Inventors face many challenges in protecting their intellectual property (IP) in the United States. With the first-to-invent system — which means that the inventor who files for IP protection first is awarded the rights — inventors have to balance protecting their IP with keeping it secret until they are ready to disclose it publicly.
1. How to file a patent application
If you are about to file a patent application, you might expect a lot of hurdles along the way. The process may seem complicated, but it’s actually pretty straightforward once you get the hang of it. Here are a few things you should know about how to file a patent application: 1) Make sure you have an original idea to patent.The laws protecting inventions differ from one country to another. In the United States, the protection for inventions extends to a generator, process, or machine if the invention reduces a desired activity to its simplest form. To secure the patent for an original idea, you must provide evidence that you had a particular idea that was not described previously. For instance, imagine you want to take a photograph of birds in their nest. You could take a picture of all of the birds, color-code the babies, then label the eggs. However, this would not constitute an invention because without the patterns, you can’t easily identify each baby. In contrast, in Japan, the father is entitled to claim an invention developed by his female partner; in China, only the mother can claim an invention. Another way to protect your invention is by criminalizing copying/distribution. As part of the Digital Millennium Copyright Act (DMCA), parties that “knowingly or knowingly” file a work based on a copyrighted work without the authorization of the copyright owner can be subject to civil and criminal penalties. The laws of other countries differ, but this is an important rule to remember. Does your invention require something that exists in the physical world? Then you must consider whether you can secure a patent that covers that idea. For instance, if you want to sell a recycled plastic bottle, you should consider whether the patent on the idea is available in your country. If not, you may have to consider whether or not you’d be able to bring a lawsuit to enforce your patent. If you are uncertain whether a patent is available in your country, consider purchasing a patent consultancy’s formal or register of interest form.
2. Is your invention patentable?
If you’re trying to register a new invention with the United States Patent and Trademark Office, you may be wondering if your invention is patentable. If so, you’re in luck because there are a number of things to consider before you file for your patent.
To file a patent on a new non-risky invention, you’ll need a lawyer and the proper filing fee. Inventors who have an invention that is not patented will be able to gain access to many kinds of financial support. However, if you’re considering patenting an existing invention and making it publicly available, you may face some challenges protecting your invention from infringement. According to the U.S. Copyright Office, famous examples of why you can’t patent prior art include:
Patents are intended to spur innovation. If you plan to use patents to protect your invention, ensure that your goal is to encourage others to build on your invention rather than to purchase it and retain ownership.
“Oil and gas weren’t invented in a day. No one person is the inventor of an idea. Ideas accumulate in inventors’ brains. Over time new contributors have an invention. Patents are arbitrary.” — Steve Jobs
Before you decide whether or not to patent an idea, you should determine whether the idea you intend to patent is something you can patent, and if not, what you think a reasonable royalty would be.
In the United States, patents are granted to the original inventors and recipients of patent applications, which means they need to own the patent in order for the United States to grant them. The United States grants patent to inventions that can be done, and not disclosed until after the patent is granted. In other words, in order to receive a patent, the invention has to exist and be usable.
Many inventors don’t consider protecting their invention as critical to obtaining funding and obtaining additional patents.
“[Patents] give an inventor lots of control, but they are frequently abused.
3. Patentability requirements in the United States
To qualify for a patent in the US, an invention must be new, useful, and non-obvious. New means that the invention must not have been used or known to anyone else in the US before the patent application was filed. Useful means that the invention must function as described in the patent application.Non-obvious means that the invention may not be obvious to the average person. Thankfully, the government incentive is there for inventors to protect their ideas.
Patents are one way that inventors can protect their IP without going through every possible legal option. The deadline for filing for a patent is October 31st of each year. Upon filing for a patent, an inventor must give the patent application to the United States of America within six months of filing. Importantly, other countries have different filing deadlines. Finding that the patent application is complete and the inventor is ready to file is important.
After disclosure of the invention, the inventor can either keep the patent application private or give it to other parties to protect their IP. Many patent families are recognized, and early patent disclosures are vital for successful patent litigation.
Patents have important public policy implications. For example, they encourage domestic innovation, and by extension, create jobs here in the United States. By giving party-specific licenses, patents can be licensed to companies abroad, even in countries that do not respect protections of intellectual property. There is evidence that allows foreign companies to gain access to U.S. patents more easily. By entering into these types of international arrangements, companies can find the most advantageous terms offered by the United States. To maximize the potential benefit from such arrangements, American companies should be willing to enter into a broad range of agreements with other countries.
In addition, patents are used to protect trade secrets, and trade secrets are among the most valuable IP assets. Protecting trade secrets is not an easy task, and no two inventor ratify the same type of arrangement. The public benefits from more innovation led by American inventors.
4. How long does it take to get a patent?
Nazarian says that the time it takes to get a patent depends on whether your product is a utility (how it works) or design patent (how it looks) but the process of design patents is typically faster than utility patents, which can take anywhere from six to 24 months.
IP lawyers are also acutely aware that patent applications are publicly available data. Inventors who might also need to protect their idea against others might be tempted to file one just to speed up the process. “There’s a real disconnect between what’s going on with design patents,” Nazarian says. “Some of the fastest-moving IP cases I’ve seen were essentially inventors filing to get more time to pitch their invention to others, which is similar to the scope of utility patents — but with their invention turned into a whole new thing.” Such “orphan patents,” he says, “are problematic because, in some cases, they just create confusion around the public nature of a patented idea and inadvertently prevent the idea from being commercialized.”
Patent attorney Shawn Nazarian, founder of the patent and IP law firm Adler Lamb Radio in Chicago, says that patent applications are public data. “There’s a real disconnect between what’s going on with design patents,” he says. “Some of the fastest-moving IP cases I’ve seen,” he says, “were essentially inventors filing to get more time to pitch their invention to others, which is similar to the scope of utility patents — but with their invention turned into a whole new thing.” (Shawn Nazarian)
For skilled inventors, however, the speed at which patents come into existence, or as inventor-hired experts refer to them, patent martyrdom, contributes significantly to their delaying their own patent applications. “It’s much easier to inveigle yourself into wanting to have a patent [publicly] versus actually securing it,” says Adam Hayes, a patent attorney who’s been practicing for more than 20 years and reviewed a sample of nine patents from start to finish.
5. How much does it cost to get a patent?
Getting a patent is cost-prohibitive for most small businesses and inventors. It can cost $10,000 and up to $30,000. It’s not meant for small businesses, and it’s not worth it. You can get a trademark for much less.
When your business concept is ready, taking the time to get a U.S. trademark application is crucial to protecting your investment.
The only way you can protect your invention through the first-to-invent system is to file for the U.S. trademark. Once you trademark your invention, you have full legal protection.
“Trade marks ‘commonly‘ register to protect a variety of goods and services. For example, U.S. marks register sock sellers, auto dealers, jewelry sellers, rock and roll disc jockeys, snow blowers, and restaurant menus. The trade mark registration marks ‘commonly’ granted to ‘inventors’ give advantage to the inventor but are not exclusive in all applications involving the same goods or services. Trademark applicants must prove, among other things, that their invention is similar in quality or utility to the marks registered.
In order to obtain protection under the U.S. Trademark Act, you must protect your invention in the United States and file it for trademark protection. Thus, if your U.S. Patent Application for your invention is not filed for trademark protection, there is no legal protection for your invention in the United States.” — Blake J. Trinidad, Trademark Law: Protect Your Invention Before it Becomes Common Law by the American Intellectual Property Law Association
There are a lot of things to consider before deciding on filing for a trademark. Some of the questions you can ask include:
Getting a trademark is a long, complicated process. If you are a starter or small business, it’s not a cost-effective financial investment. If you’re not sure about the legalities of registering a trademark, don’t do it. It’ll be a costly mistake in the long run.
I had an unplanned business idea one day that didn’t have a ready product to sell.
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