Obtaining Your Own Patent Should Be Easy, Intellectual Property Law Article

Many of us muse about the million-dollar idea: the invention that will make life easier for others and more lucrative for us. Most of these ideas never get off the ground, however; we decide it's not really worth the time and effort to create the perfect dog toothbrush, clothes hanger or juice squeezer. But every now and then we may hit on a winner--an idea worth developing, marketing and protecting. In these cases, we must turn to the patent laws for help.

A patent is a document issued by the U.S. Patent and Trademark Office (PTO) that grants a monopoly for a limited period of time on the use and development of an invention which the PTO finds to qualify for patent protection. This right lasts 14 years for design patents and up to 20 years for patents on useful inventions.

Because a patent grants the inventor a monopoly on his or her invention for relatively long period of time (between 14 and 20 years depending upon the invention), patent applications are rigorously examined by the Patent and Trademark Office (PTO). Typically, a patent application travels back and forth between the applicant and the patent examiner until both sides agree on which aspects of an invention the patent will cover, if any. This process typically takes between one and two years.

If an agreement is reached, the PTO " allows" the application and publishes a brief description of the patent in a weekly publication called the Official Gazette. If no one objects to the patent as published, and the applicant pays the required issuance fee, the PTO provides the applicant with a document called a patent deed, which we colloquially refer to as a patent. The patent deed consists primarily of the information submitted in the patent application, as modified during the patent examination process.

What information is typically included in a patent application?

There is no such thing as an automatic patent through creation or usage of an invention. To receive patent protection, an inventor must file an application, pay the appropriate fees and obtain a patent. To apply for a U.S. patent, the inventor must file the application with a branch of the U.S. Department of Commerce, known as the U.S. Patent and Trademark Office, or PTO. A U.S. patent application typically consists of:

an Information Disclosure Statement--that is, an explanation of why the invention is different from all previous and similar developments (the " prior art")
a detailed description of the structure and operation of the invention (called a patent specification) that teaches how to build and use the invention
a precise description of the aspects of the invention to be covered by the patent (called the patent claims)
all drawings that are necessary to fully explain the specification and claims
a Patent Application Declaration--a statement under oath that the information in the application is true, and
the filing fee.

In addition, small inventors often include a declaration asking for a reduction in the filing fee.

Understanding the Provisional Patent Application

Often inventors want to have a patent application on file when they go out to show their invention to prospective manufacturers because it will discourage ripoffs. Also, inventors like to get their invention on record as early as possible in case someone else comes up with the same invention. To accomplish both these goals, an inventor may file what is known as a Provisional Patent Application (PPA). The PPA need only contain a complete description of the structure and operation of invention and any drawings that are necessary to understand it--it need not contain claims, formal drawings, a Patent Application Declaration or an Information Disclosure Statement. The PPA isn't examined when submitted. Instead, it sits in a PTO file and is examined only if the inventor files a regular patent application on the same invention within a one-year period and the applicant wishes to claim the earlier filing date. (An inventor would need to claim the earlier date only if prior art surfaced after the PPA's filing date but before the filing date of the regular application, or if a patent application the same invention was filed by another inventor and the PTO has to decide which applicant should get the patent.)

What happens if there are multiple applications for the same invention?

If a patent examiner discovers that another pending application involves the same invention, and that both inventions appear to qualify for a patent, the patent examiner will declare that a conflict (called an interference) exists between the two applications. In that event, a hearing is held to determine who is entitled to the patent.

Who gets the patent depends on such variables as who first conceived the invention and worked on it diligently, who first built and tested the invention and who filed the first provisional or regular patent application. Because of the possibility of a patent interference, it is wise to document all invention-related activities in a signed and witnessed inventor's notebook so that you can later prove the date the invention was conceived and the steps you took to build and test the invention or quickly file a patent application.

How are U.S. patents protected abroad?

Patent rights originate in the U.S. Constitution and are implemented exclusively by federal laws passed by Congress. These laws define the kinds of inventions that are patentable and the procedures that must be followed to apply for, receive and maintain patent rights for the duration of the patent.

All other industrialized countries offer patent protection as well. While patent requirements and rules differ from country to country, several international treaties (including the Patent Cooperation Treaty and the Paris Convention) allow U.S. inventors to obtain patent protection in other countries that have adopted the treaties if the inventors take certain required steps, such as filing a patent application in the countries on a timely basis and paying required patent fees.