Patent Basics
by Glenn R. Smith
Background
A US patent is a property right issued to an inventor by the Patent and Trademark Office (PTO), which is a bureau of the Department of Commerce. A patent grants the inventor the right to exclude others from making, using, offering to sell, selling or importing an invention. Each country has different patent laws, and a patent only offers protection in the country issuing the patent.
Types of US Patents
The three types of patents available in the US are utility, design and plant patents. A utility patent is for new and useful processes, machines, articles of manufacture and compositions of matter or any new and useful improvements thereof. The term of a utility patent issued from an application filed on or after June 8, 1995 is 20 years from the filing date. A design patent is for new, original ornamental designs for an article of manufacture and has a term of 14 years from the issue date. A plant patent is for distinct and new asexually reproducing plants.
Common Misconceptions
A patent does not grant the inventor an exclusive right to practice the patented invention. The patent grant only allows the inventor the right to exclude others from practicing the invention. Indeed, an inventor of an improvement to an invention patented by another may be excluded from practicing the improvement.
A patent application cannot be filed for a bare "idea" with nothing more. An application must describe the manner and process of making and using an invention. However, the invention does not have to be "reduced to practice" for a patent application to be filed. That is, a prototype of an invention is not required unless requested by the PTO.
Patent Applications
A patent application must include a specification describing the invention, associated drawings, if appropriate, and claims that define the invention. The patent specification normally includes the following subheadings: Background of the Invention; Summary of the Invention; Brief Description of the Drawings; Detailed Description of the Preferred Embodiments; and Abstract of the Disclosure. For the application to be complete, an inventor must also submit a declaration and filing fee. Typically, the inventor also files an Information Disclosure Statement listing prior art that is material to examination of the application, such as patents and published articles on related inventions.
Fees
The basic fees that the PTO charges in connection with a utility patent are $690 for filing; $1,210 for issuing; and $830, $1,900 and $2,910 for maintenance, due at 3.5, 7.5 and 11.5 years from issuance, respectively. The filing fee is higher if more than a minimum number of claims are filed (3 independent claims, 20 claims overall). These fees are reduced by half for independent inventors, nonprofit organizations and small businesses, who must file a Statement Claiming Small Entity Status.