What is a Patent?
A US patent is a set of rights granted by the United States Patent and Trademark Office (USPTO). In a nutshell, a patent grants the holder the right to control the use, production, sale, and license of the subject of the patent for the life of the patent. Patents are granted for useful inventions (a process, a machine, a method of manufacture, and a composition of matter are each included in the term invention), non-functional designs (aka the aesthetic appearance of something), and plants (yes, the living biological kind). Patents granted on useful inventions are called Utility Patents, and is the type most people are referring to when using the word patent in non-legal settings. The different kinds of patents have different life spans. A Utility Patent has a term (life-span) of twenty (20) years from the date of filing the application for the patent.
How can I get a Patent?
An inventor or a licensed and registered patent attorney can apply for a patent through the USPTO. The application must first conform to the style and formatting requirements set by the USPTO. In the case of a utility patent the application must disclose a novel and non-obvious useful invention. The application must disclose the invention with sufficient written description to enable the invention to be practiced. This is accomplished with various sections such as drawings, field of art background, detailed descriptions of the invention and embodiments, and claims (statements defining the limits of what the invention is). The USPTO fees must be paid. An oath attesting to the inventor’s belief that they are the original inventor of the invention must be submitted. The USPTO will assign the application to an examiner. The examiner will issue communications known as Office Actions containing objections, rejections, or other information. If an issue goes unresolved, the examiner may issue a notice of abandonment. However, if all issues have been resolved – whether favorably or not – the examiner will issue either a notice of allowance or a final notice of rejection. If the application was issued a notice of allowance, the applicant must then pay the issue fee and then the patent will be issued. Thereafter periodic maintenance fees must be paid to keep the patent alive.
Why do I need a Patent?
There are many reasons that you might have to seek patent protection. But, there may be as many (and perhaps more compelling) reasons that you might have to not pursue a patent. Let’s first look at why you might want a patent: Patents can restrict competition leading to greater market share or even dominance. The rights can be wielded according to both offensive and defensive strategies. Patents can be licensed to others for royalties or sold outright. Patents may have value individually or as a portfolio in attracting investors on the premise that there is greater potential for a return on investments due to the rights a patent holder can exercise. Patents are also seen as adding marketing value based on the positive perceptions consumers typically associate with products displaying patent markings. The application process may uncover similar inventions or market competitors. Now let’s switch to why you may not want or even need a patent: It may be the case that your intellectual property is more valuable as a trade secret. The cost of obtaining a patent can be high, while funds may be low. The time it takes to obtain a patent can be years, while the market may be time sensitive. The scope of coverage for the patent may be narrow if the field of art is crowded. If the scope is narrow, the value may decrease below expected returns on the sale or license of the product. If the scope is narrow, it may be difficult to enforce against competitors or infringers. The cost of defending a patent may be high. The cost of enforcing a patent may be high. Intellectual property always has some value, but in particular with patents, it’s best to consider what that value is well before filing an application.
How much does a Patent cost?
Application, registration, and maintenance of the patent will each cost certain fees assessed by the USPTO. A schedule of these fees can be seen here. Currently, the basic USPTO filing fee for a utility patent can range between $70-280 depending on the filing inventor’s qualifications and the application method. For example, non-electronic filing can increase the fee by $400. There are even additional fees for translations, applications with more than 20 claims, and applications with more than 100 pages. But that is just for the filing fee and there are several other compulsory fees that the applicant must pay along the process of the application processing (aka patent prosecution). There is a search fee ($150-600), an examination fee ($180-720), a post allowance issue fee ($240-960), and maintenance fees ($400-1,600 at 3.5 years, $900-3,600 at 7.5 years, and $1,850-7,400 at 11.5 years) just to name a few of the big ones. There are other fees associated with extensions of time for responding to USPTO communications, for correcting application mistakes, and for appealing USPTO examiner decisions. Make no mistake; getting a patent will be a costly endeavor (at least $720 USPTO fees, in a best case scenario involving an inventor qualifying under a “micro-entity” status). Keeping the patent alive once it has been issued involves paying maintenance fees (at least $3,150 USPTO fees, in a best case scenario involving an inventor qualifying under a “micro-entity” status). Since there are many penalty type fees, and many ways to lose your patent rights, hiring a skilled patent attorney is extremely valuable and recommended. An attorney will charge a separate fee for the services they perform. Be clear on what you’re getting for your money.