know that it isn’t right to confuse the three types of intellectual property. Trademarks protect unique words, phrases, symbols, or designs that identify your brand. Copyrights cover original works of authorship, which can range from literary (books) to musical (movies or songs), and other artistic works like architectural or sculptural creations.

According to the United States Patent and Trademark Office (USPTO), a patent[1] for an invention is the grant of a property right to the inventor, for inventors that create a brand-new invention. From the date the application was filed, a patent’s term is generally 20 years.

Normally when someone brings a new and exciting concept to life, they want to share it with the world. Before they can do this, however, they must first determine if the invention can be patented, what type of patent the invention should be categorized as, and how to go through the application process with the help of the USPTO which issues patents.

How do I know my invention is considered patentable?

If your invention is an idea or suggestion that has not yet been fleshed out as an invention, it cannot qualify as a patent. The USPTO states that any person who “invents or discovers any new or useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”[2]

Let’s unpack that meaning, bit by bit, because each word has its own specific definition.

  • Process: This is defined by the law as the process, act, or method, typically from an industrial or technical process.
  • Machine: This is in reference to its literal definition of inventing an actual machine.
  • Manufacture: Any articles that are made by the invention.
  • Composition of matter: The chemical makeup of the invention which may include new chemical compounds mixed within its ingredients.
  • Useful: Perhaps the most important word in the sentence, the invention must have a useful purpose and be able to operate as intended.

Outside of this meaning, an invention must also be defined as “new” in the patent law to be patentable. An invention may not be patented if someone else has already patented the invention and made it available to the public. The best way to ensure that your invention is patentable is to conduct a search of all previous public disclosures to see if your invention has been publicly disclosed. If it already has, you are not eligible for a patent. If it has not, and you meet all of the existing terms defined above, you can move on to determining the categorization of your invention.

What are the three types of patents?

Currently, the USPTO recognizes three types of patents.[3]

  1. Utility patents. This is precisely the type of patent that was defined earlier—a useful process, machine, article of manufacture, composition of matter, or new or useful improvement. The USPTO states that utility patents are the most commonly filed applications. 
  2. Design patents. These patents was granted to anyone who invents an original and ornamental design for an article of manufacture.
  3. Plant patents. Yes, it is possible to get a patent for a plant that you invented! You may also apply for a plant patent if you discovered or asexually reproduced a new variety of plant.

Once you have an understanding of the category your invention falls under, it’s time to begin the patent application process.

How to apply for a patent.

When applying for a patent, you may apply on your own or hire an attorney[4] to assist you. Both situations are a time-consuming process that require a great deal of effort and attention to detail. For the sake of this blog post’s length, I will highlight the primary areas of focus of the patent’s initial application.

When filing an initial patent application, the application is made to the Director of the United States Patent and Trademark Office. The application may be mailed or submitted online using EFS-Web, the UPSTO’s electronic filing system for patent applications.

For those filing as utility or plant patent applications,[5] they may file as a provisional (which is a lower-cost patent filing) or non-provisional application. Most choose to file non-provisional applications which must include the following items:

  1. A written document that includes a specification. This specification must conclude with a claim that distinctly points out and claims the subject matter the applicant regards as the invention. This document should be kept on a separate sheet from other application materials. It is a key piece of the application since claims define the scope of protection that the patent affords the invention. Outside of claims, additional information required include the invention’s title, background of the invention, a brief summary of the invention, a detailed description of the invention, and a brief description of the invention’s drawings.
  2. Drawings. These are specifically requested for utility and design patent applications in order to understand the invention. Drawings come with several rules for acceptable submission. The applicant may draw the invention in clean, black ink along with a second drawing in color. Photographs, though generally not permitted in these types of applications, may also be accepted, if photography is the most practical medium to illustrate the invention. Photos should be in black and white as well as color. Drawings submitted should provide identifying indicia (like the invention’s title and inventor’s name), contain as many views possible to show the invention, and illustrated to scale. Tables and chemical or mathematical formulae may also be submitted. For more details on drawing requirements, check in with the USPTO.
  3. An oath or declaration. This is a formal statement made by the inventor stating that they believe they are the original inventor of the claimed invention in the application. The inventor must also include their signature to authorize the statement.
  4. Fees for filing, search, and examination. When submitting payment, the owner of the invention must first determine if they are a small or micro entity as this may reduce the amount due. In addition to filing, search, and examination fees, patent applications also include a basic fee payment and an issue fee. Fees are subject to change in October each year, so to find out how much the current fees are it is recommended that the owner of the invention consults the USPTO website.[vi]

Additional filing details may be found on the USPTO website, including key differences between small entity or micro entity status, further information about the amount of time it will take to hear back from the USPTO after submitting the application and expedited examination options. Keep in mind that the application will not be reviewed if it is missing any required parts, so do not submit in the mail or online until you have thoroughly covered each area.

Author of the article
Deborah Sweeney
Deborah Sweeney is the CEO of MyCorporation is a leader in online legal filing services for entrepreneurs and businesses, providing start-up bundles that include corporation and LLC formation, registered agent, DBA, and trademark & copyright filing services. MyCorporation does all the work, making the business formation and maintenance quick and painless, so business owners can focus on what they do best. Deborah received her Juris Doctor and Masters in Business Administration degrees from Pepperdine University in 1999. Follow her on Google+ and on Twitter @deborahsweeney and @mycorporation.
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